FEDERAL COURT OF AUSTRALIA

Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56

THE COURT ORDERS THAT:

1.    The Originating Application filed on 13 May 2014 is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

1    There are two questions of statutory construction involved in the present proceeding, namely the correct construction and application of ss 512 and 515 of the Fair Work Act 2009 (Cth) (the “Fair Work Act”).

2    The questions arise by reason of the fact that the Maritime Union of Australia (the “Maritime Union”) unsuccessfully applied for an entry permit to be issued to an Assistant Branch Secretary of the Union, Mr William Tracey. A delegate of the Fair Work Commission (the “Commission”) refused that application on 29 November 2013: The Maritime Union of Australia [2013] FWCD 8459. A Full Bench of the Commission, constituted by two Deputy Presidents and a Commissioner, granted permission to appeal but affirmed the delegate’s decision on 26 March 2014: The Maritime Union of Australia [2014] FWCFB 1973. Mr Tracey was found to be a person who was not a “fit and proper person to hold the entry permit” for the purposes of s 512. It was further concluded that the power to impose conditions pursuant to s 515 could only arise once the Commission satisfied itself that Mr Tracey was a “fit and proper” person.

3    To refuse Mr Tracey an “entry permit” is potentially to prohibit him from properly discharging the functions of an Assistant Branch Secretary. The present decision is thus of personal significance to Mr Tracey; the two questions of statutory construction have much wider significance.

4    Albeit variously expressed, the Maritime Union contends that:

    for the purposes of s 512 the delegate “failed to appreciate the necessary and important link between the assessment of fit and proper, and the purpose for which it is made”. Section 513(1)(b) and (d), it was contended, should be interpreted to refer only to convictions or the imposition of civil penalties which relate to the exercise of right of entry “powers”; convictions or penalties under the Fair Work Act or other “industrial laws” which did not so relate, according to the contention, are irrelevant to the exercise of the power conferred by s 512; and

    s 515 may properly be invoked to impose “conditions” on a person who has been found not to be a “fit and proper person” – it was contended that the section is not confined to the imposition of “conditions” upon a person who has been found to be a “fit and proper” person.

In very summary terms, the former contention is rejected; the latter contention is accepted – but relief is refused on discretionary grounds.

5    These questions of statutory construction come before this Court in its original jurisdiction. An Originating Application dated 13 May 2014 seeks a writ of certiorari quashing both the decision made by the delegate on 29 November 2013 and that of the Commission made on 26 March 2014. A writ of mandamus is also sought to require the Commission to hear and determine the application for an entry permit “according to law”.

The Fair Work Act – rights of entry

6    The Fair Work Act is an Act “relating to workplace relations, and for related purposes”. The object of the Act is set forth in s 3. In very general terms, that “object” is “to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians…”.

7    Sections 512 and 515 appear within Part 3-4 of the Fair Work Act under the heading “Right of Entry”.

8    Division 1 of Part 3-4 is an “Introduction”, including s 480 which provides as follows:

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a)    the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i)    this Act and fair work instruments; and

(ii)    State or Territory OHS laws; and

(b)    the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c)    the right of occupiers of premises and employers to go about their business without undue inconvenience.

Division 2 deals with “Entry rights under this Act”. Within that Division, separate statutory powers are conferred upon a “permit holder” to enter premises (for example) to investigate a suspected contravention of the Act (s 481). An “entry notice” or an “exemption certificate” must specify the suspected contravention. Other provisions confer rights on a permit holder, whilst on premises, to inspect any work relevant to a suspected contravention and to interview persons about a suspected contravention (s 483B). Subdivision B of Division 2 confers upon permit holders a right to enter premises for the purpose of holding discussions with employees. Division 4 deals with prohibitions such as a prohibition upon intentionally hindering or obstructing any person (s 500). Various conditions and limitations on the exercise of entry rights are imposed.

