Application by the Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit to be issued to Mr Arturo Noel Menon

[2019] FWC 7491

[2019] FWC 7491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Application by the Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit to be issued to Mr Arturo Noel Menon
(RE2019/1011)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 1 NOVEMBER 2019

Application for a right of entry permit for Arturo Noel Menon.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Mr Arturo Noel Menon.

[2] On 29 October 2019, the Australian Building and Construction Commissioner (ABCC) advised the Commission that he did not wish to be heard in relation to the application. In the circumstances, I have decided to determine the application on the papers without holding a hearing.

Relevant statutory provisions and application

[3] Subdivision A, Division 6 of Part 3–4 of the Act contains provisions dealing relevantly with issuing entry permits to officials of registered organisations. Section 512 of the Act provides that the Commission may, on application, issue a right of entry permit to an official of an organisation if it is satisfied that the official is a fit and proper person to hold the entry permit. Section 513 of the Act contains a number of matters described as permit qualification matters that the Commission must take into account in deciding whether an official is a fit and proper person to hold an entry permit. The matters are:

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

•  whether the official has ever been convicted of an offence against an industrial law;

•  whether the official has ever been convicted of an offence against a Federal, State/Territory or foreign law involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property;

•  whether the official or any other person has even been ordered to pay a penalty under the Act or other industrial law in relation to the action taken by the official;

•  whether a permit issued to the official under the Act or similar law of the Commonwealth has been revoked, suspended or made subject to conditions;

•  whether a court or other person or body under State/Territory law or OHS law has cancelled, suspended or imposed conditions on a permit for industrial or OHS purposes or disqualified the official from exercising or applying for a right of entry for industrial or OHS purposes; and

•  any other matters that the Commission considers relevant.

[4] Section 514 of the Act restricts the Commission’s power to issue a right of entry permit at a time when a suspension or disqualification imposed by a court or other person or body applies to the official’s exercise of or prevents the official from exercising or applying for a right of entry for industrial or OHS purposes under a State/Territory industrial or OHS law.

[5] Section 515 of the Act gives the Commission power to impose a condition on a right of entry permit when it is issued and in deciding whether to do so, the Commission must take into account the permit qualification matters to which earlier reference has been made.

[6]  The operation of these provisions and their application is now well settled. In previous decisions I summarised the relevant principles and without repetition I adopt what is therein said. 1 In short compass however, the assessment of whether an official of an organisation is a fit and proper person to hold an entry permit requires taking into account the permit qualification matters set out in s.513 of the Act considered in the context of the rights the holder of an entry permit may exercise under the Act, the limitations on and conditions attaching to the exercise of those rights and the responsibilities that must be exercised in respect of those rights.

[7] A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend), 2  that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision making process.3 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:4

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant”. 5

[8] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend: 6 

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".” 7

[9] Having regard to the structure and content of s.513, in deciding whether an official of a registered organisation is a fit and proper person to hold an entry permit, all of the permit qualification matters identified in s.513(1) of the Act must be taken into account. The absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment, just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight.

[10] I turn to consider the application.

Consideration

[11] Mr Menon has held several entry permits previously and currently holds an entry permit which is due to expire on 17 November 2019. 8 That permit was issued with no conditions.

Permit qualification matters – s.513(1)(a), (b), (c), (d), (e) and (f)

[12] According to the declarations filed by the CFMMEU in support of the application for the grant of a permit to Mr Menon (the Declarations):

•  Mr Menon has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 24 September 2019 (s.513(1)(a) of the Act)); 9

•  Mr Menon has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act); 10

•  Mr Menon has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act; 11

•  Neither Mr Menon nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him (s.513(1)(d) of the Act); 12

•  Mr Menon has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s.513(1)(e) of the Act); 13

•  Mr Menon has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Menon held under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(i) of the Act); 14 and

•  Mr Menon has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(ii) of the Act). 15

[13] I accept that this information as disclosed in the Declarations concerning these matters is accurate and correct. These matters all weigh in favour of a conclusion that Mr Menon is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s.513(1)(g)

[14] In the Declarations lodged in support of the application for a permit, Mr Menon and the CFMMEU have disclosed that Mr Menon was a respondent in Geofabrics Australasia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union and Ors 16(Geofabrics) however no orders were made against Mr Menon or the union and the application was dismissed. Further, they have disclosed that Mr Menon is a respondent in a proceeding in the Federal Court of Australia brought by the ABCC17 and Mr Menon has admitted contraventions of s.500 of the Act. The matter is fixed to be heard in relation to the penalty to be imposed on 13 December 2019.

[15] While it is appropriate that the matter has been disclosed in the Declarations, as there was no adverse finding against Mr Menon in Geofabrics, I will not take this into account in determining whether Mr Menon is a fit and proper person to hold an entry permit.

[16] As a penalty has yet to be imposed on Mr Menon in the Federal Court proceeding, the admitted contravention is not to be considered under s.513(d) but rather under s.513(g). The matter disclosed in relation to contravening conduct is not assessed at large but in context. The question is not whether Mr Menon is a fit and proper person per se, but rather the assessment of the matter in deciding whether Mr Menon is a fit and proper person to hold a right of entry permit occurs having regard to the attendant rights and obligations that flow from the issue of such a permit. In relation to what this says about Mr Menon’s fitness and proprietary to hold an entry permit, it says that he engaged in conduct in serious disregard for the Act. The admission of the contravening conduct in the circumstances raises issues about Mr Menon’s understanding of the rights when entering a workplace. Against this is to balance the fact the Mr Menon has undertaken appropriate training about the rights and obligations of a permit holder under the Act, he has admitted to the contraventions and there is no evident repetition of the conduct. Further, a finding of a contravention has not yet been made by the Court and as such consideration of the admitted contravening conduct is premature. In these circumstances, the matter does not weigh heavily against a conclusion that Mr Menon is a fit and proper person to hold an entry permit. However, it must be noted that if a penalty is imposed on Mr Menon or the CFMMEU by reason of his contravening conduct, as the contravention would be of s.500, there will likely be a further proceeding in relation to any entry permit I now issue, under s.510 of the Act.

Conclusion

[17] Taking in account the permit qualification matters, for the reasons stated I am satisfied that Arturo Noel Menon is a fit and proper person to hold an entry permit.

[18] A permit will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR713853>

 1   See for example [2017] FWC 666 at [4]–[8]

 2 (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

 3   See Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

 4 (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at [103]

 5 (1987) 16 FCR 167 at 184

 6 [1986] HCA 40; (1986) 162 CLR 24

 7   Ibid at [15], pp.39-41

 8   RE2016/1511

 9   Form F42, Declaration by proposed permit holder dated 14 October 2019 at (a) and Attachment ‘CFMEU QLD/NT Certificate of Achievement’

 10   Ibid at (b)

 11   Ibid at (c)

 12   Ibid at (d)

 13   Ibid at (e)

 14   Ibid at (f)

 15   Ibid at (g)

 16   [2018] FWC 6521

 17   NTD1/2019