RE2014/1091, Transcript of Proceedings [2015] FWCTrans 70 (17 February 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1051323-1

DEPUTY PRESIDENT LAWRENCE

RE2014/1091

s.512 - Application for a right of entry permit

Application by Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
(RE2014/1091)





Brisbane

10.21AM, WEDNESDAY, 28 JANUARY 2015

Reserved for Decision

PN1

MR E. WHITE: I seek leave to appear for the applicant in this matter. I am not sure if leave has previously been granted.

PN2

THE DEPUTY PRESIDENT: No. I think what we have done so far is to have a couple of telephone conference mentions of the matter and I think your appearance was foreshadowed as was Mr Herbert's, but this is the first time.

PN3

MR WHITE: I formally seek permission under section 596. We think granting that permission will enable the matter to be dealt with efficiently and there are some particular matters which we would be able to assist the Commission on.

PN4

THE DEPUTY PRESIDENT: Thanks, Mr White. We will take Mr Herbert.

PN5

MR A. HERBERT: Yes. Thank you, your Honour. I seek permission to appear on behalf of the director of the Fair Work Building Commission. The director gave notice on 18 July 2014 to the Commission under section 72 of the Fair Work Building Industry Act 2012 that the director propose to make submissions and my appearance here today is pursuant to that notice to the Commission. In respect of permission for counsel to appear, I enthusiastically agree with my learned friend's submissions and that would be the last thing I agree with him today, but it is a matter manifestly that does involve and would involve, perhaps, some fairly novel points that may not have yet been properly decided and we think that counsel will be of assistance to your Honour.

PN6

THE DEPUTY PRESIDENT: Thank you. Given the fact that there is mutual consent, if I can put it that way, to legal representatives appearing, given the nature of the matter, I am certainly of the view that the efficient conduct of the matter and interest of the parties, that it will be well served by permission being granted. So, I will grant permission to both of you pursuant to section 596 of the Act. Could I just make a couple of comments just before we launch into this matter. I did have a couple of telephone conferences I think with Mr Tiley, your instructing solicitor Mr White, and Mr Vallence on behalf of the inspectorate at the end of last year and as a result of that I issued some directions and from what I can see those directions have been complied with.

PN7

So, there has been submissions lodged by the CFMEU on behalf of the CFMEU on 20 November and then by the inspectorate on 19 December and again in reply by the CFMEU 23 January. So, I can say to both of you I have had a look at both of those submissions that have been lodged and of course prior to the file being allocated to me there were some submissions made by both sides, if I can put it that way, back in July and August. I have also had regard to those as well and of course I am conscious of the fact that this is an area where there are a number of matters which have been decided or entrained in recent times. By those directions have been complied with.

PN8

The only other preliminary thing I just wanted to just check was the appropriate shorthand description of the Fair Work Building Construction Inspectorate, what is it? The ABCC always sort of fell off the lips a bit easier to me.

PN9

MR HERBERT: I am instructed that my instructor refers to themselves as FWBC.

PN10

THE DEPUTY PRESIDENT: FWBC, yes.

PN11

MR HERBERT: Technically the director does those things, but the shorthand acronym is FWBC.

PN12

THE DEPUTY PRESIDENT: Yes. You can blame the former prime minister for this. All right, thank you. Ms Gillard I meant.

PN13

MR HERBERT: I was going through them.

PN14

THE DEPUTY PRESIDENT: Yes, I know.

PN15

MR WHITE: Well, that might lead us onto what we can blame on the current prime minister, but that's an instruction that I won't go to. So, if the Commission please, that is an accurate summary of the material. The submissions that we filed on 20 November 2014 were submissions in relation to the powers of the director. We do not make any point today that the director has no authority or power to attend this hearing, this application, and make the submissions that he has filed. The other two formal matters which are before the Commission are the declarations accompanying the application. There are two declarations which accompany the application. There is a declaration of Mr Jade Ingham of 19 June 2014 and a declaration of Mr Michael Ravbar of 19 June 2014.

PN16

The application and those declarations, your Honour, are made pursuant to (a) the provisions of the Act and the capacity to apply for a permit, but also they conform precisely with the requirements of the Act and the rules. Form F42, which isn't in this book but online, provides for the form to be used and we say there is no contention but that the application complies with the form F42. Rule 51(1) of the rules of the Commission, it provides that an application for an entry permit under 512 must be accompanied by a document evidencing the completion by the person who is to hold the permit of appropriate training and that is, we say, satisfied by conformity with form F42 which goes to both the form of the application and form of the declaration.

PN17

So, we say given the obligation to comply with the rules, rule 8 of the Commission, the rule provides that where forms are provided they must be utilised. And given the conformity with what the Act has provided and what the rules have provided, we say that the starting point for the hearing of this application should be that the Commission, and in particular the president who has approved the forms to be used in these applications, should now be satisfied subject to matters raised contrary to the position by the director that Mr Ravbar, absent those other arguments that the director raises, is a fit and proper person to hold a permit.

PN18

That is, the Commission has said this is what is required, this is the form of the application, this is the form of the declaration, there is conformity in relation to that, and so we say that the consequences of having the usual forms and absent the Commission being satisfied of some disentitling conduct on the material before the Commission, once again absent the material which has been filed by the director and what you will make of that, the Commission should be satisfied that Mr Ravbar is a fit and proper person. Now, the other introductory point I wish to make in relation to that is this. The director does not challenge the content of the declarations, although he makes submissions in relation to the adequacy of some of it. But as a matter of substance it is, we think, fair to say that there is no challenge to the content.

PN19

So, on that basis we say that the Commission should be satisfied that Mr Ravbar is a fit and proper person absent the Commission being satisfied that the material or the submissions relied upon by the director somehow displace that satisfaction. In some sense, and your Honour would have seen by the content of the submissions in January this year, the focus of this case really is the validity or otherwise of the director's contentions. Now, the officer in respect of whom a permit is sought is Mr Michael Ravbar who is currently secretary of the Queensland and Northern Territory branch of the CFMEU. Whilst we have not gone hunting through the Commission's files, since 1990 at least, and I make this assertion from the bar table here, there has been a whole lot of permit issued by the Commission.

PN20

We do not think that is necessarily in contest, but if the Commission requires us to go through and find the decisions in the Commission granting it we will do so, but we say that that's not necessarily, as we understand it, not in contention.

PN21

THE DEPUTY PRESIDENT: Although it is really only since 1996 that this sort of current regime of permits came into operation, wasn't it?

PN22

MR WHITE: Yes.

PN23

THE DEPUTY PRESIDENT: I mean, roughly.

PN24

MR WHITE: In the current regime. But I understand prior to that time there were permits also issued.

PN25

THE DEPUTY PRESIDENT: Sure, but pursuant to other provisions of the Act.

PN26

MR WHITE: Yes.

PN27

THE DEPUTY PRESIDENT: And/or awards.

PN28

MR WHITE: Yes. And we say nowhere else that from 1990, or there has been no finding that there has been any breach by Mr Ravbar of any permit held by him.

PN29

THE DEPUTY PRESIDENT: Just for my information, this is the evidence from the bar table, I suppose, as well, but how long has Mr Ravbar been an official of the BWIU and then CFMEU?

PN30

MR WHITE: Now, I was going through some of that this morning. Certainly I think 1990 is when he was first employed. Under the current definition of officer, probably since 1990 been an officer of either the CFMEU, or its predecessors, or component parts of it. And as I understand, he first held an elected position in 2004.

PN31

THE DEPUTY PRESIDENT: Prior to that he was a paid organiser of - - -

PN32

MR WHITE: He had various roles, either industrial officer or organiser, and I'm not sure if that is the extent of his roles. But certainly full-time since 1990.

PN33

THE DEPUTY PRESIDENT: And prior to that he was? I mean, we don't have a witness statement as such from Mr Ravbar. We have his declaration as part of the application. But I suppose one of the issues that is raised, of course, by the submissions is not just his personal conduct as an official, but his role as branch secretary. It is clearly true to say that he has been a long standing, a relatively long standing official of the union, to my knowledge. What you are saying is that in a paid role at least, that commenced around about 1990.

PN34

MR WHITE: Yes. We will come to those submissions about his role as a senior officer in the course of this outline. Can I say that by reason of the fact that the submissions being filed, your Honour, has indicated that you have read and considered them. I do not intend to go laboriously through them, but rather wish to highlight a number of matters as we go through. I do not intend to spend any time, if the Commission please, on the question whether he is fit and proper to hold a permit, absent or considered separately, and apart from any submissions or material led by the director. We say he has complied with the provisions of the Act and the rules and as such in the normal course of events the Commission, in dealing with all myriad of these applications, is satisfied.

PN35

THE DEPUTY PRESIDENT: Do you say in one sense that when the Commission deals with these right of entry permits and considers all the various applications, you know, and as you say, I don't know how many of these are dealt with in a year, but just about all of them or all of them until recent times were dealt with by the regulation compliance branch of the Commission, as it is now called, or prior to that the registry, dealt with in a sort of administrative capacity, if I can describe it like that. So, it has only been a relatively new phenomenon that these matters get referred to members of the Commission.

PN36

MR WHITE: And then only really, we would have thought.

PN37

THE DEPUTY PRESIDENT: Yes. So, is it really your submission in one sense that there is a prima facie compliance with section 512 and 513 when an application is lodged?

PN38

MR WHITE: Yes. What the Commission said, what the President said, you have got to follow these forms and this is the information we require. There is specific provision in rule 51(1) about training and that is dealt with in the declaration, and the other matters are matters which the Commission has determined are relevant to the satisfaction as to fitness and propriety and having complied with that whether it is expressed as a prima facie or not, we say the evidence contained in the declaration is sufficient to meet the level of satisfaction required by the Commission. Once again, it will always be the writer absent any disentitling or the material the Commission might find which would displace that satisfaction. And once again, we note that whilst the director complains about some absences from the declaration, there is no contest taken with the content of the declaration.

PN39

Now, the form F42 picks up those matters the Commission is required to consider under section 513. So, that really supports the proposition that we are putting to you. If the Commission pleases. So, in conjunction with the matters you are required to consider, then one can understand the content and the form F42 and the content of the declaration which is attached to that form and they deal with the matters. And so subject to appropriate completion and appropriate information being contained in the form and declaration, we should say the Commission is able to take into account those matters, or consider those matters, and then form the requisite satisfaction.

PN40

But as I say, the director's attack really does not focus on that. It focuses elsewhere in making his assertion that Mr Ravbar is not a fit and proper person. So, that is really going to be the focus of the submissions. So, I now turn to the matters relied on by the director to make good his proposition. The director relies on a number of submissions filed. In part, they coalesce to some extent in the most recent submissions which have been filed by the director, albeit we do not they rely on all of the submissions filed. The first thing we say is this. In order to discharge the function and to arrive at the requisite satisfaction or position where there is no requisite satisfaction, the question of what the fit and proper person test needs to be identified and understood.

PN41

We say that the identification and characterisation of the test, we say, is a basal matter if you like. In the general submissions filed by the director in, I will just turn up the date of those.

PN42

THE DEPUTY PRESIDENT: 18 July.

PN43

MR WHITE: 18 July commencing from paragraph 31 and thereafter. The director has contended that the history of contravening does not identify in the heading precisely what it is to have contravened, is relevant. That is, relevant to the question of fitness and propriety. We say that is an error and it mischaracterises and directs attention away from what we consider is the appropriate and proper and real test to be applied. The real test, we say - and we deal with this in paragraphs 4 and following of our submissions on 23 January 2015 - the Commission must be satisfied that the person for whom a permit is sought is a fit and proper person to hold the entry permit.

PN44

We say what flows from that are two things. First of all, consideration is drawn immediately to the purpose of the permit, but importantly we say that the fit and proper person test is directed to the personal characteristics of the person for whom a permit is sought. We set out in our written outline why we say that is the correct position and we set out in our written outline an extract from the director of Fair Work Building Industry Inspectorate v CFMEU [2014] 5947. That wasn't a case which came to consider this question afresh or anew for the first time and we have given reference in paragraph 4 to the earlier case, Maritime Union of Australia [2014] FWC FB 1973.

PN45

But it is, we say, now clear and on proper authority of the Full Bench of this Commission, we say twice, that the test is not directed to the conduct of an organisation. That is a decision of FWC FB 5947 is a decision of 4 September 2014. If the Commission pleases.

PN46

THE DEPUTY PRESIDENT: Yes. Look, just in terms of these cases as we go through them, I have got a little bit of a collection of these right of entry cases here. But I am not sure that I have got all of them and I noticed that there has been some authorities handed up on behalf of the FWBC.

PN47

MR WHITE: To make your suitcase heavier, we have the authorities that we have referred to.

PN48

THE DEPUTY PRESIDENT: All right, thank you. I bet there is a bit of repetition here.

PN49

MR WHITE: Just a bit.

PN50

THE DEPUTY PRESIDENT: So, this is number 6 in the list of authorities.

PN51

MR WHITE: That's an application in respect of Mr Kong and the extract we set out in paragraph 5 of our outline commences at paragraph 22 in the decision. If the Commission please, we read paragraphs 22 probably through to paragraph 25, but in particular paragraph 22 and paragraph 24. We rely on those paragraphs in particular to establish the proposition that in applying the fit and proper person test it is not conduct of another, it is not conduct of an organisation, but it is the personal characteristics of the person or officer in respect of whom the permit is sought. That is crystallised in paragraph 24, I suppose, in the last part of that paragraph, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and exercise of the rights and privileges associated with the hiding of an entry permit.

PN52

Now, this case amounts to an express rejection of that part of the director's submissions that the conduct of the organisation is relevant. It is not relevant, we say, because the proper test is to concentrate on the personal characteristics. Now, there will be some further discussion later in these submissions about a part of that decision on which the director relies, in particular paragraph 27. In paragraph 27, and we say this is, if it was a court, would be obiter. It was unnecessary for the determination of the matter before the Full Bench in that matter. There is observations that past contraventions might possibly in some circumstances may be relevant. But once again, the Full Bench determines that they might be relevant only if the facts of alleged past contraventions or past conduct is directly relevant or referable to the conduct of the person in respect of whom a permit is sought.

PN53

THE DEPUTY PRESIDENT: Mr Kong was a branch organiser, was he?

PN54

MR WHITE: Yes. So, the director relies on paragraph 27. We will deal with this in some more detail later to support his contention that Mr Ravbar, by reason of holding office, in particular the office of secretary over a particular period of time, he should be found thereafter he is not fit and proper. But at this part of the submissions, and we don't accept at all of what the director says about that. In any event it is, we think, uncontentious but that paragraph 27 to the extent it purports to make observations about potential tests, it is still directed to the personal characteristics of the person. Now, the director in his written submissions which I have referred to, the general submissions, paragraph 31 and following, is incorrect to contend that the conduct of the CEPU is relevant to the disposition of this application.

PN55

Now, it may well be that the director puts that submission as a matter of formality, but in circumstances we understand he has appealed or sought judicial review of a decision in the Kong matter. But as it stands now, the authority of the Full Bench, we say, is clear and that would disentitle. We say the director can rely on that contention.

PN56

THE DEPUTY PRESIDENT: Where is that Federal Court proceedings up to, can you tell me?

PN57

MR WHITE: Yes. I think it is listed for hearing on 15 February. No, sorry, that's another matter.

PN58

THE DEPUTY PRESIDENT: There are so many matters you are confused.

PN59

MR WHITE: It is listed for direction at some time. It hasn't had its first directions hearing yet.

PN60

THE DEPUTY PRESIDENT: I see.

PN61

MR HERBERT: There is a status report.

PN62

MR WHITE: I know the status report has to be in, but I am not sure what the status report is. But it is at very early stages.

PN63

THE DEPUTY PRESIDENT: The status report is it has no status.

PN64

MR WHITE: So, all it is, is an application on the authority of the Full Bench.

PN65

THE DEPUTY PRESIDENT: Right.

PN66

MR WHITE: The 15 February date we will come to shortly in relation to another matter. So, in relation to that first matter relied on by the director, we say it is an erroneous contention on the state of authority. The second general matter relied on by the director is what is characterised as non-disclosure. As we apprehend on the submissions, the director contends that by reason of non-disclosure, the Commission should be satisfied that Mr Ravbar is not a fit and proper person. Matters of general comment about that commencing paragraph 8 and following of our submissions of January this year, your Honour. Once again, adequacy of disclosure is not a separate statutory requirement. It must be for it to be a relevant matter for you, to be relevant under 513(1)(g), and it must also continually relate back to the personal characteristics.

PN67

Now, as we understand the director's submissions, there are four matters which he relies on to establish relevant non-disclosure. The first is that the declarations did not reveal that in the matter of Hamberger v CFMEU [2012] FCA 585 that the Australian Building Construction Employees and Builders' Labourers Federation was the subject of a penalty order. Now, that decision of Bechtel I think is in the pile of authorities which is number two, I'm told. Number eight, I'm told.

PN68

MR HERBERT: It's number one in ours.

PN69

MR WHITE: Number eight.

PN70

THE DEPUTY PRESIDENT: The number two in your authorities is the decision of Commissioner Burns. This relates – that's the one that - - -

PN71

MR WHITE: I was misled by my instructor. We talk about Hamberger. We talk about Hamberger and that is number eight. I apologise to my instructor. So, the first matter relied on in relation to non-disclosure is the fact that the declarations didn't reveal that another organisation or another union also had a penalty imposed. Can we just refer to the parties in that case, your Honour. The first, the second respondent you will see on page 2 is The Australian Building Construction Employees and Builders' Labourers Federation Queensland Branch Union of Employees. Now, this is a union separate from and different from the CFMEU.

PN72

THE DEPUTY PRESIDENT: Well, technically. Technically it is.

PN73

MR WHITE: There has been a merger now in the last year.

PN74

THE DEPUTY PRESIDENT: Yes.

PN75

MR WHITE: But this is a state registered union.

PN76

THE DEPUTY PRESIDENT: Yes, I am aware of that.

PN77

MR WHITE: And there is no allegation that Mr Ravbar was a member of it, there is no allegation that – sorry. There is no indication in the director's submissions why it is that a declaration in respect of a permit holder or an officer of a particular organisation is obliged to declare cases or circumstances where penalties have been imposed on a different, legally distinct union. And we say that the proposition asserted by the director that that somehow amounts to
non-disclosure is fanciful.

PN78

THE DEPUTY PRESIDENT: I suppose the point is that the argument would be that for all intents and purposes, the BLF was, in an operational sense, acted as part of the CFMEU group.

PN79

MR WHITE: Well, see, (a) that hasn't been submitted, (b) we disagree with it anyway, and in terms of the difficulties and the intricacies of the merger last year, one can certainly suggest it probably wasn't the case.

PN80

THE DEPUTY PRESIDENT: Just for the record, because in the early 1990s when the federal amalgamations were taking place, the CFMEU for whatever reason didn't affect the mergers of the parallel state registered unions like most other organisations did in Queensland. It does not necessarily mean that they did not sort of act as part of one entity. I mean, I might say I am aware – I mean, they weren't the only union who did this. This occurred also with the RTBU where the state registered ULE stood aside, and still stands aside as far as I know, and was the subject of litigation. And it may be the case not much turns on this really, but your basic submission is that Mr Ravbar actually came from the BWLAU, he was then an official of the CFMEU, I think the state registered entity was the CFMEU, which was the old BWIU.

PN81

MR WHITE: I think so, yes.

PN82

THE DEPUTY PRESIDENT: Became the state registered CFMEU.

PN83

MR WHITE: And the BLF union, the Queensland Branch Union of Employees, I am instructed had different officers. There wasn't a conformity between office holders.

PN84

THE DEPUTY PRESIDENT: No.

PN85

MR WHITE: Different elections. Different accounts.