9    Within Part 3-4, Division 6 is headed “Entry permits, entry notices and certificates”. Section 512 confers upon the Commission the power to issue permits. That section is expressed in comparatively simple terms. It provides as follows:

The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.

Section 513 sets forth a variety of considerations which the Commission “must take into account” when deciding whether an official is “a fit and proper person”. That section provides as follows:

Considering application

(1)    In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a)    whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b)    whether the official has ever been convicted of an offence against an industrial law;

(c)    whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i)    entry onto premises; or

(ii)    fraud or dishonesty; or

(iii)    intentional use of violence against another person or intentional damage or destruction of property;

(d)    whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e)    whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f)    whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i)    cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii)    disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g)    any other matters that the FWC considers relevant.

(2)    Despite paragraph 85ZZH(c) of the Crimes Act 1914 , Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Section 514 provides for those circumstances in which the Commission “must not” issue a permit and s 515 confers a statutory discretion upon the Commission to impose conditions on an entry permit. Section 515 provides as follows:

Conditions on entry permit

(1)    The FWC may impose conditions on an entry permit when it is issued.

(2)    In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.

(3)    The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).

(4)    If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.

(5)    To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).

Section 516 provides for when an entry permit is to “expire”.

Fitness and propriety – the constraints in question

10    In concluding that Mr Tracey was not “a fit and proper person”, the delegate’s reasons for decision made reference (inter alia) to:

    offences “against an industrial law” and the fact that he had been ordered to pay penalties: Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232; Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521; and

    the fact that entry permits previously held by Mr Tracey had been revoked: BHP Iron Ore Pty Ltd v Tracey AIRC Print PR905041 (7 June 2001); BHP Billiton Iron Ore Pty Ltd v Tracey, AIRC Print PR924632 (13 November 2002).

The facts and circumstances relevant to each of these decisions were then explored by the delegate. One offence involved Mr Tracey’s conduct in May 2009 in organising a strike contrary to the Workplace Relations Act 1996 (Cth). His conduct was found to be “deliberate”. The other offence occurred in March 2010 and involved workers withdrawing their labour for a period of twenty-four hours. There was said to be no “contrition” on his part in respect to either incident. The two previous instances when Mr Tracey’s entry permits were revoked occurred in June 2001 and November 2002 respectively. On both occasions it was found that Mr Tracey had engaged in “inappropriate” behaviour. In respect to the June 2001 incident, Mr Tracey was found to have “entered the premises of an employer for purposes other than those set out in the [Workplace Relations] Act…”.

11    The primary submission advanced on behalf of the Maritime Union was that the delegate had erred:

    in construing s 512 in a manner that did not confine attention to “fitness and propriety” for the purposes for which the inquiry was directed, namely “fitness and propriety” to hold an “entry permit”. On such an approach, any convictions or penalties in respect to offences or other statutory contraventions having nothing to do with the exercise of powers incidental to an entry permit assumed no relevance.

It was further submitted that the delegate had erred:

    in failing properly to consider matters favouring the grant of an entry permit, namely “Tracey’s clean record in relation to compliance with right of entry laws” and the fact that “Tracey undertook right of entry training in December 2010…”; and

    in failing to consider whether conditions should be imposed pursuant to s 515.

12    It is concluded that no jurisdictional error has been exposed in the reasoning of either the delegate or the Full Bench in its construction of s 512 or in the manner in which it took into account the competing considerations relevant to its deliberations. It is further concluded, however, that jurisdictional error is exposed in the consideration given to whether a condition or conditions could have been imposed pursuant to s 515. But, relief should be refused in the exercise of the Court’s discretion.

Entry permits – the conferral of important rights

13    Although the questions for resolution may be stated simply, it is important to recognise at the outset that Part 3-4 of the Fair Work Act fundamentally modifies common law rights.

14    A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62 thus observed:

The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.

See also: Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 439 to 440 per von Doussa J.

