Applications by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for a right of entry permit to be issued to Mr Frederick Emil Barbin and Mr...
[2019] FWC 6355
•18 SEPTEMBER 2019
| [2019] FWC 6355 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.512 - Applications for a right of entry permit
Applications by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for a right of entry permit to be issued to Mr Frederick Emil Barbin and Mr Antony John Stegic
(RE2019/757)
(RE2019/726)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 18 SEPTEMBER 2019 |
Application for right of entry permits for Frederick Emil Barbin and Antony John Stegic; satisfied that Mr Barbin and Mr Stegic are fit and proper persons to hold entry permits; applications granted; permits to issue
[1] This decision deals with two applications for right of entry permits.
[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of right of entry permits to its officials, Mr Frederick Emil Barbin (RE2019/757) and Mr Antony John Stegic (RE2019/726).
[3] On 9 September 2019, the Australian Building and Construction Commissioner (Commissioner) advised that he does not wish to be heard on either application. In the circumstances I have decided to determine both matters on the papers.
Relevant statutory provisions and application
[4] 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 and purposes; and
• Any other matters that the Commission considers relevant.
[5] 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.
[6] 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.
[7] 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.
[8] 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
[9] 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
[10] 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.
[11] I turn to consider the applications.
Consideration
Mr Barbin
[12] Mr Barbin has held a previous right of entry permit which has expired. He returned the expired permit on 19 August 2019.
[13] He is employed as an organiser.
Permit qualification matters – s.513(1)(a), (b), (c), (d), (e) and (f)
[14] According to the declarations filed by the CEPU in support of the application for the grant of a permit to Mr Barbin (the Declarations):
• Mr Barbin 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 29 July 2019 (s.513(1)(a) of the Act); 8
• Mr Barbin has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act); 9
• Mr Barbin 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; 10
• Neither Mr Barbin 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)
• Mr Barbin 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); 11
• Mr Barbin has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Barbin 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); 12 and
• Mr Barbin 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). 13
[15] 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 Barbin is a fit and proper person to hold a right of entry permit.
Permit qualification matters – s.513(1)(g)
[16] A search of the Commonwealth Courts Portal shows that Mr Barbin is a named respondent in a matter regarding the potential breach of general protections, NSD478/2019. This matter is before the Federal Court of Australia and is scheduled for a Case Management Hearing on 11 October 2019.
[17] As there have been no findings in this matter I will not take this into account in determining whether Mr Barbin is a fit and proper person to hold an entry permit. Any allegations made against Mr Barbin in the proceeding have not been tested. It is now well settled that generally, pending proceedings are not to be taken into consideration when deciding whether a candidate is a fit and proper person to hold an entry permit 14.
[18] There are no other matters of which I am aware which are relevant and which weigh against the conclusion that Mr Barbin is a fit and proper person to hold an entry permit.
Mr Stegic
[19] Mr Stegic has held a previous right of entry permit which has expired. He returned the permit on 4 June 2019.
[20] He is employed as an organiser.
Permit qualification matters – s.513(1)(a), (b), (c), (d), (e) and (f)
[21] According to the declarations filed by the CEPU in support of the application for the grant of a permit to Mr Stegic (the Declarations):
• Mr Stegic 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 3 June 2019 (s.513(1)(a) of the Act); 15
• Mr Stegic has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act); 16
• Mr Stegic 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; 17
• Neither Mr Stegic 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)
• Mr Stegic 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); 18
• Mr Stegic has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Stegic 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); 19 and
• Mr Stegic 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). 20
[22] 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 Stegic is a fit and proper person to hold a right of entry permit.
Permit qualification matters – s.513(1)(g)
[23] A search of the Commonwealth Courts Portal shows that Mr Stegic is a named respondent in a matter regarding the potential breach of general protections, NSD478/2019. This matter is before the Federal Court of Australia and is scheduled for a Case Management Hearing on 11 October 2019.
[24] The propositions at [17] above apply equally to Mr Stegic.
[25] There are no other matters, of which I am aware that are relevant and which weigh against a conclusion that Mr Stegic is a fit and proper person to hold an entry permit under the Act.
Conclusion
[26] I have already noted the permit qualification matters which weigh in favour of a conclusion that Mr Barbin and Mr Stegic are fit and proper persons to hold right of entry permits under the Act. None of the permit qualification matters weigh against such a conclusion.
[27] Taking into account the permit qualification matters and for the reasons stated, I am satisfied that Mr Barbin and Mr Stegic are fit and proper persons to hold a permit.
[28] The permits will be separately issued.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR712331>
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 Leclee 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 Form F42, Declaration by proposed permit holder dated 6 August 2019 at (a) and Attachment ‘ACTU Statement of Completion’
9 Ibid at (b)
10 Ibid at (c)
11 Ibid at (e)
12 Ibid at (f)
13 Ibid at (g)
14 Application by the Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit to be issued to Mr Michael Ravbar [2018] FWC 2377
15 Form F42, Declaration by proposed permit holder dated 6 August 2019 at (a) and Attachment ‘ACTU Statement of Completion’
16 Ibid at (b)
17 Ibid at (c)
18 Ibid at (e)
19 Ibid at (f)
20 Ibid at (g)
0
14
0