PN86

THE DEPUTY PRESIDENT: Yes, I accept that. I accept that. Mr Hanna, though, again now being an officer of the CFMEU held sort of two hats, I think, was my recollection.

PN87

MR WHITE: It may well have been that that's the case. But at a broad proposition, contention that penalties were imposed on a separate organisation we say cannot involve relevant non-disclosure. Whilst your Honour has a much better knowledge of the history of these organisations as I - - -

PN88

THE DEPUTY PRESIDENT: It's a bit hazier now.

PN89

MR WHITE: Well, I can only say you are lucky. But the fact of the matter is both as a matter of law and a matter of fact, even though there may have been some cross-fertilisation of office holders, they are separate and distinct unions and organisations or bodies and payees. We say that not declaring that another union had a penalty imposed on it cannot, we say, relevantly amount to any non-disclosure, particularly in circumstances where there is no suggestion that in the conduct of Mr Ravbar led to the imposition of penalty on the BLF. Now, the second way in which the director asserts relevant non-disclosure is that Mr Ravbar in his declaration said that he had been convicted of an offence when really he hadn't been convicted of an offence, but rather had had a penalty imposed on him.

PN90

What the director seems to be relying on is a mischaracterisation by Mr Ravbar of a disclosed fact. The declaration declared that Hamberger v CFMEU – can I just say, if the Commission please, both in paragraph 14(a) of our written outline and in paragraph 18 of our written outline generally this year, the citation we give for Hamberger v CFMEU is incorrect. It should be 2002.

PN91

THE DEPUTY PRESIDENT: It is unclear that these proceedings that now Hamberger DP was then the employment advocate, so it was essentially, under the previous legislation, it was essentially what you might describe now as a general protections application. It was a breach of a sort of freedom of association. The allegation was it was a breach of freedom of association provisions essentially. That was the matter, yes.

PN92

MR WHITE: We will go to the relevance of that case in a little time, but just in relation to the citation that I ask the Commission to correct, I outlined it 2002 rather than 2012.

PN93

THE DEPUTY PRESIDENT: Sure, yes.

PN94

MR WHITE: So, the submission that the disclosure was inadequate in that
Mr Ravbar didn't review that he had been convicted of an offence when in fact he had not been really, we say, is pedantic and seems to be a complaint more that
Mr Ravbar mischaracterised what had occurred, albeit in circumstances where the declarations referred to in detail and give the decision in Hamberger v CFMEU. The third matter that the director – and so we say (a) it's a pedantic view taken by the director in not really, we say, relevant non-disclosure, (b) was say in any event the Full Bench mischaracterised the detail that was disclosed in any event, and (c) we say the mischaracterisation of what occurred in circumstances where there had been disclosure of the matter cannot, we say, relevantly go to the question of fitness and propriety.

PN95

Now, the third matter relied on by the director is that the declaration to advise that the penalty imposed on the CFMEU – this is once again in the Hamberger matter – had been reduced to $3000 on appeal. True it is that wasn't revealed. What we say about that is in paragraph 19 of our written outline. The first observation we make is that Mr Ravbar is, if there is an obligation as there probably is, disclosed the penalty imposed on him and that was not reduced on appeal. The fourth thing the director relies on is that there is no reference of the matter of Lend Lease Engineering Pty Ltd v CFMEU, BRG 771 2012.

PN96

Now, that matter is a matter which has been heard in what is now the Federal Circuit Court of Australia, but not a matter which has been determined. Sorry, I thought you were reading?

PN97

THE DEPUTY PRESIDENT: No. In the context of the overall decision in Hamberger, there were a number of penalties. Mr Ravbar's penalty was the lease, $750, as against the other respondents in the case. That's right?

PN98

MR WHITE: I think so. Also, we'll come to this later, this is about conduct in 1999. And our submissions deal with the antiquity of this matter later on in the written submissions and your Honour would have seen that. But just as an aside while we're on this matter, relying on a matter of 1999 really, we say, does not reflect well on the director. There is no submissions made by him as to why it is that a matter of such antiquity has current day relevance. Now, the fourth matter relied upon by the director is a failure to disclose the proceeding in Lend Lease Engineering. Now, first of all there are some submissions filed last year and we rely on those in respect of this matter.

PN99

But in any event, we say this submission directs attention to what must be disclosed in order for there to be relevant non-disclosure. And in particular, relevant non-disclosure must be a relevant matter within the meaning of section 513(1)(g). What is relevant, whilst to some extent is in a matter within the discretion of the Commission, must nonetheless relate once again to the personal fitness and characteristics of the officer. The question then arises how an allegation made by an employer that is contested and denied can be relevant to a person's fitness. Is the director making the submission that an employer who can come along in public in court at the corner of the street in the Commission and say I allege X, no finding about these matters, how is the fact of an allegation per say relevant to a person's fitness? And if it's not, why should it be declared?

PN100

We have also in paragraph 20 at the end of that paragraph in our submissions – and we make this submission perhaps more generally limited to this particular matter – is that the Lend Lease Engineering matter involves no allegation on breach of right of entry provisions by Mr Ravbar. We put as our general proposition, and we don't intend to expand on it either orally or having done it in writing, that the proper position is that in considering past breaches under section 513 of the Act, the Commission is limited to considering breaches of right of entry provisions. Now, we have said in paragraph 20 that we note the Full Bench authority in the MUA matter which is directly contrary to that proposition.

PN101

We understand the Commission as currently constituted, faced with a Full Bench authority, is if not in the formal sense, in many other sense, bound by that decision, but we put it as a formal submission, your Honour, and we do put that as a formal position in circumstances where that Full Bench authority in the Maritime Union is the subject of an application for a judicial review and I am told is listed for hearing on 15 February this year. So, we say that the contentions about non-disclosure, we say, are misconceived and should not be given any weight. The next basis upon which the director asserts that Mr Ravbar is not fit and proper is the question of whether or not appropriate training has been undertaken by him.

PN102

This in some senses is an odd submission in circumstances where the director at paragraph 13 of his submissions of 19 December, and note appropriately and correctly, that Mr Ravbar's name is not to be found on any decisions or penalties handed down by the courts during his reign. We say put another way, we say that amounts to a concession that other than the matter of Hamberger v CFMEU in respect of conduct occurring in January and February 1999, Mr Ravbar hasn't been found by a court to be in breach of any obligations of part 3-4.

PN103

THE DEPUTY PRESIDENT: That leaves aside the decision of Commissioner Booth.

PN104

MR WHITE: Bechtel matter, yes. Well, we will come to that..

PN105

THE DEPUTY PRESIDENT: Yes, sure.

PN106

MR WHITE: It does leave that aside and we deal with that a bit later in the written submissions, but I will deal with that a little bit orally as well. But in terms of the findings by a court, there has been no finding we say since he sought a permit, since he has been employed about breach of right of entry provisions.

PN107

THE DEPUTY PRESIDENT: By a court?

PN108

MR WHITE: By a court. And we say specifically by a court and we will come to the Bechtel matter shortly.

PN109

THE DEPUTY PRESIDENT: You didn't tell me about this. I mean, I am just not entirely clear what the Lend Lease proceedings are. Are you going to come to that in due course?

PN110

MR WHITE: No. I deal with it in these proceedings and the way I deal with it is it is asserted that there is relevant non-disclosure by non-reference to the Lend Lease procedures and I have referred to the submissions which were filed last year in respect of that. And in addition to that, we say that in any event, apart from inadvertence which was referred to in the earlier submissions, it is not a matter relevant and it's not relevant for a number of reasons. First, at this stage they are only allegations. No findings and do not involve any allegation of right of entry. Apart from those, the submissions which we think in our submission should be determinative, but just by way of information for your Honour, by way of background, the Lend Lease proceedings involved proceedings, I think Abigroup was the name under which the proceedings were listed.

PN111

THE DEPUTY PRESIDENT: Yes. I am generally aware of the Lend Lease restructuring because I have dealt with a number of 318 disputes.

PN112

MR WHITE: And Abigroup was the head contractor building the Queensland Children's Hospital.

PN113

THE DEPUTY PRESIDENT: Yes. This is the dispute that relates to the Children's' Hospital in Brisbane.

PN114

MR WHITE: Yes. So, to some extent there is a little bit of background in relation to the proceeding in paragraphs 11 and following of the submissions of 4 August 2014. They are the submissions that I referred to earlier orally.

PN115

THE DEPUTY PRESIDENT: Yes.

PN116

MR WHITE: So, I am not quite sure whether that answers your Honour's query about information about the BRG matter.

PN117

THE DEPUTY PRESIDENT: In paragraph 11, I notice that you say in – sorry. So, this is your submission of 4 August. In paragraph 11 you say FWBC contends that CFMEU, Mr Ravbar, failed to properly disclose Lend Lease, et cetera.

PN118

We concede that the matter was inadvertently omitted from the application. We apologise for any inconvenience.

PN119

So, just so I am clear. That matter which is referred to there, BRG/771?

PN120

MR WHITE: BRG771/2012. That is the court matter. There is not a decision reference. So, Brisbane registry, I think BRG. Sorry, Brisbane General. Brisbane General and then the number of the proceedings initially commenced, I think, in the court that was then in the Federal Magistrates Court and during the currency of this litigation changed to the Federal Circuit Court of Australia and in that matter allegations were made about a variety of things arising out of the Children's Hospital, but particularly there is no allegation that Mr Ravbar breached his right of entry.

PN121

THE DEPUTY PRESIDENT: No, just in general terms so I am clear, what is the allegation? What breaches – they are breaches of the Fair Work Act, are they?

PN122

MR WHITE: There is a variety of causes of action in that case. They include, from memory, breaches of section 418, they include the taking of unprotected industrial action, they include I think a number of common law torts.

PN123

THE DEPUTY PRESIDENT: Arising from a picket or something like, was it?

PN124

MR WHITE: Yes, there's an allegation there was a picket there.

PN125

THE DEPUTY PRESIDENT: Sorry, a community assembly.

PN126

MR WHITE: But in any event, there was no allegation in that matter that
Mr Ravbar contravened right of entry and the allegations against Mr Ravbar. Now, can I go back. Can I go back and correct myself. The proceedings by Lend Lease, formally Abigroup, in the Federal Magistrates Court in relation to the stoppage or the cessation or the absence of work at the Children's Hospital was BRG714/2012.

PN127

THE DEPUTY PRESIDENT: Not 771?

PN128

MR WHITE: BRG771/2012 is a proceeding in relation to allegations of stoppages or other unlawful conduct at other sites, some in Queensland and some interstate. 714 and 771 were heard together in the Federal Circuit Court. There is no decision in either of them.

PN129

THE DEPUTY PRESIDENT: But proceedings concluded almost a year ago, is that right?

PN130

MR WHITE: Yes. Final submissions were, I think from memory, possibly - - -

PN131

THE DEPUTY PRESIDENT: You said February 2014.

PN132

MR WHITE: Yes. Evidence in the trial finished in February 2014 and then final submissions, we think, were made in April 2014. There was no decision. There was no allegation by Mr Ravbar in 771 of any right of entry laws and the allegations against him in 771 did not include conduct by him in the Queensland Children's Hospital. But fundamentally, and I apologise to the Commission for that because I was in that proceeding.

PN133

THE DEPUTY PRESIDENT: I can understand there is a range of proceedings relating to Lend Lease and the CFMEU. I handed down a decision in one of them on Thursday which was instantly appealed. I am well aware of the sort of contention, but all of this is really a question of fact and it's really just a question of what the allegations are. I understand there is no decision, so it should be able to be sort of non-contentious in one sense in terms of the report.

PN134

MR WHITE: We say that allegations are merely that.

PN135

THE DEPUTY PRESIDENT: Yes.

PN136

MR WHITE: And the director that seeks to rely on this in the circumstances set out in 21 and 22. I won't read those again. In terms of the training, and this is still under the heading training, and I address that part of the director's submissions, there is the contention made in paragraph 29 of the specific submissions that the last training received by him was in March 2012 and somehow that is said to be relevant because of what the director terms the CFMEU's propensity to transgress. Your Honour, we have set out earlier in these written submissions and to a certain extent oral submissions so far why it is incorrect to look at the conduct of the organisation rather than the individual. For those reasons, that part of the director's submissions once again are flawed.

PN137

So, really a contention that he had not received appropriate training seems to be based on the fact that allegations have been made against him. That's what we mean when we say this is speculation and an incorrect premise and the incorrect premise involves an incorrect reliance on the proposition which has been set aside by the Full Bench in Kong. We say once again, these are submissions that really shouldn't trouble the Commission. Now, if the Commission please, I wonder if I could have a five minute adjournment?

PN138

THE DEPUTY PRESIDENT: Yes. Can I just say also to the parties, I have got a matter by telephone at lunch time so I was wanting to adjourn for lunch at about a quarter to one if that's alright and maybe come back at two, maybe 2.15. I mean, we have set this matter down for two days.

PN139

MR WHITE: We think it should be easy done in a day.

PN140

THE DEPUTY PRESIDENT: Yes, I would have thought so. But anyway, I wanted to make sure we had ample time. How long do you want?

PN141

MR WHITE: Just five?

PN142

THE DEPUTY PRESIDENT: Okay. Why don't we come back at 25 past.

<SHORT ADJOURNMENT [11.30AM]
<RESUMED [11.41AM]

PN143

THE DEPUTY PRESIDENT: Mr White.

PN144

MR WHITE: I think I finished dealing with the question of appropriate training.

PN145

THE DEPUTY PRESIDENT: Yes.

PN146

MR WHITE: The next matter that the director relies on under the heading Matters Involving Orders for Penalties Under Industrial Law, that is a section 513(1)(d) consideration. The director relies on the matter of Hamberger v CFMEU, incorrectly called by me Bechtel which led my instructor into error. He is here to hear my apology. And I have made some oral submissions earlier today and I don't expand on those now. Paragraph 26 is where we deal with it in our written outline. If the Commission please. This is a matter of significant antiquity and nowhere really does the director grapple with the effect of the effluxion of time. How matters 15 to 16 years old somehow can't be of relevance.

PN147

Now, the next matter is the factual context of the nature of other relevant matters and he deals with those in paragraphs 53 and following of the specific submissions filed last year. In this matter, once again he refers to proceedings BRG771/2012. We made some oral submissions in respect of that and we note the concession made by the director in paragraph 55 that the proceedings are still before the courts and allegations have yet to be proven. And we say the fact that allegations are made really does not entitle the Commission to look into factual contest because at this moment there is no factual context.

PN148

The other proceedings that the director relies on are the Bechtel proceedings and we say this about the Bechtel proceeding. The first thing to note in relation to the Bechtel proceedings is that that decision is subject to appeal. The second thing to observe about the Bechtel proceedings is this, that not only is the decision the subject of an appeal, but there has been a stay granted. I have got a copy of the order, with Catanzariti VP staying the decision, staying the orders.

PN149

THE DEPUTY PRESIDENT: What was the Bench in this matter?

PN150

MR WHITE: Commissioner Blair at first instance, we understand, and Catanzariti VP issued the stay. The Bench which has heard the appeal is something that I'll have to come back to the Commission on. I don't know.

PN151

THE DEPUTY PRESIDENT: You might just let me know when the hearing was as well.

PN152

MR WHITE: 16 December, my learned friend tells me. He thinks that that is correct. I have got no independent knowledge of when that hearing was.

PN153

THE DEPUTY PRESIDENT: The point is that as of today, Mr Ravbar's right of entry has not been suspended.

PN154

MR WHITE: That's right. But more generally, or perhaps more specifically, the director seeks to rely on the factual basis and context of that decision. Now, can I just turn that decision up if the Commission pleases.

PN155

THE DEPUTY PRESIDENT: I think it is in tab 2 of your materials.

PN156

MR WHITE: The next thing to note is this in relation to the Bechtel proceedings. They were proceedings to resolve a dispute arising under part 3-4 of the Act. As such, it was - before I go onto that, 12 December 2014 was when the Bechtel appeal was heard. The Bench was Catanzariti VP, Gooley DP, and Commissioner Spencer.

PN157

THE DEPUTY PRESIDENT: Thank you.

PN158

MR WHITE: Gooley DP.

PN159

THE DEPUTY PRESIDENT: Did you promote her, did you?

PN160

MR WHITE: I promoted her slightly.

PN161

THE DEPUTY PRESIDENT: I think she's up there today.

PN162

MR HERBERT: She'll be pleased to hear it.

PN163

THE DEPUTY PRESIDENT: She's been promoted once, so you can't really. Don't say I said that, though.

PN164

MR WHITE: So, the next thing to observe about the Bechtel decision is that it was not a decision which findings of breach of part 3-4 were made and specifically findings of breach for the purposes of establishing breach were specifically not made. I will give you references to those, albeit it must be said that conduct on which the applicants relied was nonetheless considered by the Commission.

PN165

THE DEPUTY PRESIDENT: Do you want to mark the stay order?

PN166

MR WHITE: Whatever is convenient, if the Commission please.

PN167

THE DEPUTY PRESIDENT: We might mark it given that it is not a decision.

EXHIBIT #W1 STAY ORDER

PN168

THE DEPUTY PRESIDENT: I suppose I should have asked you whether you wanted to mark the written submissions.

PN169

MR WHITE: It would be entirely - - -

PN170

THE DEPUTY PRESIDENT: I mean, I think they are clear as to what they are.

PN171

MR WHITE: I think they have been identified by your Honour. Now, to the extent that the director may seek to rely on findings whether based on evidence of Mr Ravbar or anyone else in the Bechtel proceedings, it is important to consider, we say, that as I recall, or to the extent that I have been informed, those proceedings were held over a significant number of days. The decision, I think, records that the hearing was 3, 4, 5, 6. You will see on page 25 of the print there, if the Deputy President please, the details of how long that case took to run and proceed in circumstances where there is obviously a significant factual background to that decision and in circumstances where findings of breach were specifically disavowed, we say the Commission should be extraordinarily cautious to rely on any cherry-picked pieces of evidence which the director may seek to rely on.

PN172

THE DEPUTY PRESIDENT: The events that were the subject of the case took place, or some of them to 2012 and others in April 2013.

PN173

MR WHITE: Yes. Not as old as the Hamberger matters, but once again going back some way. But in any event, the caution which we urge on the Commission is that it was a matter in which there was significant background and the Commission, we think, should be reluctant to, in the absence of having a full understanding of that background, rely on cherry-picked bits of evidence. Could I then come to the heading, the senior leadership role. We deal with this in the written submissions in paragraph 31 and following.

PN174

The way in which we apprehend the director has put his case is that Mr Ravbar, having a senior leadership role, should be held as an exemplar and then invites the Commission to question the standard of leadership of the branch and lastly to consider the role of Mr Ravbar. Now, we make a number of observations about that. First by relying on an assertion that Mr Ravbar should be held as an exemplar, in effect we say the director is inviting the Commission to speculate as to particular circumstances of his role and to impose a higher standard by reason of office held. We say that is not right, but also importantly it misdirects attention away from the essential question the Commission is required to address and that is the personal characteristics, the personal circumstances, of Mr Ravbar.

PN175

The next thing we say is that to the extent that the director requires or suggests the Commission should consider the standard of leadership in the Queensland/Northern Territory divisional branch, once again we say the director falls into error because it directs attention away from the personal characteristics of Mr Ravbar and is contrary to the decision in the Kong decision where the Commission considered whether or not conduct of the organisation could be relevant. Now, the role of Mr Ravbar specifically is dealt with at greater length in the director's submissions of 19 December 2014 commencing at paragraph 16 where the director sets out what he asserts to be the CFMEU's history under
Mr Ravbar's leadership.

PN176

We say thereafter the director verges or strays for any evidentiary basis and makes a number of assertions, sometimes in colourful language, which we say is not supportable. Now, in paragraphs 18 and 19 it talks about the recidivous conduct of the Queensland/Northern Territory branch. Well, we talked about the relevance of conduct of a union already. I don't repeat. The submissions made draw no personal protection by reason of the fact that he sends his organisers out to contravene these laws or tolerates them doing so. Well, we will come to that in more detail. But the first observation we make is that the director in paragraph 19 points to no evidence to support that.

