Application by the United Workers' Union for an entry permit for Shane Reside

[2025] FWC 538

[2025] FWC 538

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512 - Application for a right of entry permit

Application by the United Workers' Union for an entry permit for Shane Reside

(RE2025/70)

VICE PRESIDENT GIBIAN SYDNEY, 21 FEBRUARY 2025

Application for right of entry permit for Shane Andrew Reside – Whether fit and proper person to hold an entry permit under the Fair Work Act (2009) (Cth) – Consideration of the “permit qualification matters” in s 513(1) – Mr Reside found guilty of offence of “enter/remain on major facility” but no conviction recorded – Entry permit issued by Commission after considering offence previously – Commission satisfied Mr Reside is fit and proper person to hold a right of entry permit – Permit issued.

1. On 24 January 2025, Jo-anne Schofield, the National President of the United Workers’ Union (the UWU) filed an application under s 512 of the Fair Work Act 2009 (Cth) (the Act) for a right of entry permit to be issued to Shane Andrew Reside. Mr Reside is employed by the UWU as an organiser.

1. Mr Reside’s current entry permit RE2021/1418 which is held by him for his work with the UWU has not yet expired. Mr Reside is also employed by the MUA as an organiser and was issued an entry permit (RE2024/1004) on application by the MUA in December 2024.[1] Prior to that permit being issued, he had previously held entry permit RE2021/1163 for his work with the MUA.

1. The application by the UWU for a new entry permit discloses that, on 29 August 2024, Mr Reside was found guilty of an offence under s 214A of the Crimes Act 1900 (NSW) relating to enter/remain on major facility, although no conviction was recorded. The same matter was disclosed in the MUA’s application for permit RE2024/1004. In that matter, the MUA filed submissions in support of the application as well as a further statutory declaration by Mr Reside dated 15 November 2024. The UWU relies on those submissions and the statutory declaration in support of their application which is the subject of this decision.

Statutory Provisions

1. Section 512 of the Act provides that the Commission may issue a permit if satisfied that the official is a fit and proper person to hold a right of entry permit. Section 513(1) sets out the “permit qualification matters” which the Commission must take into account in determining whether the official is a fit and proper person. The relevant part of that section is as follows:

513 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.

1. Each of the permit qualification matters listed in s 513(1) must be taken into account and given “proper, genuine and realistic consideration and appropriate weight”.[2] They must be treated as matters of significance in the decision-making process.[3] It is for the decision maker to determine the appropriate weight to be given to each of the matters in assessing whether a person is a fit and proper person to hold an entry permit. I consider each of the permit qualification matters as follows.

Consideration

1. In relation to the permit qualification matter in s 513(1)(a), the application filed by the UWU attached a certificate of attendance awarded to Mr Reside on completion of the Federal Right of Entry Short Course on 8 November 2024. I am satisfied that Mr Reside has received appropriate training about the rights and responsibilities of a permit holder and his training weighs in favour of a finding that he is a fit and proper person to hold an entry permit.

1. With respect to the matters in s 513(1)(b), (d), (e) and (f), the application sets out that Mr Reside has not been convicted of an offence against an industrial law, has not been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by him and has not had any entry permit or work health and safety permit suspended, cancelled or had conditions imposed on it. I am satisfied that none of the circumstances set out in s 513(1)(b), (d), (e) and (f) apply to Mr Reside. The absence of those circumstances weighs in favour of a finding that Mr Reside is a fit and proper person to hold an entry permit.

1. As was set out in my decision in relation to Mr Reside’s permit with the MUA, the description of the incident provided by Mr Reside of the incident which resulted in his conviction for an offence under s 214A of the Crimes Act 1900 (NSW) indicates that the event involved a rally and not entry onto premises for the purposes of s 513(1)(c)(i) of the Act.[4] In any event, no conviction was recorded.[5] As such, I am satisfied that the offence to which Mr Reside plead guilty is not a matter which I am required to take into account by s 513(1)(c).

1. I nonetheless consider that the fact of the conviction is a matter that is capable of rationally affecting the assessment of whether Mr Reside is a fit and proper person to hold an entry permit, and, as a result, I am required to take it into account for the purposes of s 513(1)(g).[6] However, I adhere to the view I formed in dealing with the application made by the MUA with respect to Mr Reside that the offence does not weigh against a finding that he is a fit and proper person to hold an entry permit.

1. The conduct giving rise to the offence took place at a protest rally concerning the conflict in Gaza which took place at Port Botany in Sydney. A total of 19 people were arrested after the police made a direction prohibiting the continuation of the event. In my earlier decision, I recorded that Mr Reside indicates that he did not resist arrest and was not rude or insulting to the arresting police officers and there is no suggestion that Mr Reside’s conduct involved any violence or damage to property.[7] My conclusion with respect to the earlier application was as follows:

[31] In circumstances in which Mr Reside’s attendance at the rally did not directly concern his work as a union official, his attendance arose from altruistic concern for the humanitarian situation in another part of the world, no conviction was recorded arising from his conduct and Mr Reside has expressed his commitment to obeying the law in the future, I do not consider that the offence to which he plead guilty suggests that Mr Reside is not a fit and proper person to hold an entry permit. I have taken the incident into account, but I am satisfied it is a neutral consideration in the overall assessment as to whether Mr Reside is a fit and proper person to hold an entry permit.

1. There are no other matters which I consider relevant to whether Mr Reside is a fit and proper person to hold an entry permit.

Conclusion

1. Having considered all of the permit qualification matters, I am satisfied that Mr Reside is a fit and proper person to hold an entry permit. The application by the UWU for an entry permit for Mr Reside is granted.

1. A permit will be issued separately.

VICE PRESIDENT

[1] Application by Construction, Forestry and Maritime Employees Union – The Maritime Union of Australia Division for an entry permit for Shane Reside [2024] FWC 3409.

[2] Edwards v Giudice (1999) 94 FCR 561 at [5].

[3] Re 4 Yearly Review of Modern Awards — Penalty Rates[2017] FWCFB 1001; (2017) 265 IR 1 at [115].

[4] [2024] FWC 3409 at [20].

[5] [2024] FWC 3409 at [24].

[6] [2024] FWC 3409 at [27].

[7] [2024] FWC 3409 at [28].

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