13 July 2015CFMEU officials' permit applications refused

The Fair Work Commission has refused to grant CFMEU officials Timothy Jarvis and Andrew TeMoho Federal right of entry permits because they are not “fit and proper person(s) to hold an entry permit”. A Fair Work Commission delegate issued entry permits to Mr Jarvis and Mr TeMoho, both from Queensland, in June of last year. FWBC successfully appealed the decisions and their permits were revoked. The entry permit applications were then referred to Deputy President Gostencnik for rehearing. Deputy President Gostencnik yesterday refused their applications.

In his decision, Deputy President Gostencnik listed four cases where the courts had fined Mr Jarvis and the CFMEU as a result of Mr Jarvis’ conduct. The cases related to unlawful industrial action and coercion. Mr Jarvis was fined a total of $13,710 and the CFMEU $735,300 in the four cases.

“There is no evidence from Jarvis that he will not engage in similar action in pursuit of, for example, industry-wide campaigns advocated by his employer, the CFMEU,” Deputy President Gostencnik said. “Apart from recently undertaking right of entry training, no other evidence is offered that the CFMEU as the employer of Jarvis, has taken any step to counsel, advise, discipline or train Jarvis about his conduct which led to the imposition of penalties on him and upon the CFMEU.”

Deputy President Gostencnik ruled out granting Mr Jarvis a permit on the condition that he be required to report any “findings, penalties or proceedings” which may affect his permit within two weeks. “This is akin to locking the stable gates after the horse has bolted,” Deputy President Gostencnik said.

In his decision, Deputy President Gostencnik listed two cases where Mr TeMoho and the CFMEU were fined as a result of Mr TeMoho’s conduct. One case related to unlawful industrial action, and the other to coercion. Mr TeMoho was fined $3,300 and the CFMEU $135,300 in total in the cases. Deputy President Gostencnik noted the court found the conduct “in each case observed was planned and deliberate” and that “There is no indication from TeMoho of any contrition or remorse or any indication that he will not engage in action of the kind that led to the imposition of the penalties…” “There is no indication that he has learned his lesson and will not engage in similar conduct again.”

The initial right of entry permit application made to the Fair Work Commission for Mr TeMoho did not disclose the penalties imposed against him or the CFMEU. Deputy President Gostencnik said “the original application contained erroneous statements by him, and which did not disclose his previous conduct.”

In statements filed with the Fair Work Commission Mr TeMoho provided different explanations for the non-disclosure stating he was “not aware the CFMEU was required to pay a penalty”, that the application had been “prepared by office staff” and he had no “specific recollection of signing the application”.

“The conflicting explanations raise serious questions about whether TeMoho knowingly signed or authorised an erroneous declaration or whether it was mere inadvertence.” “Absent an explanation from TeMoho, I agree with the Director’s submission that TeMoho’s conduct surrounding the applications and his dealings with the Commission are disingenuous...it speaks to the level of honesty and integrity,” Deputy President Gostencnik said. Deputy President Gostencnik said he had questions which “remain unanswered” because neither of the men chose to attend before him and give evidence.

“Holding a right of entry permit is a privilege,” FWBC Director Nigel Hadgkiss said. “This agency will not hesitate to make submissions to the Fair Work Commission regarding a permit application if we have evidence that person is not a fit and proper person to hold a permit.” Mr Jarvis and Mr TeMoho are on FWBC’s ‘No Permit List’. The No Permit List is a list of people who do not hold a valid federal right of entry permit. Some of them have a history of attempting to enter building sites without valid permits. If someone on the No Permit List enters your worksite, you should call the police and report the matter to FWBC. There are currently 28 people on FWBC’s No Permit List, 26 of them are CFMEU officials.  

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