PN177

I was going to apply an adjective to that statement, but no evidence. Now, I won't read the director's submissions. No doubt my learned friend can do that to the extent he considers necessary. But we say there are a number of unsupportable contentions which are made. First unsupportable contention – and I say unsupportable contention having regard to the evidence in this case – is that:

PN178

It can comfortably be assumed that in any case in which the candidate is a very senior official, holds a position of power and authority over the conduct of others, the level of compliance with the industrial law by those other persons is very relevant to the fitness of the candidate.

PN179

Now, it may well be the case as a matter of very broad and general proposition, that such an observation might properly be made. It is not the case here. And secondly, we say that it incorrectly characterises the obiter observations of the Full Bench in Kong which is set out in paragraph 27 of that decision. The observations we made about paragraph 27 of that decision - - -

PN180

THE DEPUTY PRESIDENT: Sorry, paragraph 26 wasn't it, 27?

PN181

MR WHITE: Yes. So, the director in paragraph 27 makes a very general observation or very general submission. The observations of the Full Bench in paragraph 27, we say, are much more confined and are not as broad as that expressed by the director in his submissions. First of all, the most obvious thing to say is that any general observation by the Full Bench in paragraph 27 is predicated on facts of a particular contravention or contraventions. In looking at particular facts and facts referable to any particular contraventions. The second broad and general submission made by the director is that the conduct of those who are controlled by persons provides a clear window into the attitudes and standards of the controller.

PN182

Once again, this is put at such a level of generality as to be, we say, meaningless. It goes beyond that which the Full Bench relies in paragraph 27 of Kong. And in any event, once again it directs attention away from the real question the Commission is to decide, that is the characteristics of the person for whom the permit is sought. It does not direct attention to and the Commission should not be led down this path of considering the conduct of others. The next general observation made by the director in paragraph 13 is even more breathtaking as generality and that is that Mr Ravbar is responsible for all of the breaches of the CFMEU since the time he has been secretary. Now, that breathtaking and sweeping statement is made absent any evidence that Mr Ravbar was responsible for all of the matters.

PN183

The director further goes on and makes the contention that these matters could not have occurred without his acting direction and/or support. Once again, unsupported by any evidence. In paragraph 14, the director contends that the conduct of the CFMEU and officials under which Mr Ravbar has control is to be imputed to Mr Ravbar. All of these broad sweeping allegations are said to be supportable by the very limited and constrained and conditioned obiter observations of the Full Bench in Kong. We say that misunderstands and mischaracterises what was said in Kong and, in any event, are made absent evidence.

PN184

THE DEPUTY PRESIDENT: Aren't they essentially supported by the rules of the organisation?

PN185

MR WHITE: We will come to the rules shortly, if your Honour please. But at this stage, in relation to these broad sweeping allegations, and another one is set out in paragraph 19 of the director's submissions, that Mr Ravbar sends is organisers out to contravene the laws and tolerates them doing so. Now, no evidence about this. But then we come to the rules and it is apparently rules that the director relies on to make good these sweeping allegations. I don't know whether you have a copy of the rules?

PN186

MR HERBERT: It is in our folder.

PN187

THE DEPUTY PRESIDENT: I don't, actually.

PN188

MR WHITE: I think it's in the folder handed by - - -

PN189

MR HERBERT: Item 13, page 13 of the director's - - -

PN190

THE DEPUTY PRESIDENT: Thanks, Mr Herbert.

PN191

MR WHITE: So, it is the rules, unless we have misapprehended and missed some evidence, which we don't believe we have done, on which the director relies. First rule he relies on is rule 23 which provides that the divisional secretary is the principal officer of the division. I was unable to find a definition of principal officer in the rules. And I make the observation that the specific powers given to officers under the rules are the powers relevant to making good the proposition. The powers of the branch secretary or the divisional - - -

PN192

THE DEPUTY PRESIDENT: These are the rules of the divisional branch, or the construction and general division, as opposed to mining and energy?

PN193

MR WHITE: Yes.

PN194

THE DEPUTY PRESIDENT: They are the relevant rules.

PN195

MR WHITE: But Mr Ravbar is not the divisional secretary. He is the divisional branch secretary.

PN196

THE DEPUTY PRESIDENT: Yes.

PN197

MR WHITE: So, thereafter the director refers to rule 40. Rule 40 provides that the division branch counsels the supreme governing body of the branch and it has enumerated powers. The secretary's powers are set out in rule 46, it provides that the divisional branch secretaries under the control of the divisional branch counsel and the divisional committee of management. It has specific powers to conduct correspondence in connection with all industrial matters and to conduct the correspondence and general administration of the divisional branch. He is responsible for carrying out decisions of each of those two bodies rule (b), responsible for the enforcement of all awards, responsible for the preparation and reporting to the register such in terms are required by law, responsible for the preparation of audited financial statements, responsible for the preparation of agenda of meetings that are set out in sub-rule 46(f), for the production of divisional branch publications, the itinerary of organiser's duties, he is an ex officio member of committee and shall be an elected delegate to the divisional conference by virtue of his office.

PN198

So, they are the powers of the divisional branch secretary. Now, can I just ask the Commission to look at paragraph 40 of our written outline of January 2015. At the bottom of page 7, paragraph 40, could you delete the words:

PN199

Other than the power given to the secretary by rule 23.

PN200

That is the divisional secretary, not the divisional branch secretary.

PN201

THE DEPUTY PRESIDENT: Sorry?

PN202

MR WHITE: Paragraph 40.

PN203

THE DEPUTY PRESIDENT: Yes. This is the 23 January submissions?

PN204

MR WHITE: Yes. In paragraph 40 at the bottom of page 7, I refer to the specific powers of the divisional branch secretary and then I say:

PN205

Other than the power given to the secretary by rule 23.

PN206

That is an error. That is power given to the divisional secretary, not divisional branch secretary. So, I would ask the Commission to delete the words "other than the power given to the secretary by rule 23". I am corrected. I should make these up as I go along, perhaps. They should be left in. When you look at sub-rule 23(2) it is in cases of breach of legislation, laws, or agreements. The divisional branch secretary has got power to do certain things. Let's take legal proceedings as are necessary to enforce the legislation, et cetera. So, there is a specific power given to the divisional branch secretaries in sub-rule 23(2), but it is incorrect to the extent that it makes an apparent concession in their written outline that the divisional branch secretary is the divisional officer.

PN207

THE DEPUTY PRESIDENT: Sorry, it is unclear. There is no companion branch rule to 23. Divisional manager, I should say.

PN208

MR WHITE: We couldn't see an equivalent one about principle officer, so we do not believe there is one about principle officer.

PN209

THE DEPUTY PRESIDENT: Usually you would have a rule that says the secretary is the chief executive officer or some such terminology like that.

PN210

MR WHITE: Well, if the secretary is.

PN211

THE DEPUTY PRESIDENT: Yes. I shouldn’t make comment about union rules, but I don't know that these rules were really the subject of forensic examination really. Not so much examination, but forensic re-drafting in the same way as some other rules. But anyway.

PN212

MR WHITE: As I speak, there would be many unions where amalgamation has covered them. They are a moving feast to a certain extent. But under rule 23(2), the divisional branch secretary has powers in respect of breaches of legislation and the capacity to bring such legal proceedings seeking penalties for those breaches and then by rule 46 the divisional branch secretary is given specific and enumerated powers. All of the time subject to the control of the divisional branch council and the divisional branch committee of management. I will come back to that shortly, but before I go there can I ask the Commission not to delete those parts of paragraph 40 which I earlier asked the Commission to delete.

PN213

Paragraph 48 of the rules deals with the duties of branch organisers and provides that the organisers shall be under the control and supervision of the divisional branch committee and shall carry out their duties within the provision of the rules. So, it will be the shops' jobs carry out organisational work in any part of the state or territory as directed by the provisional branch committee. But limitations on the power of the secretary is really limited to the itinerary of the organisers which in turn is limited to any decision of the divisional branch management committee about that part of the state in which the organisers are to work.

PN214

THE DEPUTY PRESIDENT: I think in practice, though, they are no longer elected organisers.

PN215

MR WHITE: I think they are.

PN216

THE DEPUTY PRESIDENT: There are still some?

PN217

MR WHITE: Yes, that's right. I would have to check, but I think that's so.

PN218

THE DEPUTY PRESIDENT: I mean, certainly the rules provide for that.

PN219

MR WHITE: Yes, they do, yes. And that number of elected organisers to be determined by the relevant committee.

PN220

THE DEPUTY PRESIDENT: The secretary always wants to get rid of them, of course.

PN221

MR WHITE: Well, perhaps that might be so because they are able to control them and in circumstances where there are elected organisers, it makes it even more remote that the broad sweeping assertions of the director could be made good in this particular case.

PN222

THE DEPUTY PRESIDENT: It is interesting also that there is no prohibition on organisers being members of the committee of management which there are in some other union rules. So, in other words, you could have an organiser who is also a member of the committee of management.

PN223

MR WHITE: Yes. But it is the reference to rules 23 and 46 that the director relies on to make good the evidential basis for the assertions he makes about imputing responsibility and the like. And we say that those rules do not support the breadth of power which the director asserts is wielded by Mr Ravbar in this case. And importantly, we say, that not only do the rules themselves not support that breadth of sweeping power, but there is no warrant, we say, to imply into the rules any law which gives the secretary such broad powers outside the specific provisions of the rules. Now, to make good that proposition, and I don't take the Commission to it in detail, but in terms of a discussion about implied rules of organisations, we make a reference to Scott v Jess [1984] FCA 289; [1984] 3 FCR 263.

PN224

We refer to page 282 and following for discussion in that case about implied rules and we won't take the Commission to read it now, but we say in general the proposition could be stated as this. That whilst there may be implications which arise from the rules of organisations, the implication of rules themselves is not a matter which should be done nasally and the reasons are set out in Scott v Jess. But more specifically in circumstances where, as in this case, there are specified powers of the divisional branch secretary in the rules, there should be no implication that there is some other more broad or sweeping power. In Callaghan v Federated Clerks' Union of Australia [1987] 22 IR 346 at 375, I think that's in the bundle of document – I think Scott v Jess was in the bundle as well, your Honour, number 10 and Callaghan is number 3 in the list.

PN225

THE DEPUTY PRESIDENT: I'm just trying to think. I am just trying to remember her first name. Bernadette, that's it.

PN226

MR WHITE: Callaghan Magistrate, I think.

PN227

THE DEPUTY PRESIDENT: Yes. Is that right? There you go. People end up in all sorts of strange places.

PN228

MR WHITE: We are assuming that would mean the Sunshine Coast is strange. But Scott v Jess stands for the proposition that the question of implying rules is a very forward exercise. Whilst it is true that there is an implication in some circumstances that can be drawn from the rules, that's one thing, but in Callaghan v Federated Clerks' Union of Australia, the court or Gray J at 375 says:

PN229

General powers of a branch --

PN230

So, about half way down that page about half way through the paragraph commencing "the difficulty", do you see that, your Honour?

PN231

THE DEPUTY PRESIDENT: Yes.

PN232

MR WHITE:

PN233

General powers of a branch council to manage the affairs of a branch would not ordinarily be construed as permitting the branch council to override the express provision of the rules. Similarly, no power can be implied in the rules where such implication would involve contradiction of an express provision.

PN234

And in this case there are express provisions as to the power of the branch divisional secretary, Mr Ravbar. There are express provisions about the control of organisers by the branch divisional committee management.

PN235

THE DEPUTY PRESIDENT: I mean, I can see that, Mr White, and I can see that the rules are not drafted in perhaps an expansive way in terms of powers and functions as some other rules might be and perhaps not in as, if I can say in a sort of modern way, but it is still the case that – and I take it you don't deny this –
Mr Ravbar is still the divisional branch secretary, he is an officer under the Act, he has responsibilities in general terms for the running of the divisional branch and general requirements under the rules and is responsible for the supervision, in general terms, of the staff and the officials and generally accountable to the divisional committee of management and the branch council for the industrial affairs and organising affairs of the branch. All that is true, isn't it?

PN236

MR WHITE: Well, once again, that is expressed, with due respect, at a level of generality which does not really assist in this case. He is of course the divisional branch secretary and he exercises those powers given to him by the rules and that is all exercised subject to the control of the relevant committees or council or conference. Now, what the director has done to make good the broad, the very broad outline, assertions, is to not point to evidence but to rely on the rules. We say there is no evidence and when you look at the rules there is no warrant to go beyond what the rules provide. A general observation such as your Honour made in some senses has the risk if the general observation goes so far as to say
Mr Ravbar is responsible for, has direct control on, or control of, et cetera, it certainly runs the risk to imply – if that is said to arise from the rules – runs the risk to imply from the rules something which is contrary to the specific provisions of the rules which we say Gray J says you cannot do.

PN237

Now, this is responsive to the director whose submissions – and I have highlighted some of those in the earlier paragraphs of our written outline, say that Mr Ravbar controls these people, he is in a position of power and authority, should have reputed to him conduct of all of these people, that he sends his organisers out to contravene, et cetera, all of those things are supported in the director's submissions only by the rules. We say there is no evidence to go beyond that and on a proper interpretation on a proper approach, the interpretation of the rules, not supported by the rules in any event.

PN238

THE DEPUTY PRESIDENT: But I suppose the point is the decision in Callaghan v FCU, Clerks' Union, and all of those cases that are referred to, Boeing v Krantz, and so on, are all decisions about the extent to which there was compliance with the union rules and so on. I mean, it is not the case here. There is a general – there is a range of criteria that the Commission is given to look at in considering right of entry applications and one of them in 513(1)(g) is a general discretion to the Commission. So, I think the submission is that because
Mr Ravbar is the branch secretary, the Commission should have regard to a range of issues that it mightn't have regard to if he wasn't the branch secretary.

PN239

MR WHITE: That's precisely what the submission is. We say when you drill down a little bit, that cannot stand as a general proposition by which Mr Ravbar's fitness is to be assessed. It cannot stand as a general proposition even relying on the observations, obiter observations of the Full Bench in Kong because the Full Bench in Kong make it clear that it must be the facts of a particular circumstance which give rise to a general approach such as that. And so when you look at the facts, there are no facts relied upon by the director. All the director relies on are the rules of the organisation and we say to that extent he is in error. The rules do not support his proposition.

PN240

And to the extent that there is tardiness that as secretary now becomes relevant under 513(1)(g), we say that proposition cannot be made good absent facts, absent specific matters, and to the extent that the director relies on the general conduct of the CFMEU and/or its organisers, in the absence of particular facts, really – and we make this observation in paragraph 44 – it's a back-door method of overriding what it is that the Full Bench in Kong did find, and that is that the organisation at which the officer holder for whom a permit is sought is not relevant.

PN241

THE DEPUTY PRESIDENT: Yes. I suppose you can draw a distinction between the organisation and the office holder.

PN242

MR WHITE: And that's what the Full Bench did. So, you look at the personal characteristics. Now, it may well be, they say in paragraph 27, that in some circumstances if the facts support, then possibly, maybe, if. In this case, no facts are relied on other than the rules and the rules do not support the director's sweeping assertion. What piece of evidence, for example, does the director rely on, let's pick one out, that Mr Ravbar sends his organisers out to contravene these laws? What bit of evidence? I ask that rhetorically. No I don't, because I am going to answer it. The answer is none. None other than the rules.

PN243

THE DEPUTY PRESIDENT: But you concede that this is a case that seems to come within the obiter in 27 in Kong, except that you say there are no facts that would support such a conclusion?

PN244

MR WHITE: Well, let's go back to Kong. I'm sorry, I have my own file which is not as well organised. Number six in your Honour's folder.

PN245

THE DEPUTY PRESIDENT: It is, yes.

PN246

MR WHITE: Yes. Now, your Honour's question whether this comes within paragraph 27 of Kong, they make a general observation:

PN247

Past contravention of industrial and other relevant laws -

PN248

They say can. That is not to say that those breaches can never be relevant to the particular official's fitness or propriety to hold an entry permit where there is no direct contravening conduct on the part of the official. So, that is a general but negatively expressed proposition that leaves it open that past contraventions might possibly be relevant. If it stopped there, then there is no further assistance that can be derived by the director in this case. But then it goes on, the Full Bench gives examples of what might possibly be maybe relevant circumstances for 513(1)(g), that is the facts of a particular contravention support an inference that 123:

PN249

I omitted to take reasonable steps to ensure that those under control are to comply with the law, or are encouraged to tolerate a general non-compliance, then conceivably that might be considered a relevant matter.

PN250

So, as a proposition expressed at that level of generality, we do not necessarily take issue with the observations of the Full Bench. But that is very different from agreeing with the proposition that that which the director relies on in this case fits within that discussed by the Full Bench in paragraph 27.

PN251

THE DEPUTY PRESIDENT: I understand that. But irrespective about one's views about the divisional rules and powers of branch secretary and so on, in a general sense Mr Ravbar is an official with management responsibility in the organisation in the term that is used by the Full Bench, you would have thought.

PN252

MR WHITE: I don't know what terms, the Full Bench used that term. That is a very general term. So, you look at what management and responsibility and you go to the rules and that's where you derive management responsibility and official.

PN253

THE DEPUTY PRESIDENT: Yes. It is a general term. It's general terminology. But it seems what they are saying is that in an application by someone, not a branch organiser, but someone who does have some management responsibility and it is going to vary from organisation to organisation depending upon the position, that it might well be reasonable to take into account what has occurred in respect of others, but conduct by others who in one sense, to again use a general term, report to the person.

PN254

MR WHITE: I understand that. And expressed at that level of generality, we understand that's what the Full Bench says. But the facts of particular contraventions must support it. That has to be determined.

PN255

THE DEPUTY PRESIDENT: I understand.

PN256

MR WHITE: The management and type and limits of the management responsibility need to be determined. The question of whether reasonable steps were omitted to be taken must be measured against the management responsibility and the powers derived from the rules. Whether or not persons are under control of such a person can only be derived from the rules. And even then the Full Bench says that might conceivably be considered a relevant matter.

PN257

THE DEPUTY PRESIDENT: If it is any consolation, in my experience it is always difficult to say that you would control union officials, I must say.

PN258

MR WHITE: And that might even be strengthened where officials are elected. But in any event, your Honour, as I understand your Honour's observations, yes theoretically at a level of generality, Mr Ravbar might be said to be a person who has got some management responsibility. But when you drill down to the – and we might be elevating this too highly – but even if it purports to set out a test, the specific matters which conceivably together might add up to a relevant matter are not made out in this case. And if I read onto the next thing on which the director relies, that is the suspension of the entry permit and that is reference to the Bechtel Construction matter. I have made submissions about that matter already. If the Commission pleases, I do not intend to deal with that at any more length.

PN259

The director disavows any reliance on the Royal Commission interim report. The director then in his submissions contends that, and this is paragraph 55 of the submissions of December 2014, that in determining whether Mr Ravbar is a fit and proper person to be a permit holder, the Commission must have regard to the important consideration of the maintenance of public confidence in a regime. Now, we say what the Commission is required to do is to consider the matters set out in paragraph 513. If the Commission in considering those matters determines that a person is fit and proper to hold a permit, then it is difficult to see how the public interest intrudes into that decision.

PN260

If it is put obversely or conversely that the public confidence is a relevant matter to determine the fitness and propriety of a person seeking a permit, then we say that is expressed once again at such a level of generality as to be unsupportable. For it to be a relevant matter within 513(1)(g) it has to be, we say, relevant to the personal characteristics of the office holder. And we refer to the Kong decision and the paragraphs we have taken you to in respect of that. That nearly finishes my submission, but there is one other matter. The director says that contrary to his submissions the Commission is to be satisfied that Mr Ravbar was a fit and proper person to hold a permit, then conditions should be imposed and he says that in the specific submissions filed last year.