15    Section 480, extracted at [8] above, sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited (1979) 143 CLR 499 at 540 per Mason J.

16    It is thus not surprising that the legislature has confined the category of persons who may be clothed with such powers to those persons who are “fit and proper”.

17    The phrase a “fit and proper person” is used in many different statutory contexts: e.g., Customs Act 1901 (Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase “fit and proper person” by expressly including a reference to whether an individual is of “good fame, integrity and character…”: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:

The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

Fitness and propriety – an inquiry confined to only some convictions & penalties?

18    Senior Counsel for the Maritime Union was correct in his submission that the phrase “fit and proper person” employed in s 512 is confined to an inquiry as to fitness and propriety for the purposes of holding an entry permit. So much would necessarily follow from both an exercise of the power to issue a permit in a manner consistent with furthering the objects set forth in ss 3 and 480 and from the concluding phrase in s 512 itself (“to hold the entry permit”).

19    Nevertheless, with respect, Senior Counsel fell into error in identifying the ambit of those considerations relevant to fitness and propriety. The principal submission advanced on behalf of the Maritime Union is rejected, namely that the only considerations relevant to that assessment were (for example) contraventions, offences, or penalties imposed, in respect to the manner in which rights conferred by an entry permit had been exercised. Contraventions or penalties imposed in respect to other offences created by an “industrial law”, according to this submission, assumed no relevance.

20    This argument is rejected for a number of reasons.

21    First, in the absence of a clearly-expressed legislative intention to the contrary, there is no self-evident reason why the general integrity of an applicant seeking an entry permit should not be taken into account. Separate from the manner in which an applicant may have exceeded the authority conferred by an entry permit or flouted conditions previously imposed upon an entry permit, the general integrity of an applicant may be exposed by his or her general willingness to comply with other common law or statutory requirements. In the absence of clear words to the contrary, there is no self-evident reason why an applicant’s willingness to comply with any “industrial law” may not be relevant to an exercise of power under s 512.

22    Second, the language of s 513(1) supports – rather than denies – the ability of the Commission to take such matters into account. Section 513(1) does not employ language of exclusion. Section 513(1) simply identifies those matters which “must” be taken into account; the sub-section does not provide that other matters may not be taken into account. Indeed, s 513(1)(g) expressly provides that “any other matters that the FWC considers relevant” themselves “must” be taken into account.

23    Third, the width of language employed in provisions such as s 513(1)(b) and (d) run counter to the Maritime Union’s submission. Those provisions state that matters that “must” be taken into account are whether an applicant has “ever been convicted of an offence against a law of the Commonwealth” of the kinds there identified, and whether an applicant has “ever been ordered to pay a penalty under this Act or any other industrial law…”. The phrases “an offence” and “a penalty” are not confined to offences or penalties in respect to the manner in which rights of entry are exercised. The phrase employed in s 513(1)(b) could readily, for example, have otherwise been expressed as “an offence under this Part”, namely that Part of the Fair Work Act dealing with “Right of Entry”, or as “an offence in connection with the exercise of a right of entry against an industrial law”, or similar. And the terms of s 513(1)(d) further emphasise the width of those matters that “must” be taken into account, including the phrases “a penalty under this Act” and “a penalty under … any other industrial law…”.

24    To construe s 513(1)(b) and (d) in the manner of the Maritime Union would run contrary to the long line of authority which cautions against reading words into a statute. “It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do”: Thompson v Goold & Company [1910] AC 409 at 420 per Lord Mersey. See also: JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at [51], (2012) 201 FCR 297 at 310. The submission of the Maritime Union requires reading into those provisions words that qualify the convictions or penalties referred to there as being only those that “pertain to the exercise of rights conferred by an entry permit…”.

