Application by the Transport Workers’ Union of Australia

[2020] FWC 4565

[2020] FWC 4565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Application by the Transport Workers’ Union of Australia
(RE2020/625)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 31 AUGUST 2020

Application for a right of entry permit for Michael Marcos Pieri – whether fit and proper person to hold an entry permit under the Act – satisfied that Mr Pieri is a fit and proper person to hold a permit – permit issued.

[1] The Transport Workers’ Union of Australia (TWU) 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 Michael Marcos Pieri. Mr Pieri currently holds the office of Assistant State Secretary of the New South Wales branch of the TWU.

[2] Mr Pieri’s current permit will expire on 31 August 2020. 1

Relevant statutory provisions and application

[3] The applicable principles for determining right of entry permit applications under s.512 are now well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder the subject of an application for a permit is assessed taking into account the permit qualification matters set out in s.513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in someabstract sense. The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit, and to exercise the powers, functions and responsibilities attached to holding a permit. 2 The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.

[4] The permit qualification matters contained in s.513(1) are mandatory considerations which must be taken into account and each given appropriate weight. 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), 3 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.4 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:5

“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”. 6

[5] 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: 7

“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".” 8

[6] Having regard to the structure and content of s.513, in deciding whether a proposed permit holder 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.

[7] Section 513(1)(g) of the Act requires the Commission to take into account any other matter it considers relevant. A matter will be relevant if it can rationally affect the assessment of whether the proposed permit holder is a fit and proper person to hold an entry permit. Matters that may be relevant and therefore fall to be considered under s.513(1)(g) are matters that relate to the personal characteristics of the proposed permit holder and are pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.

[8] I turn to consider the application.

Consideration

[9] On 13 May 2011, Mr Pieri was found by the Federal Court of Australia to have contravened s.494 of the Workplace Relations Act 1996 inQantas Airways Limited v Transport Workers’ Union of Australia & Others. 9 On 22 July 2011, a penalty of $2,500 was imposed on Mr Pieri in respect of that contravention and a further penalty of $20,000 was imposed on the TWU in respect of the conduct of Mr Pieri and other officials.

[10] In support of its application, the TWU filed declarations by Mr Pieri and Mr Richard Olsen, State Secretary of the TWU New South Wales Branch, in conjunction with the application (Declarations). However, in the Declarations, Mr Pieri and Mr Olsen both declared relevantly that Mr Pieri “has never been ordered to pay a penalty under the Fair Work Act 2009 or any other industrial law in relation to action taken by the proposed permit holder and nor has any other person been ordered to pay a penalty in respect of such action.”

[11] On 17 August 2020, in correspondence to my Chambers, the TWU indicated that the omissions were unintentional. In the circumstances, I invited the TWU to file an amended application together with an explanation setting out how it came to be that they made false declarations. On 24 August 2020, the TWU filed amended declarations by Mr Pieri and Mr Olsen (Amended Declarations).

[12] In filling the Amended Declarations, the TWU apologised for the oversight and disclosed, inter alia, that the applications are prepared by an official who is delegated to search the TWU’s internal records as well as Federal Court judgments and Commission decisions and orders. Mr Pieri’s internal record was incomplete, in so far as it did not include information relating to the relevant penalty issue. In searching Federal Court judgments, the TWU official mistakenly searched only under the “case name” rather than a “full text search” which resulted in the relevant judgments and orders not being caught in the search as Mr Pieri was the third Respondent in those matters. At the time of signing the Declarations, it did not occur to Mr Pieri that an oversight had been made.

[13] As previously mentioned, Mr Pieri currently holds an entry permit that is due to expire on 31 August 2020. That permit was issued with no conditions and the declarations lodged in that matter disclosed the penalty imposed on Mr Pieri in Qantas Airways.

[14] In the circumstances, I am satisfied that the omission was inadvertent and was not intended to mislead the Commission.

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

[15] According to the Amended Declarations:

•  Mr Pieri 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 15 July 2020 (s.513(1)(a) of the Act)); 10 

•  Mr Pieri has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act); 11

•  Mr Pieri 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; 12

•  Mr Pieri 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 Pieri has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Pieri 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 Pieri 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

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

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

[17] The Amended Declarations disclose that:

•  Mr Pieri was ordered to pay a penalty of $2,500 for contravening s.494(1) of the Workplace Relations Act 1996. 16

•  The TWU was ordered to pay a penalty of $20,000 in respect of its contravention of s.494(1) of the Workplace Relations Act 1996. 17

[18] These matters have been considered in previous decisions in relation to the granting of Mr Pieri a right of entry permit. 18 They were not then assessed as weighing so heavily as to determine that Mr Pieri was not a fit and proper person to hold an entry permit.

[19] The TWU submits that these matters do not render the proposed permit holder not a fit and proper person.

[20] While these matters are plainly relevant, I am satisfied that significant weight should not be given to them. While the conduct was unlawful, it occurred a considerable time ago and there has been no reoccurrence of this conduct.

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

[21] There are no other matters of which I am aware that I consider relevant to the determination of whether Mr Pieri is a fit and proper person to hold an entry permit.

Conclusion

[22] Taking in account the permit qualification matters, for the reasons earlier stated I am satisfied that Mr Michael Marcos Pieri is a fit and proper person to hold an entry permit. The application by the TWU for an entry permit to be issued to Mr Pieri is granted.

[23] A permit will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR722231>

 1   RE2017/970

 2   Maritime Union of Australia [2014] FWCFB 1973 at [23]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, [2015] FWC 1522 at [32]

 3 [1986] HCA 40, (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 cited in Hasim v Attorney-General of the

Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

 4   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

 5 (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 Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74

at [103]

 6 (1987) 16 FCR 167 at 184

 7 [1986] HCA 40, (1986) 162 CLR 24

 8   Ibid at [15], p 41

 9 [2011] FCA 470

 10   Form F42, declaration by proposed permit holder dated 24 August 2020 at (a) and ‘ACTU Statement of completion’.

 11   Ibid at (b)

 12   Ibid at (c)

 13   Ibid at (e)

 14   Ibid at (f)

 15   Ibid at (g)

 16 [2011] FCA 816

 17   Ibid

 18   [2012] FWAD 9835