PN261

The director asserts that the conditions which should be imposed are conditions in relation to training, notifications to the Commission of findings of breaches by courts, that he exercise his right of entry pursuant to any permit in the company of others on notice to the director. Now, we say a number of things about that. Notification to the inspector of an intention to exercise rights we say has nothing to do with the personal characteristics required for the issue of a permit or the manner in which the rights conferred by the permit are exercised. Rather, we say it is directed to assisting the director in the performance of his functions under the Fair Work Building Industry Act 2012.

PN262

Whilst the director under that Act, particularly by section 10, has powers to monitor the compliance with designated law, that is a function to be performed by him and it is not a function of this Commission or indeed any other person, including a permit holder, to give assistance to the director in the performance of those functions. The imposition of a condition concerning notice to the director can serve no other purpose and no other purpose, we say, is identified other than the purpose directed to the performance of the director's functions. The condition the director suggests about the right of entry under the permit being exercised only in the company of others seems an odd, on the face of it, condition in circumstances where the director has asserted that Mr Ravbar is in charge of everyone else in the divisional branch.

PN263

But in any event, the conduct of others, that is the person who is the company, we say, is irrelevant to determining conditions. It is irrelevant, we say, the conduct of others in respect of the permit qualification matters you are to take into account or consider under section 513. We say that the Commission should be satisfied that Mr Ravbar is fit and proper. He has held a permit of various sorts admittedly, and similarly under different legislative regimes since 1990. And we say that the general (indistinct) of the director in this case is not supported by the evidence. Those are the submissions, if it please.

PN264

THE DEPUTY PRESIDENT: I just have one matter to raise, Mr White, just so I am clear about this and there might be some clarification required. What I don't have is a copy of the current right of entry permit that Mr Ravbar has on the file.

PN265

MR WHITE: Neither do I.

PN266

THE DEPUTY PRESIDENT: No. That wouldn’t be unusual. But what I do have is the attachment to the application has the certificate of the ACTU issues to the completion of the course and that is dated 6 May 2012. I also have, and you don't have this, but I have got a report from the regulation compliance branch that these matters go to Watson VP and they are allocated to the relevant member of the organisation or panel and that report indicates that Mr Ravbar was issued with permits in matter RE2012/578 on 15 March 2012 and in RE2013/694 on 27 June 2013. So, that seems to indicate there is two permits, which doesn't quite make sense. My understanding had been that there was a current permit and that it expired on 15 March 2015.

PN267

So, I just wanted just to check whether the parties can enlighten me on that.

PN268

MR WHITE: I think the position is this. There are two applications before the Commission, we should have made that clear. One by the CFMEU and one by the CFMEU Industrial Union of Employees Queensland, provisionally – transitionally registered organisation. And we are not sure - - -

PN269

MR HERBERT: That's not right.

PN270

THE DEPUTY PRESIDENT: There is only one RE number. To go back a bit, the application that has been listed is an application which was made on 19 June 2014 but received on 20 June 2014 and it is an application by the CFMEU Queensland/Northern Territory Divisional Branch. So, that's a branch with a federal organisation signed by Mr Ingham as divisional branch assistant secretary. I can understand why that would have happened because one of the people for whom the applicant was lodged was Mr Ravbar. Now, there were other officials who were the subject of the application and they have all been dealt with by administrative actions.

PN271

And some of those applications related to the state registered union, and some didn't.

PN272

MR WHITE: I am told, and I have in my brief, an application by the transitionally registered organisation as well as the CFMEU and I am told that they were together and given the same number.

PN273

THE DEPUTY PRESIDENT: Gave them the same number?

PN274

MR WHITE: Yes.

PN275

THE DEPUTY PRESIDENT: Look, the file doesn't reveal – nothing turns on it. In one sense it's just a question of making sure what the – I mean, the same issues apply, I guess.

PN276

MR WHITE: The applications are identical and the declarations are identical.

PN277

THE DEPUTY PRESIDENT: It's not on the file. It's not on the file. What seems to have happened, so to go back a bit, I am just looking at a memo from one of the staff, and we can double-check this, but it appears that there were a range of applications that were lodged and those were dealt with by the staff. I will just have a look at it here. There is Mr Mark O'Brien and that related to the CFMEU and the state registered union, Mr Anthony Stott of the CFMEU and the state registered union, and Travis O'Brien, also both organisations. So, from what I can see they were dealt with by the staff. And then the matter with respect of
Mr Ravbar gets referred to the Commission because the FWBC says I want to make submissions in respect to it.

PN278

So, that is my understanding. I am assuming that all of those permits have been issued to those three other officials, but there is no indication here that there was an application relating to the state registered union that is to say the TRA with respect of Mr Ravbar. But we can, I mean over the luncheon adjournment, we can check that with the staff in Sydney. This has all been dealt with by the RCB people in Sydney, so we can try and check that. I imagine that from the point of view of efficiency, it would just be a question of finding that application and listing it together, I would imagine.

PN279

THE DEPUTY PRESIDENT: It hasn't been dealt with anywhere else?

PN280

MR WHITE: That's what I was going to say, unless it has been separately granted.

PN281

THE DEPUTY PRESIDENT: I doubt it very much. I doubt it very much.

PN282

MR WHITE: What I can say is I have got two applications on my brief.

PN283

THE DEPUTY PRESIDENT: I suppose it's a matter for Mr Herbert as well, I suppose. From the point of view of efficiency, my suggestion would be that we try and locate the other application and then have it dealt with in these proceedings and we can do that with a bit of cooperation, I think. But leaving aside that complication now, is it your understanding that the right of entry that the branch of the federal organisation expires on 15 March 2015, is that right?

PN284

MR WHITE: Yes.

PN285

THE DEPUTY PRESIDENT: And then your understanding is that the right of entry for the TRA, really the TRA is technically what we are talking about, expires on 27 June 2016, is that right?

PN286

MR WHITE: I'll just check. I did not my learned friend's instructor was not seriously and vigorously when that proposition was put.

PN287

THE DEPUTY PRESIDENT: It would have 18 months to run.

PN288

UNIDENTIFIED SPEAKER: Correct. That's right, that's why we thought there would only be one application made.

PN289

MR WHITE: Well, I don't know whether we need to – we can have a bit of a chat about that.

PN290

THE DEPUTY PRESIDENT: Yes.

PN291

MR HERBERT: So, the director knows nothing at all about a second application. It doesn't appear. It's not on the file and it certainly did not come to us.

PN292

THE DEPUTY PRESIDENT: No, it's not on the file. It's not on the file.

PN293

MR WHITE: It might be a matter just to - - -

PN294

THE DEPUTY PRESIDENT: We will check it over the luncheon adjournment. I suppose it raises the issue of there being an issue about the permit of the federal organisation when whatever is the case there is still a permit for the TRA that exists until June 2016.

PN295

MR WHITE: Yes. I think that was for significant issues. We fully appreciated it.

PN296

THE DEPUTY PRESIDENT: Yes. I mean, for example, if I didn't grant your application, and leaving aside the appeal in the Bechtel matter as well, leave that aside for the moment, in the normal course of events the right of entry for the federal organisation which is really the sort of operative right of entry – I hesitate to use that term it runs out on 15 March 2015, so there would be no right of entry in that case, but there would still be a right of entry for the TRA subject to perhaps some application to set it aside.

PN297

MR WHITE: There is no application.

PN298

THE DEPUTY PRESIDENT: Yes. Anyway, I think both parties should perhaps think about that. We will just try and find out over the luncheon adjournment where this other application has gone to. You were never given an RE number I take it?

PN299

MR WHITE: We'll check.

PN300

THE DEPUTY PRESIDENT: Just assuming we are dealing with a federal organisation, your submission, your application though in the end as to why it is that the permit as sought should be granted, operative from the - - -

PN301

MR WHITE: 15 March, was it?

PN302

THE DEPUTY PRESIDENT: 15 March 2015 with no conditions and that is the operative date, we agree on that.

PN303

MR WHITE: Yes.

PN304

THE DEPUTY PRESIDENT: Yes, 15 March. 15 March is the operative date, yes.

PN305

MR WHITE: You know, if all that stood between that and undertaken another training course, I am sure Mr Ravbar would be content to do that.

PN306

THE DEPUTY PRESIDENT: I just wanted to establish, really, what I wanted to establish was clarity on the date.

PN307

MR WHITE: Yes.

PN308

THE DEPUTY PRESIDENT: All right, thank you. I think it might be a convenient time to adjourn, Mr Herbert.

MR HERBERT: We only have three minutes left (indistinct) if we get you now to adjourn, we can get through a fair bit in three minutes. But I don't know if you'd understand it. Yes, are we allowed to resume at two?

PN309

THE DEPUTY PRESIDENT: Could we make it 2.15?

PN310

MR HERBERT: We are in your Honour's hands.

PN311

THE DEPUTY PRESIDENT: Yes, 2.15 on the dot. Thank you.

<LUNCHEON ADJOURNMENT [12.52PM]
<RESUMED [2.20PM]

PN312

THE DEPUTY PRESIDENT: Can I just state to the parties that over the lunch, I have spoken to the regulation compliance branch staff in Sydney who are dealing witness these applications and they double-checked and they cannot find any application relating to the TRA.

PN313

MR WHITE: That would concur with the instructions I obtained over lunch.

PN314

THE DEPUTY PRESIDENT: Yes. They tell me that all those applications that I was referring to, including Mr Ravbar's, were all lodged on paper, which is a novel thing in any event, and they can find them all and they are all there and they have all been processed and so on, but there is no application relating to the TRA. So, I don't think it was done.

PN315

MR WHITE: No. My instructions are it was prepared but not filed, so no application.

PN316

THE DEPUTY PRESIDENT: All right.

PN317

MR HERBERT: That brings us back to where I thought we were. There is one application before the Commission and it is in relation to the federal organisation.

PN318

THE DEPUTY PRESIDENT: Yes, that's right.

PN319

MR HERBERT: We had no knowledge of that. But can I also indicate that we found out today in the course of the hearing that there was a submission lodged on CFMEU letterhead signed by Mr Ingham in August, I think 4 August last year and that was not provided to the director. We did not know of its existence and obviously had not read it until the course of the hearing this morning. And I don't know if that reached the Commission's file?

PN320

THE DEPUTY PRESIDENT: Yes, it did.

PN321

MR HERBERT: Well, it wasn't forwarded to us at all. I skimmed it this morning. I do not think it says anything that is of any moment, but we were a bit nonplussed. That's my submission.

PN322

THE DEPUTY PRESIDENT: We'd say that.

PN323

MR HERBERT: Nothing that isn't otherwise caught up with the other submissions that we have made. But we made the submissions that we put on in December not knowing of the existence of that document. If it looks like our submissions did not respond to that document there is a good reason for it because it was never provided to us, we didn't know it existed, and we didn't know there was anything to respond to. In fact, we commented, I think, in our submissions on the fact that we had received nothing in accordance with any further material since the declarations that were lodged with the application and there was no other material. It now appears that there is other material, but we don't have it.

PN324

THE DEPUTY PRESIDENT: But you have read it now?

PN325

MR HERBERT: I have skimmed it now and I think I can know what's in it quite comfortable. It does not take matters any further, I don't think, than what my learned friend has said today.

PN326

THE DEPUTY PRESIDENT: So that we are entirely clear what the Commission has got.

PN327

MR HERBERT: Any more surprises.

PN328

THE DEPUTY PRESIDENT: As I say, what I have got is the application which is dated 19 June, the FWBC submission of 18 July, that's the general submission if I can describe it like that, and then there is the specific submission as well. The CFMEU submission in reply of 4 August. As I said, I do have a report from the RCB as well which is an internal sort of Commission document, but it essentially just really summarises the various issues to the registry's knowledge which is this is the document that flagged me to the issue of the dates. And then we come to the proceedings that I have dealt with and the directions that were issued on 21 October and then in the response of that we have got the three submissions that we have been dealing with. So, they are the written submissions that I have.

PN329

MR HERBERT: Yes, thank you. Your Honour, can I take as read the submissions you have referred to which have been lodged by the director in these proceedings and I would speak to them rather than about them. In addition, the final submissions received in reply from the applicant were received by me after close of business on Friday afternoon and so we haven't had the opportunity between then and this morning to prepare any submissions in response and that was the first time that we had seen a response in relation to the merits of the matter because we hadn't seen the 4 August submission which does appear attempts to address some of the merit issues.

PN330

So, my learned friend has dealt with our submissions in his written submissions which, as I say, we only got on Friday night. And to the extent that he has done so, it would be necessary for me to go a little beyond what we put in our written submissions in order to response to what he says about those matters. The core of the issue, I think, as my friend actually put it earlier in his submissions, is the question as to whether the submissions on behalf of the director are able to be sustained, and that is whether they are valid submissions. And that is that there are factors and matters in existence from which you can conclude that it is not appropriate, not safe and not available, for the Commission to determine in accordance with section 512.

PN331

Can I immediately say that in my submission, the first contention put forward by my friend today is to the effect that there is in effect a prima facie presumption of fitness that is inherent in effectively everybody and that once you have filled out the form, then you are prima facie entitled to the grant of the permit being sought unless somebody can demonstrate to the contrary.

PN332

THE DEPUTY PRESIDENT: I think in defence of Mr White, that was sort of the way I characterised it rather than the way he put it.

PN333

MR HERBERT: I understood him to be leading you in that direction, your Honour, to be fair. And that I heard your Honour to characterise what my friend was saying in those words, but that submission, that contention of my submission flies in the face of the words of the Act itself because under section 512 the Commission may on application issue a permit to an official of an organisation if the Fair Work Commission is satisfied the official is a fit and proper person to hold the entry permit. It requires the Commission to be satisfied that the person is a fit and proper person and it requires the exercise of a wide range discretion guided by at least the matters in section 513(1).

PN334

There is no presumption of any kind whatsoever inherent in the fact that a person has applied means that they have any particular level of fitness. The Commission – this is the way in which it is put on behalf of the director – that there is no inherent assumption that because a person has filled out the forms and listed the matters in the forms, that the Act contemplates that they will be entitled to the issue of a permit with the only qualification being, what my friend put it, absent evidence such as of the kind that the director was endeavouring to bring before your Honour. Now, that is not the case law. The matter is at large. No person is presumed to be fit or unfit. The Commission must make a proper enquiry into that issue and have regard to not only they matters in section 513, but also the ordinary human experience that members of the Commission bring to this role and understanding industrial matters generally and all of those other matters as to whether a person has or has not the necessary attributes, without any sort of preconceived idea that the mere fact they have applied for it means that they are untitled unless, in effect, the contrary can be shown.

PN335

THE DEPUTY PRESIDENT: Except, Mr Herbert, that in practical terms as we know, I don't know how many union officials there are in Australia, but every union official has applied for a right of entry permit and all of them have been dealt with administratively by the Commission really with the exception of those that have taken objection to by your client. In essence, that's what is happening. And they are the matters that are then the subject of this litigation. So, everyone around Australia who has undergone the relevant training, complies with the Act, fills in the forms, and they are granted as a matter of course by the Commission.

PN336

MR HERBERT: That may have been so in the past. But it is not only my client. The MUA wasn't, which is one of the first matters, anything to do with my client. And there are instances in which objection has been taken. But it is certainly more recently the case that my client has taken particular interest in the very process that your Honour has addressed and that is the fact that these matters were dealt with administratively in circumstances where it would appear that an assumption may have been made that, absent some contrary evidence, the person is necessarily fit and proper. And my clients sought to have that seriously tested in a range of cases with some success on the basis that these matters have been challenged, on the basis that it is simply the case that you make the application and unless somebody comes along and objects, then you get it administratively.

PN337

That may have been what happened in the past. But once tested by my client, it has now been shown that it is in fact not a correct approach. The matter has to be looked at. I am addressing the Act in light of the fact that your Honour is seized of this matter and what the Act requires you to do is to exercise a broad ranging discretion and not make any assumptions one way or the other as a starting point of this matter. And the mere fact that a person may have applied, in the vast majority of cases one would have to say that an experienced union official who has been going around, doing their work, and there is nothing heard adversely about them and they have no character traits that have brought them to the attention of the authorities, that have been involved in any bad conduct or complaints of any kind, and have just been doing their job, would be capable.

PN338

That evidence would be, in the ordinary course of things, sufficient to say that that person must have the necessary character attributes and that they are a fit and proper person to hold the permit because they have had one for a while and there has been nothing adverse to anyone's attention and nobody has raised anything. Now, that does not involve an assumption or a presumption. That is an evaluation of the available evidence which is, in some cases, the absence of evidence speaks volumes in that way. But in this case, one suspects that that submission is put forward and the emphasis is put on evidence due to the fact that the CFMEU has seen fit not to adduce any evidence in these proceedings and they have had numerous opportunities to do so, both in the first application when they lodged the application, they are not confined over form F42, they can put in a ream of material in order to explain things, whatever.

PN339

They put in another submission in August, they were invited by your Honour's direction to put in all the material and submissions they wanted to put in by September, they put in a submission objecting to jurisdiction and that's all, the jurisdiction to my client, which is a submission which they since abandoned. No evidence. Nothing. And yet they knew, as my friend went through it this morning, that my client was there making a very big noise about the fact that there was enormous difficulty about the longstanding notorious conduct of the CFMEU in relation to industrial matters outside the bounds of the law and that this reflected in the ways that my friend went through this morning, and I don't need to go through all again, that reflected on Mr Ravbar and his fitness for this role.

PN340

Now, all of that has now been crystallised by my client again, in the absence of a shred of evidence adduced by the union. We are the only ones who know these things. It has been crystallised on the basis that Mr Ravbar's conduct is, or the conduct of those who have been found by the numerous court decisions – and we have listed them as an attachment on the back of our submissions – the cases that have been heard and determined and judgements have been made and penalties have been imposed involving the CFMEU since Mr Ravbar became divisional branch secretary. We produced that material, and my friend says there is no evidence. There is evidence aplenty, which I will take your Honour to in that material.

PN341

It was absolutely crystal clear that the director was taking issue with Mr Ravbar's involvement in those matters and what that said about Mr Ravbar. As we stand here today, and this matter has been going since June last year, as we stand here today in the last week of January, we still do not have a shred of evidence from the union explaining the matters about which my learned friend criticised our submissions this morning. And that all comes back to the original submission that somehow or other my learned friend's submissions have sought to massage the position into one in which the director has an onus of establishing that
Mr Ravbar is not fit and proper.

PN342

And if we do not call any evidence, hard smoking-gun evidence of Mr Ravbar misconducting himself in a tangible way, then he is deemed to be fit and proper and that is the basis, as I understand it, of which my friend has attempted to have the case put. That is the practical outcome of what he said. We have no evidence of what he did. Well, apart from that we do have an amount of evidence that is capable of supporting and should support a proper inference being drawn as to
Mr Ravbar's involvement in relation to that. The onus isn't in fact on my client. My client has the capacity, and in some cases the duty, to raise issues that go to these questions before the Commission and make submissions that the Commission should act in a particular way.

PN343

But it is not the case that it is determined on the question of onus. You should, with respect, the Commission should weigh up what the union puts forward in support of its own candidate, Mr Ravbar, in light of all the surrounding circumstances that have been directed against him and then examine what the evidence is against him.

PN344

THE DEPUTY PRESIDENT: Yes. I hear you. I suppose another way of looking at it is, is it appropriate to conduct these matters on the basis which this application has been made in the sense that there has been an application that has been lodged in the normal sort of way, it has got a statement from the authorising officer, and it has got a statement from the applicant that deals with the issues that are set out in 512 and 513. I know you say not adequately, but it attempts to deal with that. I mean, the alternative would have been for the CFMEU to put on a general witness statement by Mr Ravbar on his history as a union official and for him to go into the witness box and for you to cross-examine him. Are you saying that's what should have happened?

