The CFMMEU has failed in its appeal against a decision of the Fair Work Commission in a Federal entry permit case involving its former WA division president Walter Molina.
On 18 August 2021, the Fair Work Commission refused to renew Mr Molina’s entry permit.
At the time, the ABCC Commissioner, Stephen McBurney, intervened in the proceeding to argue Mr Molina was not a fit and proper person to hold a federal entry permit.
In opposing the renewal of Mr Molina’s federal entry permit, Commissioner McBurney pointed to the history of contraventions of the Western Australian division of the CFMMEU and Mr Molina’s own contraventions of industrial laws.
The CFMMEU filed an appeal against the decision to refuse Mr Molina’s application for a permit.
In rejecting the CFMMEU’s appeal, the Full Bench of the Fair Work Commission emphasised the ramifications of the union’s decision to not call Mr Molina to give evidence, or to explain his reasons for contravening the Fair Work Act.
The Full Bench noted:
Mr Molina obtained a conditional entry permit in 2018 largely because he persuaded the Commission, via his sworn evidence, that he had “learned his lesson” and was committed to compliance with the law in the future. Having obtained that entry permit on 25 May 2018, he then engaged in a “moderately serious” contravention of the BCIIP Act before seven months had passed. Beyond the contravention itself, which involved the organisation of unlawful industrial action and was relevant to Mr Molina’s general integrity and willingness to comply with the law … was the fact that the contravention was in breach of the commitment given to the Commission in the 2018 proceedings.
This was a matter which, in the current proceedings, cried out for an explanation from Mr Molina. However, the CFMMEU chose not to call Mr Molina to give evidence for this purpose, notwithstanding the Deputy President’s express invitation to do so, and as a result the Deputy President was afforded no explanation or even any expression of remorse for what had occurred. Nor did Mr Molina renew his commitment to comply with the law in the future.
The Deputy President’s conclusion, on the basis of these matters, that Mr Molina was not a fit and proper person to hold an entry permit was legally rational and reasonably available.
In 2018, the Fair Work Commission imposed conditions on Mr Molina’s permit, including that he undertake training approved by the Commission in relation to emotional management.
Since the ABCC was re-established on 2 December 2016 the WA CFMMEU and its officials have had penalties totalling $776,600 imposed for contraventions of industrial laws. The total figure for Western Australia alone, including predecessor agencies to the ABCC, stands at $1.778 million (including penalties for contempt of court).
In commenting on the Full Bench’s decision ABCC Commissioner Stephen McBurney said right of entry provisions provide important rights and protections for all building industry participants and the laws must be respected by them, whether they are a union official, an employer or occupier.
“When permit holders repeatedly break the law and fail to abide by the important legal obligations enshrined in the Fair Work Act, we will pursue all available legal avenues. We are committed to addressing unlawful conduct, investigating and litigating contraventions, and seeking appropriate penalties,” Mr McBurney said.
“As regulator, we have a statutory mandate to ensure appropriate standards of conduct apply. This is why I will continue to challenge the issue and renewal of federal right of entry permits for permit holders who fail the fit and proper person test.”
A list of union officials who do not hold a valid federal entry permit, or have conditions imposed on their federal entry permit, can be found on the ABCC’s website.