25    Contrary to the more generally-expressed submission advanced on behalf of the Maritime Union, the conclusion reached does not result in fitness and propriety being inquired into “at large”. The conclusion simply rejects the limitations advanced on behalf of the Maritime Union; the considerations relevant to that assessment remain those considerations otherwise consistent with the objects and purposes of the Fair Work Act, including ss 3 and 480. Thus, the conclusion that the ambit of those matters that may be taken into account is not constrained in the manner advocated on behalf of the Maritime Union says nothing as to whether jurisdictional error may be exposed by giving unwarranted weight to (for example) a contravention of comparatively minor significance. Contraventions of s 500 of the Fair Work Act may, for example, assume greater importance and assume greater weight in a decision to grant or refuse an entry permit than a contravention of s 193 of the Fair Work Act. But each contravention remains a matter that “must” be taken into account; within limits, the weight to be given to each contravention remains a matter for the Commission.

The other matters taken into account

26    Equally misplaced was the alternative contention advanced on behalf of the Maritime Union, namely that which relates to the manner in which the delegate had (inter alia) dealt with:

    Mr Tracey’s “clean record in relation to compliance with right of entry laws”; and

    the fact that Mr Tracey had undertaken training in respect to right of entry.

The alternative contention was that the delegate failed properly to take such matters into account.

27    When the reasons of both the delegate and the Full Bench are read with an appropriate degree of scrutiny (cf. Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia [2012] FCAFC 114 at [37], (2012) 205 FCR 306 at 315 to 316 per Lander, Flick and Jagot JJ; Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [124], (2014) 141 ALD 540 at 569 per Flick and Perry JJ), those reasons disclose a proper consideration of all matters upon which the Maritime Union relied. They do not disclose any failure properly to understand the task of statutory inquiry being undertaken such that any jurisdictional error is exposed by misconstruing a provision and thereby failing to appreciate the relevance of particular considerations.

28    The competing weight to be given to different considerations remains a matter initially for the delegate: Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 750 per Burchett J. It is generally not for this Court to itself conclude what weight should be given to one matter at the potential expense of another: cf. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Abebe v The Commonwealth of Australia [1999] HCA 14 at [197], (1999) 197 CLR 510 at 580 per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [31] to [37], (2010) 243 CLR 164 at 176 to 177 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

29    The submissions are misplaced because the delegate did in fact consider Mr Tracey’s “good conduct”: [2013] FWCD 8459 at [23]. A decision-maker need not give reasons for the comparative weight given to one fact as opposed to another: Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498 at 503 to 504 per Lockhart J. And the fact that Mr Tracey undertook training was also adverted to and taken into account. A matter of recurring concern to the delegate was the fact that Mr Tracey’s prior contraventions all occurred whilst he was in a “leadership” position. The delegate ultimately concluded:

[66]    While I accept the significance of more than a decade elapsing since Mr Tracey’s previous permit revocations and have taken into account the material contained within the submissions, Mr Tracey’s demonstrable lack of regard for the provisions of industrial legislation by engaging in unlawful industrial action in 2009 and while in a leadership position again in 2010 are in my view, serious matters.

Although the reasons provided by the delegate may have been more fully expressed, the reasons provided do not expose any jurisdictional error.

The imposition of conditions – s 515

30    Jurisdictional error on the part of the delegate and the Full Bench, however, has been exposed in their respective construction and application of the power to impose conditions contained in s 515 of the Fair Work Act.

31    The reasoning of the delegate in respect to s 515 was Delphic. Those reasons recorded the submission as follows:

[15]    In its submissions, the MUA concedes that, given the length of time that has elapsed between the last occasion such training was undertaken by Mr Tracey and the lodgement of the application in this matter “it may be appropriate to make further training a condition of the permit being issued”.

The following conclusion implicitly rejected that submission:

[67]    Having carefully considered all of the available circumstances in this matter and having particular regard to the permit qualification matters for the purposes of s. 512 of the Act, I have concluded that I am not satisfied that Mr Tracey is a “fit and proper person” and accordingly, I must refuse the application to issue a permit.