PN345

MR HERBERT: Well, it is matter for the applicant as to how they meet circumstances that are raised against them. The director came out within a month and filed general and specific submissions raising the conduct of the CFMEU as a serious black mark against Mr Ravbar obtaining this permit. The CFMEU, who is the applicant in these proceedings, has elected from July last year after those submissions were put on to adduce no evidence at all in respect of those matters. Did not seek to explain those matters from Mr Ravbar at all. And there is a mountain of material that was put forward concerning, if one goes through the general submissions and the specific submissions, concerning the CFMEU's involvement in proceedings in which they have been fined very substantial amounts of money and a number of organisers have been fined very substantial amounts of money and connecting Mr Ravbar to that in the submissions in July last year and they have elected not to call evidence explaining that Mr Ravbar has no responsibility for those matters.

PN346

And they have gambled in that respect and, with all due respect, have lost because they have gambled that if they keep very quiet, the result is if they keep very quiet and say nothing there will be no ammunition that anyone can throw back at them. Now, they are the only ones that can know the internal workings of the organisation as to who was expressly authorised to do what and to who gave what directions to whom and who controls who. No one else outside the organisation could know that, could have that evidence, and they have elected to keep that evidence very close to their chest and not share it with the Commission. And then they have attempted, on the basis of just moving ahead, what effect my learned friend has submitted is that the CFMEU in effect, to use the Maritime analogy, is the Mary Celeste of the trade union movement. It's a ship without a crew.

PN347

It does things that nobody, no person, the body corporate does things but no person is responsible for. And the reason why they say that the director hasn't called evidence of the matters, of the internal workings of the CFMEU in order to demonstrate that Mr Ravbar is in fact as responsible, as all appearances would suggest. They have not rebutted the very clear inference that arises from the structure of the union, to which I will take you shortly because my learned friend has left a very large part out of his submissions in relation to the applicable rules, there are a number of absolutely crucial rules to which he was drawn. So, in the circumstances this ship without a crew theory, that the union is floating along doing these things, it is the organisers who are doing it, but back in the headquarters there is nobody there, there is nobody controlling any of this. And certainly not Mr Ravbar.

PN348

But they are not saying he is not controlling it, they say we haven't proved he is controlling it. Well, with all due respect, the appropriate analysis is that if the union chooses not to demonstrate Mr Ravbar's disconnection with the conduct which has to be authorised by somebody at his level or equivalent had occurred, I will be submitting when one looks at the cases and the judgements to what the judges said actually occurred in relation to these matters, the findings by the judge, most of which are consent findings taken out of the read statements of fact, the primary submission is that it is absolutely inconceivable that
Mr Ravbar was not knowingly and deeply concerned, if not personally directing, the affairs which occurred that are dealt with in the cases.

PN349

And all the CFMEU says to the Commission is we don't have to say anything about that, those things just happened, they are activities of the organisation, nothing to do with any natural person in that organisation other than the organiser over the street and nobody can prove that Mr Ravbar gave those orders and therefore you must conclude, in effect, that he did. Well, fortunately jurisdiction of the Commission allows that you draw inferences from material of that kind based on your own understanding and experience of the way organisations work and by reference to the rules and the powers granted to Mr Ravbar under those rules and how they apply in general practice and you are entitled to infer.

PN350

And we would be asking that you do infer, that Mr Ravbar was one of the central players – have to be if not the central player certainly one of the central players – in the conduct which has been penalised in respect of his divisional branch during his time as secretary to the tune of a few dollars shy of $1 million in about five or six years. Now, no other trade union one would expect in this country would ever approach a record of that kind and that is, with respect, why it is that my client is taking issue with these proceedings that these, when one sees the repetitive events and the ones which occurred during as we call it the reign of Mr Ravbar are those which are listed at the back of our submissions.

PN351

We have the dates of the events and we have the dates of the court findings in there and the first event occurred in June 2008. I think the most recent one was in 2011, but the most recent court finding was in February 2014 of that group. It appears from those figures these things take two or three years to get through the court system, so there is a significant delay. Which is one of the reasons why we say that reporting to the Commission on one of these applications the nature of proceedings in which a person has been named and is being proceeded against is absolutely imperative because the Commission needs to know whether the sorts of conduct and allegations about conduct are current.

PN352

There are current allegations that are consistent with earlier found contraventions, or whether the Commission will be amenable to a submission that, well, all of these contraventions, the latest one was 2011 and it hasn't happened for three years, we haven't had a contravention for three years, ergo he must have been a good boy for three years. Well, if it turns out that in that time they have been named in three other proceedings which are working their way through the court system, that is maybe not a submission that the Commission would listen too hard to in whether or not there have been findings or not. The fact that they take two or three years to go through the courts is unfortunate, but should not be a matter that is left out of the calculation.

PN353

I will come to those issues shortly. Can I also deal with the submission by my learned friend to the effect that it is suggested, I think, that the director is submitting something other than that these matters are to be determined by reference to the personal attributes of the person on whose behalf the application is brought, in this case Mr Ravbar. We are certainly not doing any such thing. That would be flying in the face of three full court decisions. The submission that we make is that these matters are to be determined, as the Full Benches have said on a couple of occasions now, by reference to the personal attributes of the person on whose behalf the application is brought and so far as those attributes bear upon the question of their fitness to hold a permit under the Act.

PN354

Now, the difficulty in this matter which my learned friend has sought to identify and use it to criticise the submissions we make, is that in determining the question of the attributes of Mr Ravbar in this case, to bring it down to the facts of this case, the starting point is of course to look at the relevant section 413 attributes, which it is mandatory that must be looked at, and they are the attributes set out in 513(1)(a) to (f). Now, those matters have been dealt with in the submissions. There is, as my learned friend has pointed out, no statutory obligation in relation to disclosure, although I think my friend subsequently did concede that disclosure is probably an obligation.

PN355

Can I deal with the submission in that respect by referring to the case which is under tab 21 in the book of authorities where the matter was dealt with by Watson VP very recently, on 16 October 2014.

PN356

THE DEPUTY PRESIDENT: This is Darren Taylor?

PN357

MR HERBERT: Yes. And paragraph 6 of that decision and starting at the end of the third line:

PN358

In reaching the conclusion, I acknowledge the significance raised by the Fair Work Building Industry Inspectorate and I consider that there should have been disclosure of the proceedings that were on foot in relation to Mr Taylor and the potential consequences of those proceedings. I consider that it is appropriate to describe the requirement to disclose that material as a duty that there was a failure in that regard by the applicant in the organisation and Mr Taylor to draw to the attention to the Commission of those matters in the application that was made.

PN359

So, Watson VP at least is of the opinion in that case the obligation to disclose both the proceedings on foot and the possible consequences, he describes it as a duty on the part of the applicant. So, for my learned friend to seek to say, well, the disclosure exercises is not as important as all that, it is in my submission now proper to be taken as being a duty. And one of the fundamental reasons for that is revealed in relation to the Children's Hospital matter. What you will see in relation to that by my learned friend was to play down the importance of that matter by saying that despite the fact that Mr Ravbar had been named as the 14th respondent in one of those two matters that were heard together, that it was just a mere allegation which was denied and there is no finding and therefore failure to disclose anything in relation to that is of no consequence because it is not something that you are required under 513(1)(a) to (f) to take into account.

PN360

But all of that is to say that the applicant and the person on whose behalf the application is brought are at liberty to self-select the information depending on their own view of the seriousness of the matter. Now, if their own view is, well, it is just an allegation, I have denied it therefore in effect those proceedings are of no consequence, that will be for the applicant to make the judgement as to whether that is or is not of any consequence in the view of the Commission. The Commission cannot take those matters into account, or disregard them, or put them to one side or whatever, unless the Commission knows about them.

PN361

Now, it might very well be the case that once the Commission is informed of the existence of the proceedings, is able to evaluate what the proceedings really are about and whether the allegation, even if true, was of no consequence. The Commission would be perfectly entitled to disregarded it as having any particular importance in the case of somebody who had no prior contraventions. If, on the other hand, the person concerned had a dozen prior contraventions, this was another one on very similar grounds, very similar facts, brought by a similar authority, that appeared to have very serious prospects of success, then the Commission would be entitled to say that there is a considerable currency about the allegations and the fact that led to the deliberations.

PN362

Now, what effect that would have on the ultimate outcome would be a matter for the discretion of the Commission. But again, I emphasise it is not for the applicant to self-select whether a matter is important or not. It is for the applicant to disclose these matters. It has a duty to disclose matters, that is matters that have been concluded and matters that are on foot, not matters that are just the subject of a rumour, or innuendo, or barroom gossip. But these are serious legal proceedings brought in a serious legal court in the subject of a trial, being vigorously pursued by somebody, presumably a serious employer, and the Commission is entitled to know about them.

PN363

The point of it may well be that the day after these proceedings are fulfilled and we walk out of here, a judgement might be handed down in which Mr Ravbar is very seriously propped on the knuckles, or found to have contravened something, and how could you know, how could the Commission as presently constituted know, that there was something of that kind, whilst you are considering his fitness and priority, a judgement is handed down in a matter that you haven't been told about and didn't know to look for it, unless somehow or other the rumour mill generated that and you went on your own enquiry?

PN364

The point about it is you need to know the proceedings are on foot and the Commission needs to be able to make a proper evaluation as to whether they are serious or not. So, we say disclosure is important, disclosure of proceedings in which he is involved is important. And the mere fact that it is said that they happen to be under appeal at some point, or that a judgement hasn't been handed down, is certainly a matter that the Commission would then factor into the equation.

PN365

THE DEPUTY PRESIDENT: Could I just ask you about Watson VP's decision, which is handed down two days – there's a few cases happening in this area, I guess, makes it a bit difficult. It is handed down in October, then there is a Full Bench decision, or two Full Bench decisions of 21 October, these are the ones there is the CFMEU against the director in the first being Jarvis and the second one being Te Moho.

PN366

MR HERBERT: Te Moho, yes. I was in those.

PN367

THE DEPUTY PRESIDENT: Yes.

PN368

MR HERBERT: As was my learned friend.

PN369

THE DEPUTY PRESIDENT: But it appears to me that, I mean, the statement of the general approach, just looking at the decision, I think not surprisingly they have reproduced the passages. It's the same Full Bench, isn't it?

PN370

MR HERBERT: Yes.

PN371

THE DEPUTY PRESIDENT: They have reproduced the passages in both decisions, so it appears to be the sort of up to date summary of the approach by the Full Bench in both of those cases. And Watson VP sort of states it in a much shorter form when he is dealing with another issue, but he is consistent, I think.

PN372

MR HERBERT: Yes. But the point being, there is a duty to disclose according to that decision and the reason for that, in my submission, is so that the Commission can evaluate whether it is important or unimportant and it is not for the applicant to decide whether it is important or unimportant, but rather to tell the Commission then make the submission about its importance or lack of importance so the Commission can make its decision in the full knowledge of everything that might bear upon that decision. And having them in the subject of some very hotly contested litigation in that way may be something which the Commission might in the circumstances take into account or disregard, but it ought not be denied that opportunity to hear the submission be made.

PN373

In relation to the submission my learned friend made – no, I won't deal with that. Can I then go to the crux of the matter and I will deal with the rest of my learned friend's submissions in what I say about that. The primary contention that is made is that whilst the issue of the question as to whether Mr Ravbar is or is not a fit and proper person is the issue that is to be decided and it is to be decided by reference to his personal attributes so far as they bear upon that question, the starting point of that analysis depends upon the particular facts of the case. Now, what one would ordinarily do in making the analysis would be to go through the list of mandatory considerations that are set out in section 513(a) to (f) and if they have been exhausted without there being any particular killer blow in relation to any of them in relation to the application, then the Commission moves on to consider whether there are any other, as it were, elephants in the room, any other issues bearing upon the personal attributes of Mr Ravbar that require resolution or require the expression or the formation of an opinion, and if so is that opinion likely to be adverse to a finding as to whether Mr Ravbar is a fit and proper person.

PN374

Now, in the ordinary case, in the other cases that have been decided for the most part, it has involved the act of misconduct and public contraventions undertaken by a range of officials, in this case of the CFMEU, where they have been detected, apprehended, brought before the courts, there have been penalty proceedings, et cetera, in relation to them and those matters are now on the court record. They are there for the world to see and they are included within, for the most part, the (a) to (f) considerations. But in this particular instance, putting to one side for a moment the contravention in 2002 in Hamberger's case, we are confronted with precisely the kind of situation that the Full Bench said, not in obiter but as a critical part of the reasoning in that decision in the Kong case, was a factor, in the opinion of the Full Bench, which can be taken into account in an appropriate case.

PN375

Of course, these things depend on the facts. But when I say can be taken into account, I am paraphrasing what the Full Bench said because what they actually said is very important. And as I say, my friend was seeking to marginalise this passage, particularly in paragraph 27, by saying it was obiter, but one of the core matters which fell to determination in that proceeding was the submission that was made that it was very relevant in the sense that it said a lot about the character of Mr Kong that he continued to work over a period of time and do the bidding of an organisation that was prepared to send him out and break the law - this is me paraphrasing the submission.

PN376

And if the organisation was prepared to send him out to break the law on a repeated basis and that organisation was sending other organisers out to break the law on a regular basis as are disclosed in the cases, then it said something about the character of a person who would continue to do that bidding on the part of the union. Now, that was paraphrasing.

PN377

THE DEPUTY PRESIDENT: there is no finding that Mr Kong was sent out to break the law in these decisions.

PN378

MR HERBERT: No, no. I am paraphrasing what the submission was put. Because what the Full Bench said in paragraph 27, 26 and 27, was to deal with that submission by attempting to draw a line between the circumstances in which the conduct of the organisation does have something to say about the personal attributes of an applicant and when the conduct of the organisation does not have anything to say about the attributes of the person. So, it is critical to the decision. And they draw the line by reference to the remarks they made in paragraph 27. And they have said in paragraph 26 leading up to this:

PN379

There was no suggestion that any of the identified contraventions involved any act or omission on the part of Mr Kong.

PN380

Now, I stop there to say in fact in the material that appears not to be correct.
Mr Kong was involved in contraventions and the materials show that. But be that as it may, while it may be accepted that the susceptibility of an official to comply with a direction from his or her employer organisation to engage in lawful conduct may well be considered to be a relevant matter under 513(g). So, they accepted the proposition that that bears upon the character, that is to accept the corrections.

PN381

There was nothing put to the delegate at first instance on appeal that suggest that the industrial history set out in the annexure demonstrate anything with respect to any personal susceptibility on Mr Kong's part in that respect.

PN382

So, it said on the facts of this case Mr Kong wasn't sufficiently involved in any contravention such that you could say that he had a susceptibility to take direction to disobey the law. Now, that was a finding on the facts of that case that purported to be a finding. As I say, it is contradicted by an earlier part of the decision. But leaving that to one side, they then draw the line to say:

PN383

However, 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 fairness or propriety to hold an entry permit.

PN384

That is, the officer, what my learned friend said, is saying that conduct by an organisation can be relevant to the fitness of a person to hold a person, that is the conduct of an organisation can be relevant to the personal attributes of a person. Which persons, one asks?

PN385

Where the contraventions did not involve any direct contravening conduct on the part of the official.

PN386

So, no direct contravening conduct on the part of the official. That is, they haven't been found to have committed any breaches of any laws which Mr Ravbar has not, since 2002 – leaving aside the Commission matter – and they go on to say how that might be so:

PN387

If, for example, the facts of a particular contravention or contraventions -

PN388

Plural:

PN389

- supported an inference -

PN390

An inference:

PN391

- that an official with management responsibility in an organisation omitted to take reasonable steps to ensure that others under his or her control complied with the law, or encouraged or tolerated a general culture of non-compliance with the law, then conceivably that might be considered to be a relevant matter under section 513(1)(g).

PN392

Now, I don't think conceivably takes the matter one way or another. My learned friend sought to introduce the words maybe, possibly, if. But effectively what they are saying is such a matter, that is that an official who has not directly contravened any law as such, but that a history of contraventions by the organisation – it must be because there are no contraventions by the official concerned – a history of contraventions by the organisation 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 complied with the law.

PN393

So, the contravening conduct that is relevant and goes to their personal attributes is the conduct of being in management, having management responsibility and omitting to take reasonable steps to ensure that others under his or her control complied with the law, or encourage or tolerated a general culture of non-compliance with the law. That bespeaks a personal characteristic on the part of that official so that the Commission is not confined to considering simply the contravention matter set out in 513(1)(a) to (f), but can consider, because if
Mr Ravbar has not done any of those but, for example, in a management position and fails to stop other people from doing that same thing, or failed to take reasonable steps to ensure that they complied with a law, or encouraged or tolerated a general culture of non-compliance with a law, that says an awful lot about his character.

PN394

So, we are not suggesting, as my friend repeatedly put in his submissions, that it is all about the actions of the union and that's all it is and that Mr Ravbar should be, in effect, found to be not fit and proper simply by some form of association with the union. It is not the case at all. We adopt the connection which the Full Bench has said can be a relevant matter relating to a person's character and can be taken into account as bespeaking personal attribute which would demonstrate that they are not a fit and proper person. Not just because they have committed contraventions, but because they have caused, or tolerated, or encouraged, or failed to stop others under their control committing contraventions. When you look at it in that way, it is as obvious as it could possibly be that that must be a reasonable assessment.

Because how could it be that if one had, in a hypothetical case, a ring master in a union office in a managerial position who was sending his organisers out to break the law, they get caught, fined, punished, they lose their right of entry permits, they rule it out, get another one, send them out, same thing, the union gets a fine, the organiser gets a fine, the person doing it gets nothing.

PN395

THE DEPUTY PRESIDENT: Doesn't that submission stand and fall on the position put that people are being sent out, as you put it, to break the law? I mean, people are employed to do a range of things as union officials. Whether that be to check whether people are being paid correctly, which was one of the original purposes of right of entry, or to ensure that there is a safe system of work, or to ensure that they are able to persuade people to join the union. Now, all of those officials carry out the duties that are allocated to them, in this case by Mr Ravbar and I don't think this would be contested by Mr White.

PN396

The divisional branch has got a whole range of responsibilities. It operates in a difficult industry. I don't think anyone would deny that that's the case. An industry where there is often a lot of conflict. And it may be the case that on occasions laws a broken, it doesn't show that the secretary has acted in a way which is designed to have the officials who report to him or her break the law, or to act in a way which is not conscious of their legal responsibilities.

PN397

MR HERBERT: We don't need to put it that highly. I gave the hypothetical example of the ring master sending people out to do these things. But what the Full Bench says is that the bar is significantly lower than that. I did that by way of illustration to say how can it be that the people who are going out to break the law, going out and breaking the law, lose their permits, but the person who sent them is considered to be fit and proper to hold exactly the same permit.

PN398

THE DEPUTY PRESIDENT: But I mean, what they say is that may well be appropriate in the appropriate case, and maybe this is such a case, I can see that argument under paragraph 27 as I said before, that it may be the case that that should be taken into account. Whether it is decisive or not is another question. But I think the Full Bench says in both of those decisions handed down in October that really all of this is a balancing discretion, it is a balancing sort of exercise that is undertaken, perhaps this is a factor that should be weighed in the scales in such a case. Whether it is decisive or not is another question.

PN399

MR HERBERT: We only, we submit, yes it is a factor that must be balanced in the case and when I come to it I will be demonstrating to your Honour why it should be decisive in this matter because the evidence is all one way in the cases. That is the published cases by the courts as to what they said happened, that that meets the description which the Full Bench said when I said they set the bar a lot lower than sending people out to break the law, which it is an inference that that is what happened on a number of occasions, but they said that that official omitted to take reasonable steps to ensure that others under his or her control complied with the law, or encouraged or tolerated a general culture of non-compliance with the law.

