Australasian Meat Industry Employees Union, The South and Western Australian Branch

[2021] FWC 2775

[2021] FWC 2775

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Australasian Meat Industry Employees Union, The South and Western Australian Branch
(RE2021/401)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 20 MAY 2021

Application for a right of entry permit for Debra Kaylene Kennedy – whether fit and proper person to hold an entry permit under the Act – satisfied that Ms Kennedy is a fit and proper person to hold a permit – permit issued.

[1] The Australasian Meat Industry Employees Union, The South and Western Australian Branch (AMIEU) 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, Ms Debra Kaylene Kennedy. Ms Kennedy is employed by the AMIEU as an Organiser.

Relevant statutory provisions and application

[2] The applicable principles for determining right of entry permit applications under s.512 are 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.¹ 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.

[3] 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),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

[4] 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

[5] 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.

[6] 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.

[7] I turn to consider the application.

Consideration

[8] In support of its application the AMIEU filed declarations by Ms Kennedy and Ms Sharra Leagh Anderson, AMIEU Branch Secretary (the Declarations).

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

[10] According to the Declarations:

Ms Kennedy 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 March 2021 (s.513(1)(a) of the Act));⁸

Ms Kennedy has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);⁹

Ms Kennedy 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 Ms Kennedy 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 her (s.513(1)(d) of the Act);11

Ms Kennedy 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);12

Ms Kennedy has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Ms Kennedy 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);13 and

Ms Kennedy 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).14

[11] I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. These matters weigh in favour of a conclusion that Ms Kennedy is a fit and proper person to hold a right of entry permit.

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

[12] Ms Kennedy disclosed in a statutory declaration filed with the application the late return of her previous permit and that she purported to exercise right of entry after it expired. 15 Ms Kennedy’s previous permit expired on 16 March 2021. By way of explanation Ms Kennedy declares that upon receiving her previous permit she immediately put a reminder in her electronic diary to ensure she returned it in time, however accidentally entered 26 March 2021 instead of 16 March 2021. Ms Kennedy declared that she realised her error in the week starting 22 March 2021 and immediately took steps to return her expired permit which was received by the Commission on 30 March 2021. Ms Kennedy declared that exercising her right of entry after her permit expired was not a deliberate act and that she will be more vigilant in the future.

[13] Ms Kennedy’s entry to a workplace after the expiry of her entry permit purporting to exercise entry rights as a permit holder and the failure to return the expired permit on time weigh against a conclusion that she is a fit a proper person to hold an entry permit. Ms Kennedy was not authorised to enter premises when she did and likely breached s.503(1) of the Act (which is a civil remedy provision) in the process, in that she entered the workplace, and at the very least was reckless, as to whether she was giving the impression that the entry was authorised by Part 3-4 of the Act, when it was not. A permit holder is necessarily required to carry her or his permit when exercising entry right, so that it may be produced on request by an occupier of the premises entered or an affected employer (s.497). Ms Kennedy’s failure to return the expired permit to the Commission within the time prescribed is also likely to be a contravention of s.517(1)(c) of the Act (also a civil remedy provision). These are serious matters to be weighed in the balance. Ms Kennedy’s suggested inadvertence as to the expiry of her entry permit and her subsequent exercise of right of entry is a matter which appears to me to have been careless and quite possibly reckless. The entry permit which Ms Kennedy was bound to carry with her when exercising entry rights under the Act bears its issue date and requires little effort thereafter to work out its expiry date. The period of its operation is set out in the third paragraph (3 years beginning on the date of issue) and a note at the bottom of the permit reminds the holder of the obligation to return the permit within 7 days after it expires. Nonetheless although these matters weigh against a conclusion that Ms Kennedy is a fit and proper person to hold an entry permit, Ms Kennedy’s prompt action on realising her mistake to return her right of entry permit, her disclosure of the conduct and her indication that she will be more vigilant in the future ameliorate the seriousness of the conduct or at least the weight that should be ascribed. Overall, I do not consider that these matters weigh so heavily as to tip the balance against a conclusion that Ms Kennedy is a fit and proper person to hold an entry permit.

Conclusion

[14] Taking into account the permit qualification matters, for the reasons earlier stated I am satisfied that Ms Debra Kaylene Kennedy is a fit and proper person to hold an entry permit. The application by the AMIEU for an entry permit to be issued to Ms Kennedy is granted.

[15] A permit will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR729861>

1 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]

² [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]

³ 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 Construction, Forestry, Mining and Energy Union v Hamberger and Another (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], p 41

8 Form F42, Declaration by proposed permit holder dated 7 April 2021 at (a) and ACTU, Statement of completion

9 Ibid at (b)

10 Ibid at (c)

11 Ibid at (d)

12 Ibid at (e)

13 Ibid at (f)

14 Ibid at (g)

 15   Statutory Declaration of Ms Debra Kaylene Kennedy dated 22 April 2021