The reasoning of the Full Bench was more explicit. The Full Bench concluded that the power to impose conditions was enlivened only once a conclusion had been reached that a person was a fit and proper person. The reasoning of the Full Bench thus stated in part as follows:

[43]    It is firstly to be observed that the exercise of the power to impose a condition on an entry permit when it is issued is discretionary. Secondly, an entry permit will only be issued if the Commission is satisfied that the officer of the applicant for a permit is a fit and proper person to hold an entry permit. If the Commission is not satisfied that the officer is a fit and proper person to hold an entry permit, there is no power in s.512 to issue the permit. It must follow that the question of whether the Commission will impose a condition on an entry permit when it is issued will arise only after the Commission is first satisfied that the officer of the applicant for a permit is a fit and proper person to hold the permit.

[44]    As s.512 makes clear, entry permits may only be issued to a person whom the Commission is satisfied is a fit and proper person to hold an entry permit. It would undermine the legislative intent that underpins s.512 if a person who is assessed as not being a fit and proper person to hold an entry permit could nevertheless be issued with such a permit merely by the imposition of conditions. The power to impose a condition under s.512 seems to us to be exercisable usually after the Commission is satisfied that a relevant official is a fit and proper person to hold an entry permit but there is some concern, for example about the past conduct of the official having regard to the permit qualification requirements in s.513(1), which falls short of rendering that official unsuitable to hold an entry permit. It may also be the case that in an appropriate application the question whether a person is a fit and proper person to hold an entry permit is very finely balanced and the imposition of a condition might tip the balance in favour of the level of satisfaction required.

32    With respect to the Full Bench, its approach to the construction of s 515 was erroneous. First, the construction failed to pay sufficient attention to the text of the provision. The text of s 515(1) (“when [an entry permit] is issued”) stands in contradistinction to that of s 515(4) (“after it has been issued”), suggesting that s 515(1) contemplates consideration of whether conditions should be imposed conjointly with consideration of whether the official for whom the permit is sought is a “fit and proper person to hold the entry permit”.

33    Second, the Full Bench’s concern that it would “undermine the legislative intent that underpins s.512 if a person who is assessed as not being a fit and proper person to hold an entry permit could nevertheless be issued with such a permit merely by the imposition of conditions”, begs the question as to the nature of the assessment required by s 512.

34    At [25], the Full Bench correctly stated that the question of whether an official is a fit and proper person to hold a permit will necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. The Full Bench went on to state that “[t]hese are all to be found in Part 3-4 of the Act”. It is here that the Full Bench, with respect, fell into error. Certainly, some limitations and conditions are found within the Fair Work Act: a requirement to give notice of an intended entry is one example (s 487); a requirement that a permit holder exercising a right of entry does not “intentionally hinder or obstruct any person, or otherwise act in an improper manner” is another (s 500). However, the conditions that are specificially set forth in the Act need not be exhaustive, because the Commission is empowered by s 515 to impose others.

35    Once it is recognised that the assessment of fitness and propriety is to be made by reference to all of the applicable conditions upon the exercise of rights conferred by the grant of a particular permit, including any imposed under s 515, there is no undermining of legislative intent as the Full Bench suggested. This construction of s 515 is to be preferred, as it is consistent with the discernible legislative intent to provide the Commission with a capacity to facilitate the balance contemplated by s 480 and, regarding the imposition of conditions, to do so harmoniously both in relation to the grant of a permit and the Commission’s supervision of its subsequent use (see ss 505(2), 505A(3)(a), 507(1) and 508(2)).

36    This preferred construction of s 515 also avoids the tension inherent in the alternative construction. It would be surprising if the legislature intended that, having just determined that a person is a fit and proper person to hold an entry permit by reference to the matters set out in s 513(1), the Commission should as a second step impose further conditions on the permit directed to the same considerations (s 515(2)). In each of the two examples given by the Full Bench at [44] as to when such a two-step process might arise, there is a question as to whether the first step (satisfaction as to fitness and propriety) was properly reached. The examples relied upon by the Full Bench to support its contrary construction of s 515, with respect, are not persuasive.