PN400

Now, the culture of non-compliance comes from a number of Federal Court decisions about the CFMEU where various court judges have said there seems to be a culture of non-compliance in relation to this organisation. Now, that is not specifically addressed to Mr Ravbar, but it is not addressed to anybody in particular but the organisation. But encouraged or tolerated a general culture of non-compliance with the law. Now, when one looks at the big picture here, when you take a helicopter view of the facts, that is exactly what occurs here, that
Mr Ravbar is centrally involved, if not personally and directly involved and we are not in a position to say so and the person who can say so has declined to provide the evidence, but the only inference is that this conduct could not have continued to occur unless the person effectively managing the union from day to day was either encouraging it, tolerating it, failing to take any reasonable steps to stop it.

PN401

Now, I don't think the Full Bench even went so far as to say that they are directing it. I mean, if so facto, if the person is directing it, that is a lot worse than failing to take reasonable steps to ensure that people complied. But again, this decision set that as the benchmark came out on 4 September 2014 and the CFMEU has declined the opportunity to present it to them by putting submissions in a couple of weeks later to address this issue as to why it is that Mr Ravbar would not be seen to be this person. And they are gambling with no evidence as they have been treated by the Commission as the equivalent of no involvement. Then, of course, the usual rule about that is that if you decline to give evidence on the topic where one is assumed in the courts to have a view that the evidence would not assist you.

PN402

Now, on the facts on this matter the Full Bench said Mr Kong isn't in that space that they have described above, and of course he wasn't on one view in that space, but we say Mr Ravbar is and was. Now, that is not over. That is a core determination as to where the boundaries why and a core determination as to why our submissions about Mr Kong were to be dismissed. Because you can take it into account if it reaches this standard, but Mr Kong doesn't reach that standard. As I say, that is not over. Now, can I then take you to the rules of the CFMEU to demonstrate why it is that Mr Ravbar ought to be taken to be a controlling, if not the controlling, person in relation to this organisation during the period. And as the Full Bench said, it appears picking her words fairly carefully in paragraph 27:

PN403

If the facts of the particular contravention supported an inference that an official with management responsibility -

PN404

Et cetera, et cetera. We are asking you to infer that this official with management responsibility is involved, as the Full Bench said in paragraph 27, and factor it into account and for the reasons we are about to tell you, it ought to be decisive against Mr Ravbar. You were taken to the rules this morning, rule 40. There are divisional rules and there are divisional branch rules. The divisional branch rules appear to be the relevant rules for these purposes. Rule 40 sets out the supreme governing body which is the divisional branch council and it is the supreme governing body of the divisional branch and rule 40(2)(i) of (ii), and unfortunately the numbering of these provisions I almost impossible to detect. I have the copy which is on page 44 of 82 pages. I think you should have the same copy.

PN405

THE DEPUTY PRESIDENT: Yes.

PN406

MR HERBERT: At the bottom of page 44 there is a (ii). The former numbering seems to be 40(2)(ii).

PN407

THE DEPUTY PRESIDENT: There is separate rules for each branch. So, the Queensland rules seems to start there, but there is no heading that says in Queensland.

PN408

MR HERBERT: No. But the text, the second line refers to the Division Branch Council of Queensland Construction Workers Divisional Branch.

PN409

THE DEPUTY PRESIDENT: Yes.

PN410

MR HERBERT: Now, the divisional branch secretary is number three as a member of that, so Mr Ravbar sits on the highest governing body. But it meets no less than three times a year, according to the rules. Now, the powers of that body on which he sits are set out in 40(4), but again it is very difficult to follow that numbering, and that's on page 56 towards the top of the page. Now, that is the highest deliberate body of the divisional branch and I have those powers set out on that page. I do not need to take you to them. Now, rule 42 to which my friend did not go, has very significant provisions.

PN411

Now, under 42(a)(ii), there are a number of paragraphs. There is (a)(i), (ii), (iii) which seem to be a cascading provision over time for the membership of the Queensland Construction Workers Divisional Branch, which is called the divisional branch executive rather than a management committee. But you will see in each one of them the divisional branch secretary is a member of that body as well. So, Mr Ravbar sits on that body. Now, going over to subparagraph (c) on page 60, that's 42(c):

PN412

It shall meet at least one each month and subject to a review of the action of the divisional branch council shall have the care, control, superintendent's management and administration in all respects of the affairs, funds, property of the divisional branch and shall have all the powers of divisional branch council including, without limiting, the powers subject to rule 16 thereof to amend or add to the rules.

PN413

So, it has absolute, it appears, plenipotentiary powers over the divisional branch subject to a review of the actions by the divisional branch council. They can control everything and anything. Now, Mr Ravbar sits on that body. But very importantly, my learned friend did not go to this. He was looking at rule 46 which are the express powers of the branch secretary. But subparagraph (e) on that same page, page 60 of 82, they, meaning the executive:

PN414

Shall be responsible for the control and supervision of all officers. They may delegate this responsibility in respect to nominated class of officers to the divisional branch secretary 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 upon any terms and conditions they see fit.

PN415

Now, the branch executive which meets, under the rules, no less than once a month, one would imagine being made up of the number of persons who were on it, would not be sitting in the office on a daily basis managing the affairs of the union. It is ill-conceivable that those persons would be doing that there. There is an express power, which my friend did not go, for the branch executive with its plenipotentiary powers over everything and anything within the branch, can delegate to one person and one person only to manage it on a day to day basis, presumably when the executive isn't sitting. And the only person they are entitled to delegate to is Mr Ravbar.

PN416

Now, one is entitled to infer that that rule is invoked because there is no one else they can delegate to under the rules, there is only him under that rule, and that if they don't sit every day in the office running the business of the union, that is if the executive doesn't sit every day in the office with their monthly meetings, then Mr Ravbar is the nominated person to run the union under the rules in-between those meetings on a day to day basis. And because they delegate those responsibilities to Mr Ravbar, he has plenipotentiary power over the union subject to the executive, presumably having some executive power on which he sits, having something to say about that, or the council every couple of years having something to say about both of them.

PN417

But he is the one with the day to day, under the rules, he is the only one to whom the delegation can be made. As you say, these are not very modernised rules and they are a little bit clunky in the way that they operate, but on the face of it translated in the day to day practicalities of union life, in my submission, that means that Mr Ravbar is the only repository of the day to day powers of the executive. And my learned friend, without producing a shred of material from the union, asks you in effect to accept the fact that my client cannot prove what went on inside the union meetings and Mr Ravbar doesn't exercise those powers, despite the fact he is the only one under the rules that can.

PN418

Now, we haven't seen the instrument of delegation, but you would be entitled to infer it is about 100 percent certain that that delegation has occurred or does occur because the executive otherwise would need to run the union on a daily basis. It has a collected body. And that simply doesn't happen, in my submission, in the real world. Interestingly also at clause 42(r):

PN419

The divisional branch management committee will have the power to appoint temporary organisers whenever this is considered necessary. They shall not by virtue of the appointment as temporary organisers be officers of the branch, nor shall they by virtue of their appointment as temporary organiser exercise any function of management, but shall act as directed by the divisional branch secretary.

PN420

By Mr Ravbar. So, it is specifically appointed in rule 42 as the director of any temporary organisers, under 42(r). Under 42(e), he is the only potential delegate of the executive itself and the executive has full superintendent management administration in all respects of the affairs of the union, which means in effect all of the employees. Now, reading those rules against the duties in rule 46, that closes the gap that my learned friend attempted to suggest was there. Somehow or other the duties of the secretary are restricted to those matters in rule 46. Of course as we now know from rule 42(e), they are not restricted at all. He is the intended donee of all of the responsibilities to actually run the union when the executive isn't actually sitting.

PN421

And my friend sought amongst the other matters that they are specific duties but they, of course, are entirely trumped by a delegation from the executive. And you haven't heard the union say that no such delegation has ever been made. In fact, they have been entirely silent about all of this. But my friend sought to skate over in the circumstance of this matter rule 46(h):

PN422

The divisional branch secretary shall be responsible for the itinerary of organisers' duties.

PN423

Again, it is slightly clunky, old fashioned language, but the itinerary of organisers' duties in English, in my submission, means what they do every day and plan out, one would have thought, as an itinerary would be, what they would be doing days or weeks ahead. That is a direct responsibility under the rules to plan what the organisers will be doing, which means in practical terms when we come to the cases if six or eight organisers turn up on a building site or collection of building sites all at the same time, on the same day and the courts found that they then called unprotected industrial action on that site, or on site, or encouraged unprotected industrial action on that site and there is six or eight of them at the same time and the same day, then the person with responsibility for organising their itinerary, one would think, knew that they were there and what they were doing, or had a pretty good idea.

PN424

And in the circumstances of the number of times in which organisers are admitted by the union have gone out on the sites and engaged in unlawful activity, the person who has the day to day running of the union under rule 40(e), one would infer, or the person who has direct responsibility for the organisers' day to day activities, one would infer, had a very large amount of input into whether the organisers went to that place and what they did when they were there, in more or less general terms. And if they went to a place and conducted meetings in working time, encouraged workers to walk off the site in contravention of 418 orders and in contravention of the Act, then one would have to say that there is a more than a reasonable inference that the person with responsibility for the day to day running of the union, responsibility for their itineraries, also knew that that's what they were going to do.

PN425

In a number of cases that I will show you the text, it was admitted and accepted and found by the court that the actions of the organisers that went out to those sites were deliberate and planned and coordinated in various cases. Those words are used. Deliberate, planned, coordinated. Now, without a shred of evidence from the only person who would know, namely the CFMEU, my learned friend asks you to infer in effect that Mr Ravbar had nothing to do with any of that, or at least we cannot prove that he did. On those rules, unless he is absent without leave and completely asleep at the wheel and not complying with the rules and responsibilities that he has under the rules, that he must have had a very great deal to do with what was going on time and time again.

It couldn’t have happened, certainly not repeatedly. One might have had a rogue organiser who went out and did something really silly, who was rounded up and disciplined and dealt with for doing that thing, but not when six or eight of them turn up at one time and then they do it six days in a row as in one of the sites that is in the cases that are attached to the back of the submissions. So, what we say about that is that that conduct gives rise to the clearest possible inference that that not only was Mr Ravbar not stopping or discouraging or trying to control that unlawful behaviour, because if he was trying to do so he was demonstrably unsuccessful on a reasonably regular basis.

PN426

The proper inference is that in all probability he was actually directing that from behind the scenes because organisers do not go out and do that sort of thing en masse off their own bat, not if they want to keep their jobs. And the consequence of that, of course, is that that activity that we referred to earlier, confined to the six or seven cases in the submissions, cost the CFMEU $960,000 in penalties. Now, what union secretary would sit still for close enough to a million dollars worth of fines incurred by all his organiser's activities without sacking everyone on site, who would only get another of the union into such disrepute, who are only going to cause such terrible problems with the union and cost them a million dollars in fines.

PN427

What union official in the circumstances who wasn't actually supportive of this thing, or failing to discourage it in any way, would not come out and try and publically do something about it, or deal with those persons, or remonstrate with them, or something? Not at all. And a number of the judges in the decisions to which we refer have made comment of the fact of what appears to be at the very best no show of contrition on the part of the CFMEU. The person presumably who was providing the instructions to the lawyers in relation to the matter is the person who has the day to day conduct of the union's affairs, which would be
Mr Ravbar.

PN428

He may have been directed by the executive, but he sits on the executive that directs him and he sits on the council that directs the executive to direct him. So, he is sitting at every level of the decision making process. And my learned friend says there is no evidence that that's got anything to do with any of this. So, on that material - - -

PN429

THE DEPUTY PRESIDENT: I can accept the proposition that Mr Ravbar may well fall within the sort of description of the hypothetical sort of cases put in paragraph 27 of the Full Bench decision that we have been referring to, one of the four you tender. That's a case that it's another step to say that those things should be weighed in the balance and would be sufficient not to grant a right of entry permit, isn't it?

PN430

MR HERBERT: No.

PN431

THE DEPUTY PRESIDENT: Because this. I mean, we have to give consideration to what is the purpose of a right of entry permit. I mean, this is not a case about specific breaches of the legislation in relation to those incidents. It is a case about whether Mr Ravbar, admittedly as the branch secretary, qualifies under 512 to get a right of entry permit. The effect of the right of entry permit is to allow – well, it helps the union do its job in that sense. I mean, the other thing I was just going to raise with you is it is interesting that until the 1970s there was no statutory regulation of right of entry basically, I think. In fact, I think one of your submissions sets out some of the history of this quite well, I think.

PN432

And the reason for that was that generally speaking they were dealt with in awards and it is true that there was the development of a sort of case law around why there should be a right of entry. A lot of it related to the role of unions in enforcing awards. So, in one sense the union was looked at as sort of an arm of government to ensure that employers paid people the right wages and conditions. Now, that role has tended to change over the years and then we have had the statutory regime. So, I suppose where I am coming from is I think you just need to look at the way in which the Act works in the context of what a right of entry does now and it isn't so much, it is partially to assist in the enforcement of awards, but I think the reality is that that is less the case than it was 30 years ago because there are other – well, for one thing awards are less important and you have also got the Fair Work Ombudsman having a role to do that.

PN433

So, right of entry is more about the ability for officials to seek to organise workers.

PN434

MR HERBERT: Yes. But there is a very important qualification in that. The way the legislation – because a person who is given a right of entry, the cases say and we have referred to in the submissions, that person is given a right to enter someone else's property without their consent and despite what might be their opposition to them doing that thing. They have the right to actually walk through other peoples' property the way that nobody else case.

PN435

THE DEPUTY PRESIDENT: Not interfering with all the qualifications to that, not interfering with the way in which work is conducted and so on.

PN436

MR HERBERT: Yes.

PN437

THE DEPUTY PRESIDENT: The other thing I was going to say is, I mean, you have also, I think, got to take into account the construction industry, I am just saying you have to weigh all this in the construction industry in the context of what has been occurring for the last seven or eight years, it is well known that there has been a conflict about the legislative regime that is there, about the regulative regime that is there, that the union doesn't accept that, it's opposed it, that may well lead to some instances where there has been a breach of the law. Is that absolutely inconsistent with a right of entry?

PN438

MR HERBERT: Yes. And the reason is that it is effectively a legal regime that applies to all persons in relation to their right of entry, where they are granted a right of entry for the purposes of, as I said before, entering into other peoples' property in circumstances where they are entering into that property and their access to the workforce can, if misused, be very destructive of the interests of the person who owns that property and is conducting that business. Now, if it is used correctly it can have all the social utility to which your Honour refers and that is the object of the exercise. The question really comes down to this: can that person be trusted not to misuse the powers that they have. That is, do they have a fairly deep and abiding respect for compliance with the law.

PN439

Now, not just whether they agree or disagree with the industrial regime, but whether or not they are prepared to comply with the law as the parliament has given to us. And if they are not prepared, if they have got a demonstrated propensity not to comply with the law in general terms, then how does one then say they are a fit and proper person to be released into another person's property in circumstances where they can do some terrible damage if they don't do it by the rules and they don't comply with the restrictions to which your Honour just referred? And that is the whole purpose of the exercise. It is to, in effect, make a potted assessment of the person's character in relation to their respect for the law and their preparedness to comply with the law and ensure the law remains complied with.

PN440

Now, if you have a person, as the Full Bench in Kong said, if you have a person who is managing a union who then, say, allows a cultural lawlessness to develop, then they are demonstrating they do not have respect for the law being complied with at all and that can be a disqualifying factor. Now, the reason why my friend's submissions, apart from the fact they are contrary to at least two Full Bench decisions, when he says that the consideration must be confined to the question of the right of entry and their preparedness to comply with right of entry laws, the MUA Full Bench said that is not true. But in Kong, I think, the Full Bench also said that is far too narrow view of the matter.

PN441

But there was another Full Bench, it may not be Kong, the CEPU matter, I think it is known as to Moody case, they said a similar thing. But the MUA decision in that regard has been adopted by a number of Full Benches already. If you have regard to the matters, your Honour, under 513(1), you must take into account this is the mandatory matters. A number of them have absolutely nothing to do with right of entry per say, or agreement or disagreement with industrial laws. (a) is about training, leaving that to one side, (b) is whether the official has ever been convicted of an offence against an industrial law, that's any industrial law, and (c) whether the official has ever been convicted of an offence against a law of the commonwealth, a state, or a foreign country involving entry onto premises for dishonest, intentional use of violence against another or intentional damage or destruction of property.

PN442

So, crimes against the person in a foreign country are taken to be matters that bear very relevantly on the question of whether a person should be found to be a fit and proper person. Nothing to do with industrial law, nothing even to do with this country. But what it says about the character of the person is they cannot be trusted to comply with the laws, whatever they might be in that place. They might be property laws. You walk through somebody's office on a right of entry going to visit some workers on the other side of the office and you see someone's handbag on the side and you snitch their handbag or their wallet out of their desk. I mean, if you have a level of dishonesty in the person concerned, then giving that person a right of entry, they might be the best industrial officer in the planet, but if they are basically dishonest and likely to steal things, then the person is not fit and proper to be allowed to have a right of entry.

PN443

Now, how can you tell this thing as to whether the person is fit and proper? You look at the way they have conducted themselves in relevant circumstances where the question of their character of their compliance with the law has come up into question. The mandatory requirements here are all circumstances, leaving aside the training for a moment, but all the rest of them are all circumstances in which the question of whether a person has or has not demonstrated a commitment to complying with the law, whatever it might be – a law relating to stealing, violence, property, anything in this country or any other country, they go to the question of the person's fundamental character.

PN444

When they come up against a situation where they have to choose do I comply with the law or do I break the law, a person who has a history of breaking the law, or facilitating the breaking of a law, or encouraging others to break the law, is more likely to make the decision to break a law when pushed to that point. And that is a character clause which disentitles that person to consider to be fit and proper to hold a right of entry permit because when they find themselves in a position where in utilising an entry permit they might be tempted to break a law, they are more likely to do so than somebody who doesn't have that record, so far as the rest of us can tell.

PN445

Because this is an assessment by your Honour. This isn't a lie detector test. It is the best way we can do it, assessing the character of a person by reference to the way they behaved in the past. You have no other test. And the character test of Mr Ravbar assessed by the way he has behaved in the past is that he has controlled effectively a divisional branch of the union where the organisers employed by that union for whom he is responsible and over whom he has significant control in accordance with the rules, and that is the only evidence we have, have been involved in very significant contraventions that have caused them to be fined significant amounts of money and caused his union to be fined a million dollars in a couple of years.

PN446

Now, what does that say about Mr Ravbar's propensity to ensure that the law is complied with? Frankly, if all of those facts are taken to be true, it shows that he has no regard to whether or not the law is complied with and that is quintessentially the reasoning behind a proper conclusion, as was the conclusion in the case of one of his organisers, Mr Pearson, who was refused a permit in the middle of last year and who appealed the Full Bench. The case is in your papers. Mr Pearson was refused on the basis of a number of contraventions that are listed in the cases to which I am about to very quickly take you. Now, Mr Pearson lost his right of entry permit over those matters and it is the case that he engaged in those matters at the behest of Mr Ravbar, as the obvious inference he is or certainly under his tolerance and lack of discouragement. Why is it that
Mr Pearson should lose his right of entry and Mr Ravbar should be treated as being a fit person to keep one or to get another one is the rhetorical question that I ask. And I will, as my friend did, answer it by saying there is no reason.

PN447

Can I take you very quickly then to the cases that I wish to refer you to and I will just scan them quickly because I would recommend bedtime reading for your Honour to skim through them. I'm sure your Honour has a life somewhere else. If I have to read them, you should too.

PN448

THE DEPUTY PRESIDENT: I have more of a life than I used to have, but nonetheless, that's all I can say.

PN449

MR HERBERT: Under tab 15, these are the cases that are referred to. The case is called Hogan. It is a judgement of Burnett J as he more recently was. He was Federal Magistrate Burnett at that time. And it is one of the Jarvis matters that was the subject of a recent Full Bench appeal where the decision of the registrar to grant Mr Jarvis a permit was set aside and the matter was set back.

PN450

THE DEPUTY PRESIDENT: Can I just check, these are all the cases that are referred to in the attachment to your submission, is that right?

PN451

MR HERBERT: Yes. They are all in there, yes.

PN452

THE DEPUTY PRESIDENT: The order that you are going to go through is there?

PN453

MR HERBERT: I have skipped over Wilson, Wilson is the first, and it goes through. I don't know if they are in strict chronological order.

PN454

THE DEPUTY PRESIDENT: Just so I am clear. Your submission of 19 December has got a schedule A and they are all the matters that you say are the subject of penalty. Are they penalties, or damages, or a combination of them?

PN455

MR HERBERT: Penalties. I think there may have been damages in some of them, but we haven't gone to that question. In some cases the penalties have been paid to the employer, but we have given you all those cases here and they are the ones that we selected as being the ones between 2008 and 2011 whilst Mr Ravbar was the secretary and concerning his branch. Firstly, we deal with paragraph 3 of Hogan. The first is one of Jarvis, the most significant of the two first respondents, and the third respondent who was the least significant, that's Te Moho, were both employees and organisers of the CFMEU and were working within the divisional branch of that body.

PN456

So, they were organisers, on the court's findings. And paragraph 6 of the relevant events leading up to the dispute:

PN457

On 26 November Jarvis and Te Moho each entered the project site. The entry by Jarvis and Te Moho was made without either of them giving any entry notice in accordance with section 487 of the Act.

PN458

So, there was a right of entry breach in this matter to both to occupy the site.

PN459

Following entry, Jarvis and Te Moho each spoke with the workers on the project site while they were working.

PN460

And paragraph 8 – I just skim through some of these relevant parts:

PN461

Subsequently, a meeting was held between persons that included Jarvis, Te Moho, and the workers that were referred to. This was at the instigation of and organised by Jarvis and Te Moho who, as is said, was convened for the purpose of talking to the workers at present. As a result, no work was performed during the meeting. Jarvis and Te Moho have told the workers present at the meeting words to the effect that Bovis had gone back on a deal to pay the entitlements to its employees.

PN462

They subsequently went on strike, voted in the meeting to strike, and there were in paragraph 10:

PN463

Industrial action on 26 and 27 November. About approximately 200 worker withdrew their labour. The conduct was unauthorised constituting a breach of the VCII Act and the action amounted to a failure by members of the CFMEU -

PN464

Et cetera:

PN465

- to attend and perform building work within the meaning of the VCII Act.

PN466

Et cetera. Now, his Honour then said at the top of the fifth page of the decision at the end of paragraph 11:

PN467

Jarvis and Te Moho each aided or abetted council procured members of the CFMEU and other employees employed under the project and failed to attend for work on the project until Monday, 30 November 2009. They induced members of the CFMEU to engage in unlawful action. They were directly or indirectly knowingly concerned and/or a party to members of the CFMEU -

PN468

Et cetera:

PN469

- engaging in unlawful industrial action.

PN470

And in paragraph 12:

PN471

Pursuant to 69(1)(b) of that, the CFMEU by the actions of Jarvis and/or Te Moho is taken to have engaged in unlawful industrial action.

PN472

Now, his Honour then went over some subsequent paragraphs, paragraph 18 for example, when he is talking about matters relevant to penalty. And on the third line, at the end of the line:

PN473

The importance of the projects for the people of Queensland, the deliberate nature of the conduct on the occasion in question -

PN474

So, he found that the conduct was deliberate and he took that into account in relation to the imposition and penalty. And then in paragraph 20, two-thirds of the way down the paragraph, I start at the sentence on the fifth line:

PN475

It is fairly inferred from the schedule that, as I submitted, the fourth respondent does have a history of engaging in conduct that brings adverse attention to the courts. And notwithstanding the imposition of significant or at least not-insignificant penalties, it does not appear that penalties imposed have, to date at least, been sufficient to deter it from reengaging in that conduct. As I have noted in the course of the debate with the council, perhaps the union needs to review its enterprise risk management processes in order to do more to bring attention to this form of behaviour to those who manage the union.

PN476

And over the next page at the top:

PN477

Nevertheless, the fact that it has been the respondent in so many similar proceedings indicates there appears to be a failing within the union's own organisation concerning a risk to which the union has put by reason of the conduct of its employees and the general deterrent effects of penalties.

PN478

And again in paragraph 22:

PN479

I note the submission by the applicant the breaches involved deliberate acts. I think that such can be readily inferred from the facts which have been agreed between the parties. Insofar as their involvement of the breaches of concerns, it is plain from the agreed facts that the breaches involved direct intervention by paid officials of the CFMEU who arrived unannounced and who commenced to instigate meetings during work time. I further accept the involvement of the paid employees of the CFMEU as an aggravating factor to take into account and it permits the court to infer that such actions were not isolated while actions were planned and deliberate.

PN480

Now, as you are aware from the Jarvis and Te Moho decisions, in both cases the Full Bench was not persuaded that the registrar had correctly assessed them as being fit and proper persons as he purported to do, or Mr Enwright at least, the delegate, and this matter was one of the matters taken into account in relation to that assessment and they are to be reheard. If one asks again rhetorically how can it be that two paid organisers could turn up and spend a significant part of two days organising and instigating industrial action of this kind, which was subsequently admitted by the union to be in complete contravention of the relevant legislation and in relation to the union agreed to very significant penalties, the amounts of which are set out at the front of that decision, and the penalty against Jarvis was $7260, $3300 to Te Moho, $36,300 to the CFMEU.

PN481

Now, very significant admonishments and warnings from his Honour as to the fact that this particular organisation does not seem to be getting the message and the penalties do not seem to be having the required effect and they really need to look at their organisational structures and the people who manage the union should look to stop this sort of thing occurring. And what we get, the next decision 19 October 2012, the Lend Lease matter, one of the Lend Lease matters, and it involved entry into a number of projects. And on paragraph 13:

PN482

Employees, officials, or organisers of the CFMEU Queensland, Pearson, Vink, O'Doherty, Hammond, Jarvis, and Olson.

PN483

Now, there is also CEPU Mr Malone, but there are six persons identified by her Honour in the Federal Court as being employees, officials, or organisers of the CFMEU and/or CFMEUQ who were all involved in this particular exercise. Her Honour then says at paragraph 19 on the next page:

PN484

The parties have agreed this industrial action was engaged and organised by the CFMEU, the CFMEUQ and/or the CEPU and Messrs Vink, Hammond, Jarvis and Olson and was unlawful industrial action in breach of those provisions of the Act.

PN485

And as appears from three paragraphs above that at paragraph 16:

PN486

In 2011 the CFMEU conducted a campaign called Stop The Sham which is intended to prevent a practice known of sham contracting in the construction industry.

PN487

This industrial action as appears in paragraph 17 occurred on the 18th, 19th, 20th, 21st, 23rd, 24th, 25th, and 26 May 2011 and her Honour then sets out over the next few pages that it was all unlawful industrial action, it is all agreed by the union to be unlawful industrial action, but the parties have agreed in paragraph 19 that it was a union campaign and that it involves six organisers on the ground, or officials on the ground. And the contention would then be made by my learned friend well, we have got no evidence that Mr Ravbar had anything to do with that. What is happening to the person who is organising the itinerary of those organisers when they are out involved in industrial action over that?

PN488

Six of them were involved in industrial action over that period of time. It is simply inconceivable that Mr Ravbar wasn't the person, wasn't fully appraised to what they were doing. And there is no suggestion in these proceedings that the union tried to stop them in any way, shape or form. In fact the union was actually behind the whole claim because in paragraph 40 on page 15 of the decision at the bottom of the page, as her Honour went through the seriousness of the industrial action which she described as:

PN489

Protracted, conspicuously public and co-ordinated across two project sites.

PN490

That is in paragraph 36. In paragraph 40 she said this:

PN491

It is not in dispute that the conduct of the respondents was deliberate in pursuit of general (in the final result in these proceedings) unsubstantiated claims by the unions of sham contracting and in contravention of orders of Fair Work Australia, this is not a case where, for example, the contravention was inadvertent. It is questionable whether the respondents have demonstrated contrition in respect to the contraventions of the legislation.

PN492

On an agreed statement of facts, her Honour adopted that statement and made it very clear that this was a campaign by the union where it used its organisers to go out and cause industrial action to occur. It was planned, it was coordinated, it was public, and it was completely unlawful. Now, when your Honour asked me before where is the evidence that Mr Ravbar has sent these people out to break the law, unless the CFMEU office was empty of officials and Mr Ravbar was away on long service leave in Vanuatu and there were no fines, then there is your evidence. And the CFMEU has not been heard to deny it. They sent their officials out to commit unlawful acts for which they paid very substantial penalties.

PN493

It is in the schedule. It is the third item in the schedule after the submissions. The CFMEU, CFMEUQ and CEPU, $550,000. More than half a million dollars between the three unions, two of whom are jointly and severally liable. But there was half a million dollar with six CFMEU organisers on the ground and one CEPU person. You can probably guess who paid the half a million dollar fine. Pearson was fined $6450 as was Vink. O'Doherty was fined $4300, Hanna $7750, Jarvis $6450, and Olsen $6450. And again that matter against Pearson was instrumental that Mr Pearson was one of the matters against Mr Pearson that resulted in him being refused a new permit and was one of the matters held against Mr Jarvis in the recent proceedings which caused the decision of the registrar to set aside. One of the matters taken into account in respect of which the scheduled rehearing of his matter.

PN494

One has to say at the end of the day there is no prospect that the branch secretary of the organisation that was involved admitted that it was a campaign against the unsubstantiated allegation of sham contracting, as it turned out, that they were not involved in dispatching union organisers, in effect, to behave unlawfully. They subsequently admitted that that is exactly what they had done – in large numbers. Because this wasn't a rogue organiser off on some frolic of his own. This was a carefully calculated event. The next one is under tab 18, again Collier J. There are a number of officials were proceeded against in person, but they were discontinued in this matter.

PN495

But in paragraph 14, if there be any doubt about the matter, the officials who actually conducted themselves, it was agreed, was Patrick O'Doherty and Joseph Miles who are both organisers at the CFMEU and that appears in paragraph 14.

PN496

THE DEPUTY PRESIDENT: I don't think I have paragraph 14.

PN497

MR HERBERT: Sorry? This is under tab 18. I'm sorry, it's been organised so that the orders are in the front.

PN498

THE DEPUTY PRESIDENT: Yes, it's a different order. But this is Collier, tab 18, Collier.

PN499

MR HERBERT: Yes. It's the judgement in page 4. Mr O'Doherty and Mr Miles are both organisers of the CFMEU and this was conduct at a Watpac site on 9 November 2010. At paragraph 17:

PN500

On 9 and 10 November, Mr Peter Ong, Mr Andrew Clark and Mr Edward Bland each entered the QIMR project site -

PN501

Which is another site altogether, but the same day. Mr Clark and Mr Bland were organisers of the CFMEU and Mr Ong was an organiser of the CEPU, but Clark and Bland were CFMEU organisers and they were out on the site at the same time as Mr Miles and Mr O'Doherty were on another site. Again, this isn't a rogue organiser wandering around the place making a nuisance of himself. These are two organisers, one with the CEPU organiser at their elbow arriving on sites at the same day, two different sites on the same day with the same contractor and as appears in paragraph 22, the parties agree that those employees referred to above where council to organise to leave the QIMR project from Clark and Bland, et cetera.

PN502

The relevant actions taken by Messrs Ong, Clark and Bland to coerce Watpac with an intent to apply undue pressure to Watpac to cease to engage contractors that did not have an enterprise agreement with the union to engage contracts that did.

PN503

And then there are further threats that were made. We refer to them at page 7 to compel or force Watpac to do various things. And then on page 8 of the Carrara stadium project, which is a project done on the Gold Coast which is a long way away from the QIMR project, on the same day Mr Te Moho and Mr Jarvis entered the site, they were organisers of the CFMEU, and that's on paragraph 25. At 29 the departure of the workers was cancelled and organised by Mr Te Moho and Mr Jarvis and that is agreed by the parties. Now, again Mr Te Moho and
Mr Jarvis had those events heard against them, the result of which they remain in serious danger of being refused a right of entry permit as one decision has been set aside and there is another hearing in respect of that.

PN504

On page 12 paragraph 5:

PN505

I am satisfied the conduct of those respondents was deliberate and both respondents were aware of the potential legal consequences of their conduct. Neither respondent has demonstrated any contrition for their conduct.

PN506

That is the union respondents. Now, again, a couple of different sites, two people turning up, the same agenda, two organisers turning up, the same agenda, sites hundreds of kilometres apart, at the same time, same date, causing unlawful industrial action agreed by the parties and which was later the subject of very significant penalties. That was a $50,000 fine against the CFMEU. I am sorry, I withdraw that. It is the further one from the bottom, on 9 November 2010, the penalty was imposed on 20 August 2013 and it was $99,000 against the CFMEU, another $100,000 on the clock. But this all happened despite the culture of law abiding behaviour in the CFMEU.

PN507

It is indicative and so on. In light of the time, I won't go any further in relation to those matters other than to tell your Honour that my reading of those cases is that in each case there is a finding to the effect that the offending persons, the persons who actually committed the on the ground contraventions, were organisers of the CFMEU.

PN508

THE DEPUTY PRESIDENT: So I am clear, each of these is a breach of the VCII Act?

PN509

MR HERBERT: Yes. And in some cases multiple breaches over many days. Taking 200 or so workers in some cases off Bechtel's hospital site, for example, off the QIMR, the Queensland Institute for Medical Research, off that site, off the Carrara Stadium site, all of which was agreed before the court by the CFMEU to be unlawful industrial action and action taken with intent to coerce. In the Watpac case, they actually take with the intent to coerce Watpac. Now, all of that would also be a breach of the Fair Work Act, taking industrial action with intent. And also in other cases, in the Hogan case, for example, was taken in contravention of a section 418 order of the Commission.

PN510

So, a significant mix of contraventions when one reads them all, but in each of those cases, as I say, the persons on the ground who did these things were organisers, in one case, in the case of Mr Pearson, he has already been refused a right of entry, in the case of a number of others, Mr Kong's right of entry is subject for judicial review application, as you have heard, to the Federal Court. You asked about the status of that matter before. It has been referred by the Chief Judge of the Federal Court to a Full Bench of the Federal Court at first instance, rather than a single judge, after conferring we are told with the president of the Commission about that.

PN511

So, that matter will, I don't think there will be a hearing about that until towards the middle of the year in relation to that. But Mr Kong's matter is still alive,
Mr Jarvis and Mr Te Moho's matters is, I say while initially successful, have been set aside. Mr Pearson has lost his permit and there is no further appeal, as we understand it, in relation to that matter. And all of those persons have been put into that position as a result of these events and others that are referred to in their various decisions, but events including these events that are referred to in these cases. And again, one asks rhetorically how it would be that these persons who are out there engaging in activities which are all coordinated, two organisers on two or three different sites, all of the same time, all of the same agenda, all the same builder.

PN512

They either dreamed it up themselves and didn't tell Mr Ravbar what they were doing, or they were there with his full knowledge and support and possibly instructions, as far as one can tell. Now, that is a proper inference to be drawn on this evidence that my learned friend said there is no evidence, there is no other conclusion that could sensibly be drawn in light of the way that the rules are structured, in light of the public position that Mr Ravbar has in light of these cases that declare by agreement of the CFMEU what happened. By the CFMEU's own admission, that is the only conclusion able to be drawn and yet the CFMEU offers not a word of explanation of Mr Ravbar other than by way of submission.

PN513

It does not say, and my submission is could not say, that Mr Ravbar wasn't knowingly concerned in these matters in respect of which, as I say, most of these organisers have put their own right of entry permits at risk by conducting themselves in a way which as employees one would imagine if it wasn't tolerated by their employer we wouldn't see them do it two and three times the way one sees in these cases. The first time would have been the last, one would have thought, and of course that hasn't been the case. So, based on that consideration, in my submission, we do have clear evidence that Mr Ravbar does not have the respect for the law that one would expect to find in someone who could be trusted to enter other peoples' premises under the auspices of a right of entry.

PN514

And it does not have to involve him personally contravening, if anything as we put in the submissions, directing other people to contravene, or tolerating other people to contravene, or setting up an environment where they would do that thing is as bad, if not worse, than actually the people who went out and followed orders because that is what they were being paid to do. Now, as if that wasn't enough, can I conclude in relation to the cases with the decision of Commissioner Booth in the Gladstone matter, in the Bechtel matter, because this is one where in effect
Mr Ravbar came out, in my submission, and showed something in the nature of his true colours in respect of the matter.

PN515

Can I refer you to – your Honour is familiar with the case – can I take you to page 18, paragraph 99, which is where the Commissioner commenced her analysis of Mr Ravbar's conduct.

PN516

THE DEPUTY PRESIDENT: Page 17.

PN517

MR HERBERT: I'm sorry.

PN518

THE DEPUTY PRESIDENT: The print I have got it's 17.

PN519

MR HERBERT: Sorry. The print I have got says 18, but it doesn't matter. The paragraph number is 99 and paragraph 100:

PN520

He went to Curtis Island on a private vessel intending to bypass Bechtel's usual entry procedures and contrary to OHS requirements.

PN521

Clear finding of fact. There is a footnote there, 77. So to understand what the Commissioner was referring to, the footnote says:

PN522

Transcript dated 5 September 2012 at paragraph 1962 and the following.

PN523

Under tab 12 we have given you that transcript and if you go to paragraph 1962, which doesn't have pages, it only has paragraphs.

PN524

THE DEPUTY PRESIDENT: I'm on the wrong folder. The white folder, now I'm right. It is in both folders.

PN525

MR HERBERT: Yes. 1962, and this is across Mr Ravbar's evidence, cross-examined by Mr Parry:

PN526

You see, the use of a private boat led you to bypassing the security arrangements, didn't it?---Yes.

PN527

It bypassed the induction process which took place on the mainland?---Yes.

PN528

And indeed, that was in a way the intent, wasn't it, to bypass those procedures?---Yes.

PN529

So, the Commissioner's finding of fact is based on his own admissions on oath in the proceedings. Now, my learned friend says that matter is under appeal and it has been stayed. Well, two things one can say about that. It is hardly likely that a finding of fact based on the direct sworn evidence of Mr Ravbar will be the subject of appeal, and as I read the notice of appeal it is not, nor could it be set aside because that's what he said on oath. That's what he did and why he did it. Now, this is the secretary of a large union who was purported to be on an OH&S investigation and deliberately engaged a private board to get over to Curtis Island with the intent, as he said, of evading and avoiding the security arrangements and the induction arrangements contrary to the OH&S requirements of that site.

PN530

And he took with him about six other persons. The list of them one can deduce from the Commissioner's decision.

PN531

THE DEPUTY PRESIDENT: I think it is pretty clear that they were in Gladstone for a branch council meeting or something like that.

PN532

MR HERBERT: Yes. It doesn't excuse a proper adherence to workplace laws. But the point about it is a clear demonstration by the secretary of the branch how you behave yourself in relation to questions of compliance with the law. Every single one of those five or six persons who went with him would have a clear understanding of what he thought about the law. And this is the example that he is setting for the rest of the branch. Purporting to seek compliance with OH&S regulations and broke two very serious ones just to get onto the site. But the stay of that decision was granted by consent I noticed from the decision we have been handed today by Catanzariti VP.