37    Reference was also made to observations made by the Full Court in Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23, (2009) 175 FCR 201. The construction of a particular statutory provision must, of course, be dictated by the terms of the text of the legislation in question, and the observations which follow were made about a different statutory scheme. Nevertheless, the observations made are illustrative of the preferred approach in the present case.

38    Section 152AT(4) and (5) of the Trade Practices Act 1974 (Cth) there provided as follows:

(4)    The Commission must not make an order under para (3)(a) unless the Commission is satisfied that the making of the order will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.

(5)    An order under para (3)(a) may be unconditional or subject to such conditions or limitations as are specified in the order.

Jacobson, Lander and Foster JJ at 228 concluded:

[147] Another matter which arose on this application and which was argued before the Tribunal was the effect of s 152AT(5). As has already been observed, the Tribunal did not consider whether it could impose conditions or limitations so as to allow it to reach the satisfaction required by s 152AT(4) because it was not satisfied that the making of the orders exempting Telstra would promote the LTIE.

[148] Mr O’Bryan contended that s 152AT(5) had no part to play unless the ACCC (or the Tribunal on review) was of the opinion that the making of the order will promote the LTIE or, if not of that certain opinion, at a point near to being of that opinion. He was not able to articulate the point at which s 152AT(5) would engage, save that the ACCC must reach some sort of prima facie opinion that an order exempting would promote the LTIE but has unarticulated reservations.

[149] We cannot accept that contention. The purpose of s 152AT(5) is to give the ACCC a tool to fashion the appropriate conditions and limitations when it thinks that the application by the carrier or carriage service provider for an order exempting that carrier or carriage service provider ought to be made. The purpose of s 152AT(5) is to allow the ACCC to fashion appropriate conditions and limitations which would go towards promoting the LTIE.

[150] In our opinion, it cannot be said that there is some threshold that must be reached by the applicant before the question of conditions or limitations arises. As we have already noted, the ACCC is not constrained to either grant or refuse the application. What the ACCC must do on an application is to consider whether it should make an order of the kind in s 152AT(4) and, in doing so, must at all times keep in mind whether the order could be made if appropriate conditions and limitations were imposed.

39    Notwithstanding the error in construction on the part of the delegate and the Full Bench, the relief sought by the Maritime Union should nevertheless be refused in the exercise of the Court’s discretion for the following two reasons.

40    First, before the delegate the Maritime Union did not advance a submission as to the ambit of the power conferred by s 515 or as to its proper application to any permit issued to Mr Tracey.

41    Second, it was common ground between the parties that it remains open to the Maritime Union to make a fresh application for an entry permit for Mr Tracey. Although the principal submission advanced on behalf of the Maritime Union on the limited construction of ss 512 and 513 has been rejected, the consideration of any such fresh application would differ from that in the instant case insofar as, in accordance with these reasons, the consideration of a fresh application would take into account the power to impose conditions under s 515 without the need for Mr Tracey to first be found a “fit and proper” person.

CONCLUSIONS

42    When deciding whether to issue an entry permit pursuant to s 512 of the Fair Work Act, those considerations relevant to the exercise of the power are not confined (for example) to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the decision-maker – at least initially. The prospect remains for judicial review founded upon (for example) alleged “unreasonableness”.

43    Both the delegate and the Full Bench have, with respect, misconstrued s 515 of the Fair Work Act. Conditions may be imposed pursuant to that section to remedy or address deficiencies or reservations in respect to an officer of an applicant, which deficiencies or reservations could otherwise lead to the conclusion that the person was not “fit and proper”.

44    Relief should nevertheless be refused in the exercise of the Court’s discretion.

THE ORDERS OF THE COURT ARE:

1.    The Originating Application filed on 13 May 2014 is dismissed.

Associate:

Dated:    29 April 2015