PN533

And given that the limited term of three months or thereabouts for the revocation of a number of those rights of entry in that case, one would have thought that the period of suspension would have been served before the matter could get on to appeal and would render the appeal largely nugatory because I understand the decision was in September and the appeal was in December and most of the disqualifications would have been served, most of the suspensions would have been served by that time.

PN534

THE DEPUTY PRESIDENT: I thought Mr White said that in the case of
Mr Ravbar, leaving aside the others, that the suspension had been suspended, if you like, so that had as of today had had a right of entry for that period.

PN535

MR HERBERT: Yes. I am addressing the question of why the order might have been stayed and the suspension suspended. Because if you didn't do that, by the time the appeal went on for hearing it would be odious because everybody would have already served their suspension, there would be nothing left fundamentally with most of them.

PN536

THE DEPUTY PRESIDENT: Is it your understanding that if the appeal is dismissed the effect of that with respect to Mr Ravbar would be that his suspension would be then served from the date of that decision being handed down?

PN537

MR HERBERT: Presumably. And the suspension was what would appeal, were he to be granted a new right of entry it would apply presumably to whatever right of entry he had at the time. But the difficulty with that is, and this is why we say that the disclosure principals are so important, that you would be then in a position of making a decision in this matter in circumstances where the question of a suspension of his permit, which is a mandatory matter to be taken into account under section 513, is in the ether. Whether a permit has been suspended or revoked is one of the considerations under 513. Now, the irony of the position might well be that by postponing the matter in that way, I'm not suggesting it was planned that way, but there has been a reward for revocation.

Whilst it has been suspended and may very well be reimposed within a very short time after you are called upon to make a decision in this matter.

PN538

THE DEPUTY PRESIDENT: And as we also know now, he has still got a right of entry with respect to the TRA.

PN539

MR HERBERT: Well, now he has. One wonders, depending on how things go in relation to the suspension, is said to operate in relation to all the permits that he has under the Act because if that was the intention of the Commission, when it is understood that he actually has two.

PN540

THE DEPUTY PRESIDENT: My recollection, I don't know that the Commissioner deals with that question at all.

PN541

MR HERBERT: I assume. I didn't even know about it until you raised it, Deputy President. So, it looks as if from the decision that the matter wasn't drawn to Commissioner booth's attention because if it was, you wouldn't imagine she intended to suspend one and leave the other extant, one would have thought.

PN542

THE DEPUTY PRESIDENT: You weren't doing the case, were you?

PN543

MR HERBERT: No. I missed that one, your Honour. I only miss one a year and that was it.

PN544

THE DEPUTY PRESIDENT: Mr Parry, there you go.

PN545

MR HERBERT: But, your Honour, one would have thought that all of the permits, if he is found to be worthy of having his permit suspended for that period of time when the appeal is dismissed, then all of his permits, one would have thought, would be the subject of the order. Well, you wouldn't suspend one and not the other because the same considerations would apply. So that whilst he might have another one today, he may not if that appeal is dismissed, one would have thought. And the other thing is if it is found that that is a significant enough matter, an application under the permit removal provisions under 515, if I remember correctly, which also require regard to be had to section 513 considerations, it may well be that the suspension of the permit in the circumstances of this matter is such that it warrants the removal of any new permit that might be granted.

PN546

So, I mean, that is all speculation, it is all in the future. But the point, your Honour, for the purposes of these proceedings is this: that there is a finding of fact by Commissioner Booth which is based upon the sworn evidence of Mr Ravbar himself in these proceedings to the effect that Mr Ravbar committed a grievous contravention of OH&S regulations by obtaining the use of a private boat and bypassing the ferry, the inductions, and those other matters referred to in the evidence in order to get onto the site in breach of the OH&S regulations. Now, you are entitled, in my submission, and my learned friend conceded that this case has limited utility. It is not so much the revocation which if the revocation stood you would be required to take into account.

PN547

We would like that to be taken into account, assuming it stands and you would be required to do that, but you are entitled to take into account irrespective of whether the revocation stands or falls, you are entitled to take into account the fact that he has given sworn evidence that he did the things the Commissioner found that he has done in breach of OH&S regulations in what the Commissioner described as something the nature of a stunt. Now, so that in those circumstances what one has is the weightiest kind of circumstantial case one could imagine as to a secretary being responsible for the conduct of each of the persons in each of the cases that we have taken you to in the schedule of our submissions.

PN548

That, in itself, is largely a circumstantial case because we haven't heard him utter the words, but there is no other potential explanation or possible plausible explanation from those circumstances. In addition to that, a confirmation of his attitude to compliance with the law demonstrated by what he told Commissioner Booth he did on Curtis Island. Now, that won't be set aside on appeal. That finding cannot be set aside on appeal. Her reasons for doing what she did, I don't know. I haven't read the case closely enough, or the appeal closely enough. But that particular finding would be untroubled by any conclusion in relation to the appeal because you now have his own sworn evidence that is what he did.

PN549

Now, in my submission you add that factor to all the other cases and all the other persons who have done all that unlawful behaviour and incurred a million dollar worth of fines without apparently being pulled up by Mr Ravbar because they kept going back and doing it again, Te Moho and Jarvis kept popping up in those cases, therefore they were not stopped from doing what they were doing as did
Mr Pearson, then in those circumstances, in my submission, the only possible inference to draw is that Mr Ravbar has an extremely poor regard for compliance with the law and that is the fundamental test in relation to these matters. What is his attitude to compliance with the law. Can we allow him to be trusted, to be let loose on other peoples' property with the privileges that attach to the right of entry permit or not. And very plainly as was the finding in the case of Mr Pearson, he is not.

PN550

Now, all of the other matters that I think we have addressed in our written submissions and I am not going to bore you again with anything further about those matters other than to say that my learned friend's case depends upon one very significant factor, that is his case in opposition of what we put, and that is that the CFMEU elected not to call any evidence that might have cleared the air about Mr Ravbar's true position. And the proper conclusion to be drawn from that is that they could not call that evidence because Mr Ravbar would then be required to explain to the Commission his involvement in organising those matters, or be involved in those matters, or failing to stop them and would have to explain the existence of all of those repeated cases from 2008 to 2011 without there apparently being anybody to stop any of that and how it was he was able to incur a million dollar in fines without taking any serious action against the people who were doing it to his union.

PN551

That would then lead to a positive conclusion in relation to Mr Ravbar. But as I said earlier, the CFMEU has gambled with calling no evidence and, in my submission, they should be found to have lost that gamble and they cannot say that the proper inference to draw from all of that material is that the union is an empty ship without a crew and there is no one inside the union who is responsible for any of these matters, but if there is anybody we cannot suggest that it was
Mr Ravbar when every pointer in the rules points to Mr Ravbar as being the person responsible. For those reasons, in my submission, the application should be refused.

PN552

THE DEPUTY PRESIDENT: Thanks, Mr Herbert. Just one matter. In your written submission, I am just trying to find it, you make reference to the Royal Commission, I think.

PN553

MR HERBERT: Yes.

PN554

THE DEPUTY PRESIDENT: And you indicated that you were going to say something about that. I am not sort of encouraging you to do that.

PN555

MR HERBERT: There's probably something I could say, your Honour.

PN556

THE DEPUTY PRESIDENT: Paragraph 53 it is. I just wondered – yes.

PN557

MR HERBERT: It would be better to say it over there somewhere. Seriously, your Honour, it is the reason why we made that reference in the initial submissions is that the interim report came down the same day the submissions were due. It was not physically possible to read it, absorb it, assess its value, and so we made mention of it and indicated that we would be saying something about it. At the end of the day, the decision was made not to deal with that on the basis that whilst there are some extremely colourful findings about Mr Ravbar, they are at the end of the day opinions expressed by a Royal Commissioner who is not sitting as a court, they do not fit the same category as judicial findings, with the utmost respect of the former Hayden J in relation to his former role as High Court Judge, but he sits at the Royal Commission not as a judge in relation to those matters.

PN558

And rather than cloud the issues that we think are clear enough from the judgements that do exist and go to general character questions about Mr Ravbar and statements about whether he is truthful or not and things of that kind, we have taken the conscious decision not to further that matter. I told my friend about that the other day to relieve him of the necessity of having to crawl through the material.

PN559

THE DEPUTY PRESIDENT: Yes. So, you are not relying on that?

PN560

MR HERBERT: We are not relying on that now. We pointed to it because we thought that we might, but on consideration for the reason I have given we think that the cases, the judicial determinations by consent of the CFMEU as distinct from the process that went on in the Royal Commission, the CFMEU in many cases are not allowed to call evidence, the various kinds of evidence. It is a completely different process to a judicial process and rather than have to go through the explanations of the weight that you should attribute to it, we have left the question on the side. Thank you.

PN561

THE DEPUTY PRESIDENT: Okay, thank you. Mr White, I am in your hands as to what you want to do.

PN562

MR WHITE: I am able to deal with it now if you are prepared to.

PN563

THE DEPUTY PRESIDENT: I mean, it's your call.

PN564

MR WHITE: I am prepared to deal with it now if your Honour is able to continue to sit.

PN565

THE DEPUTY PRESIDENT: Do you want to have a short adjournment for a moment?

PN566

MR WHITE: Yes, that'd be good.

PN567

THE DEPUTY PRESIDENT: Why don't we come back at half past four if that's okay.

<SHORT ADJOURNMENT [4.26PM]
<RESUMED [4.32PM]

PN568

THE DEPUTY PRESIDENT: Mr White.

PN569

MR WHITE: Can I say this. We do not say there is a presumption that applicants are entitled to be given a penalty. The Commission, I think we said in the opening oral submissions, has to be satisfied that the applicant or the person in respect of whom a permit is sought is fit and proper to hold that permit. And the Commission has to be satisfied about that and has to be satisfied on the evidence about that. How the procedural arrangements of the Commission so it being satisfied, had been satisfied generally, or have been arranged, is that an application and a declaration that deals with the matters under 513 is to be put on. That is the evidence. And the Commission, if that application deals, adequate information about the matters that are set out, then the Commission is entitled to be satisfied. I think that is how I put that proposition.

PN570

So, we are not saying the applicant comes here with a presumption that needs to be set aside. In this case, the application of the declaration, we say, satisfy section 513 and the rules and the forms made under the Act. So, on that evidence we say, and I think this is how I put it, the Commission, absent of disentitling a finding, could be satisfied that Mr Ravbar is a fit and proper person to hold a permit and that is why we say the focus then becomes on the validity of the challenge of the matters raised by the director that go to that fitness or propriety. Now, one of the issues that has appeared to spring up between the parties is this. My learned friend has it that because the director has made submissions that there needs somehow then to be – and points to a number of cases which they say support inferences to be drawn that there is somehow a responsibility on the applicant, or
Mr Ravbar, to call evidence.

PN571

Well, you call evidence to meet evidence which is put against you. The six cases that are put against Mr Ravbar can be characterised in this way, we understand. One involved Mr Nesbit and in that case it was found that there was a bit of a rogue action on the part of Mr Nesbit, but nonetheless the union was liable by reason of the ancillary liability provisions. All the other cases can be characterised in this way, that is that there are general matters of concern to the union. One of the matters, a case under tab 15, involves significant and serious and ongoing underpayments. One matter was a case that involved concerns about sham contracting. One involved issue about the engagement of subcontractors and enterprise agreements. That is under tab 18.

PN572

One involved safety concerns, albeit conduct by a particular organiser in relation to safety concerns. The CFMEU, as an active union, does of course form industrial collective views about serious matters that affect the industry in which it represents its members. Those serious concerns can involve questions of underpayment, sham contracting, the scourge of subcontracting that goes on without control, and questions of safety. Now, we are criticised because we don't lead evidence in relation to these cases. Well, all of them except one were resolved by an agreed statement of facts. In none of them did the CFMEU run away from its concerns about the significant industrial matters about the subject of the particular industrial action, the subject of the penalty proceedings.

PN573

No need to call evidence about those matters. The agreed statement of facts and findings of the court are in large part reliant on those agreed statement of facts. When my learned friend then makes the logical leap, or we say the illogical leap, is that the director elides, the legitimate industrial concerns an organisation has and the action taken by it, which given the findings of the court are at least legally not sustainable, with specific responsibility of an individual. That is, my learned friend would have it that the general concern about the capacity to resolve these matters under the current legislative scheme is somehow – and thereafter a general campaign being undertaken by the union – all treated home to a particular individual.

PN574

So, the way that my learned friend expressed that elision is various. A mountain of material concerning the CFMEU's involvement in the breaches. Well, your Honour, you never heard me submit that the CFMEU was not involved in the breaches and we are not going to call evidence to go against the agreed statements of fact to the extent that the CFMEU was involved in those breaches. But then the elision goes connecting Mr Ravbar to those matters. Now, once again, in the submissions made by my learned friend, it is Mr Ravbar's position as secretary which is said to be the moving force in what is otherwise characterised as the campaign by the CFMEU.

PN575

We took you to the rules before that of course Mr Ravbar is subject to the direction and control of the relevant committees. And the cases you have before you, we say, are reflective of concerns of the CFMEU about legitimate industrial issues that arise in its areas of concern. The logic that my friend's submission – sorry. The logical conclusion of my learned friend's submission is that any person who is a member of a deliberative body becomes disentitled to a right of entry permit. So, does all members of the divisional branch committee of management, or all members of the divisional council? These are campaigns which are run by the union and for which the union has taken responsibility.

PN576

We say that is a logical step too far and the reason it is a logical step too far is that there is a illogical illusion between the conduct of the CFMEU and the conduct of
Mr Ravbar and it is the conduct of Mr Ravbar to which the Full Bench draws the specific attention to in that paragraph 27 in Kong.

PN577

THE DEPUTY PRESIDENT: I think it really would be put by Mr Herbert that
Mr Ravbar is in a special position compared to other members of the committee of management because he is the divisional branch secretary.

PN578

MR WHITE: He is in a different position and it may be special in particular ways. But the fact of the matter is he has got one vote. Mr Herbert took you to the rules about the composition of those committees. To the extent that these campaigns are campaigns of the union, then can is say this. In this room, the number of years put together of persons in this room involved in the industrial issues is probably many, and maybe too much.

PN579

THE DEPUTY PRESIDENT: Speak for yourself.

PN580

MR WHITE: But it is not what I know, what you know from your experience, or what Mr Herbert knows or what Mr Herbert suspects which is relevant. It is the evidence which is relevant. Now, true it is Mr Herbert said you can act on your own knowledge, not a problem. Well, there is a problem. The problem is this: you can act on your own knowledge provided that you specify to the parties and provide an opportunity for the parties to either lead evidence, or make comment or submissions about your own knowledge. We understand various backgrounds of various people in this room, but in this case it is not such as to give liberty to approach this matter from some anterior position, but rather we need to look at the evidence.

PN581

Now, my learned friend made a submission that we need to disapprove
Mr Ravbar's involvement. Well, there are the cases, the six cases. We can see what Mr Ravbar's involvement or non-involvement in all of this. And other than once again evidence on the CFMEU campaign, we say the evidence does not go so high as to specifically raise any specific disentitling conduct. Use your own experience, well I made some comments about that. My learned friend says the director does not rely on the history of the CFMEU contravention per say. Well, we are glad to hear that. And in that event, if your Honour please, you should be able to disregard paragraphs 31 to 37 of the general submissions made by the director.

PN582

THE DEPUTY PRESIDENT: These are the ones back last year?

PN583

MR WHITE: Last year, the January submission, paragraph 31. I think my learned instructor points out they pre-date the Full Bench. But whether they
pre-date it or not, my learned friend says they do not rely on it. But the fact of the matter is reliance on it is in those general submissions and they should be paragraphs 31 through to 37, or 36 should be disregarded and paragraph 37(d) and (e) really talk about systemic cultural problems. So, you see for example in paragraph 33:

PN584

Can the CFMEU explain the significant number of contraventions? Has it taken steps? Has the union done anything -

PN585

THE DEPUTY PRESIDENT: I think I might have the wrong submissions.

PN586

MR WHITE: General submissions, your Honour.

PN587

THE DEPUTY PRESIDENT: Yes.

PN588

MR WHITE: So, the specific and general were filed on the same date.

PN589

THE DEPUTY PRESIDENT: Yes, I have got it.

PN590

MR WHITE: And the general ones are longer because they have attached to them a schedule of many more than six contraventions and presumably that schedule is there in support of the general submissions the director makes in paragraph 31. And you will see in fact in paragraph 31 reference is made to annexure A, which is the whole history of contraventions of the CFMEU. Now, we work on my learned friend to say that the director does not rely on the history of the CFMEU other than in the way in which it is engaged by paragraph 27 of Kong and we say that is the issue, that you should disregard those parts of the general submissions which I have identified. And we say you should disregard them in any event by reason of the decision of the Full Bench to which I have taken you earlier.

PN591

When a person makes a declaration in support of an application for a permit, they deal with the matters set out in the form and they deal with the matters that they think are relevant to the discretion of the Commission. Matters relevant to the discretion of the Commission under 513(1)(g) are matters personal to a particular person, so much as in Kong, and it is of course a matter of decision by each person as to what they put in. A duty to disclose really covers up the process which is required and the process which is required is an assessment, of course, by the person making the declaration, not at the last time that he was annoying, or got late to dinner and didn't ring his wife, but the last time or the relevant matters of 513(1)(g) and that involves a personal assessment by the declarant as to what matters are relevant.

PN592

Now, various minds can differ, reasonable minds might even differ, as to what is relevant. But the fact that there is a duty hides what is required and that is an assessment by the declarant as to what is relevant and we say that untested assertions can reasonably be said to be not relevant. I should make the observation that the six matters relied on by my learned friend are over a very short discrete period. He says, well, that doesn't mean there is not going to be more that come out of the woodwork at a later time. But what it does mean is that the Commission is entitled to look at that period of time and then look at the period of time that Mr Ravbar has been an officer of the organisation, which is since 1990.

PN593

As to the matter in Bechtel and the decision of Commissioner Booth, I can only reiterate the caution in my oral submissions this morning to the effect that it was a long case involving significant issues and the Commission in this case, we say, should be very careful to cherry pick extracts from that case, particularly in circumstances where it was clear that there was no question as to findings being made. There is no proper adverse inference to be drawn from the failure of the CFMEU to put on material by the director. The material put on by the material is largely cases in which the CFMEU has admitted involvement and admitted responsibility. There is nothing more about that to be said. It doesn't run away from it.

PN594

Evidence is to rebut material. No material evidence has been put on which required rebutting.

PN595

THE DEPUTY PRESIDENT: Mr Herbert really seems to say in the case of those six cases, there was unauthorised industrial action essentially, there were therefore breaches of the legislation, they happened under Mr Ravbar's watch. That's the link.

PN596

MR WHITE: Yes. See, what he is saying is those are the cases, and you should draw that inference then. So, what is the evidence which we call? Well, the cases are there, or the agreed statement of facts are there. What is in issue are the inferences to be drawn and it is the inferences to be drawn from that evidence and inferences to be drawn from the material. The director contends for a particular inference. Now, we say that inference is not available, but it is the material that we both rely on to make good those propositions. Those are the matters in reply, if the Commission please.

PN597

THE DEPUTY PRESIDENT: Thanks, Mr White. Unless there is anything else, that concludes today. I will issue a decision as soon as I can in this matter. I am conscious of the fact that, leaving aside our complication about the TRA right of entry, Mr Ravbar's right of entry runs out on 15 March. I am conscious of that.

PN598

MR WHITE: Yes. Can you just bear with me.

PN599

THE DEPUTY PRESIDENT: Sure.

PN600

MR WHITE: That's all right, those are our submissions. I have got nothing further.

PN601

THE DEPUTY PRESIDENT: All right, thank you. Thank you for those submissions and the material. I will deliver a decision as soon as I can. Thank you. We are adjourned.

<ADJOURNED INDEFINITELY [4.55PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 STAY ORDER PN167