Australian Education Union-ACT Branch

[2014] FWCD 1430

[2014] FWCD 1430 [Note: a correction has been issued to this document]

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit
Australian Education Union
(RE2013/1213)
MR ENRIGHT	MELBOURNE, 6 AUGUST 2014
Application for a right of entry permit
Background

[1] On 28 June 2013, an application under s.512 of the Fair Work Act 2009 (the Act) dated 20 June 2013 was lodged at the Fair Work Commission (the Commission) by the ACT Branch of Australian Education Union (the Branch) for a permit to enter and inspect premises for the following official:

Glenn Fowler: RE2013/1213

[2] The application in this matter was supported by declarations from the relevant Committee of Management member Mr Roger Amey dated 20 June 2013 and the proposed permit holder Mr Fowler, dated 20 June 2013 (the declarations). Mr Amey is the Branch Vice President of the AEU-ACT Branch and Mr Fowler is the Secretary of the ACT Branch.

[3] In June 2013 and prior to lodgement of the application, telephone inquiries had been conducted by the Branch with the Commission to ascertain the process for Mr Fowler to obtain a new right of entry permit. The Branch was provided with general procedural advice about the process and specific further advice that in the circumstance of Mr Fowler’s previously issued permit [RE2007/3090] having expired two (2) years and ten (10) months prior, a number of steps would be required, including the return of the expired permit.

[4] On 29 July 2013, after lodgement of the application, Commission staff contacted Mr Fowler again advising that he was required to return his previously issued permit [RE2007/3090] together with a statutory declaration stating the reason for the late return of permit and whether or not he had entered workplaces without a valid permit.

[5] On 19 August 2013 the Commission received a statutory declaration (the first statutory declaration) by Mr Fowler. Mr Fowler included in his statutory declaration that he had been issued with an entry permit on 6 December 2007 which would have expired on 6 December 2010 and that because of the introduction of the Fair Work Act 2009, he undertook Federal [2014] FWCD 1430

Right of Entry training on 4 November 2009. Mr Fowler attached the ACTU training certificate issued on 4 November 2009 to his statutory declaration.

[6] Mr Fowler also included in his statutory declaration that ‘due to an administrative

error this [the ACTU training] Certificate was filed and not forwarded to Fair Work
Commission so no new permit was issued’.

[7] Mr Fowler included in his statutory declaration that he ‘was of the understanding this Certificate expired in November 2012 and that I was covered to enter workplaces’. While he did not explain any reason for forming his erroneous understanding, Mr Fowler was indicating that he understood that at least until 2012, the ACTU training certificate provided him with the same right of entry powers under the Fair Work Act 2009 as an entry permit.

[8] Mr Fowler further included in his statutory declaration that it was not until June 2013

that it was brought to his attention that he did not have a current entry permit which caused
him to undertake new right of entry training on 14 June 2013.

[9] On 11 December 2013 the Commission wrote to Mr Fowler requesting a second statutory declaration which would include; whether or not he understood specified obligations regarding entry onto premises; that he proposed to meet the requirements of the Act when entering premises; and that he would in future, ensure the return of his permit within 7 days of expiry in accordance with s 517 of the Fair Work Act 2009.

[10] On 3 February 2014 the Commission received a second statutory declaration (the second statutory declaration) by Mr Fowler dated 20 December 2013. In his second statutory declaration, Mr Fowler declared that; he understood that the Certificate of Completion of training provides evidence of training and is not a substitute for a right of entry permit; that the branch must apply for the issue of a right of entry permit and that it is a requirement for him to carry a valid permit and a copy of the entry notice when entering premises; he understood it is his obligation to give notice when entering premises; that he would meet the requirements of the Act when entering premises; and that would return the permit within 7 days of expiry.

Legislative framework

[11] Under s.512 of the Act, the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a ‘fit and proper person’ to hold an entry permit. In deciding this, the Commission must take into account the ‘permit qualification matters’ set out in s.513(1).

[12]      Section 513(1) of the Act is set out below:

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;

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(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.

[13] Sections 512–513 are within Part 3–4 of the Act, entitled ‘Right of Entry’. The objects of Part 3–4 are set out at s.480:

480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

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(b) the right of employees to receive, at work, information and representation

from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business
without undue inconvenience.

[14] In Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[1], Delegate Nassios made the following observations

[1][2011] FWAD 3518.

regarding the objects of Part 3–4 of the Act with respect to an application for an entry permit:

[21] The objects of Part 3-4 are set out in section 480 of the Act. The object of right of

entry provisions is to establish a framework for officials of organisations to enter premises while balancing competing rights of organisations, employees and occupiers/employers. Organisations have the right to represent their members in the workplace, to hold discussions and to investigate suspected contraventions of relevant laws. Balanced against these rights are the rights of occupiers and employers ‘to go about their business without undue inconvenience’. The objects set out in section 480 of the Act emphasise the mutual rights and responsibilities of participants in the system in much the same way as the objects under the Workplace Relations Act 1996. Earlier decisions regarding the granting of right of entry permits under the Workplace Relations Act 1996 have made reference to the ‘important contextual issue’ of the nature of the power that is exercised by permit holders. In Vivienne Daniels v Joe Patti & Anor, Munro J observed that:

Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility, and avoidance of unnecessary obstruction in the exercise of the powers under Division 11A are not only to be expected, they are a statutory condition of the powers being retained.

The observations of Munro J apply equally to the granting of right of entry permits

under the legislative regime set out in the Fair Work Act 2009.[2](endnotes omitted)

[2]Ibid at [21].

[15] Although I am not bound by the above views I find they are a useful context for considering an application for an entry permit.

Permit Qualification Matters

[16] Section 512 of the Act provides that, upon application by an organisation, the Commission may issue an entry permit to an official of that organisation if it is satisfied that the official is a ‘fit and proper person to hold the entry permit’. Thus, the task of the Commission in the present matter is to consider and determine whether Mr Fowler is a ‘fit and proper person’ not in a universal sense entirely divorced from any context but specifically whether he is a ‘fit and proper person’ to hold an entry permit. As observed by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond:

The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging

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in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides an indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.[3]

[3]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380

[17] Therefore, the determination of whether a particular official is a ‘fit and proper person’ to hold an entry permit for the purposes of section 512 of the Act is required to be made by having regard to the nature of the statutory right of entry powers potentially provided to the official pursuant to Part 3-4 of the Act, the activities that the official will be engaged in when exercising such powers and the ends to be served by such activities. As the Full Bench of the Commission in The Maritime Union of Australia observed:

The question of whether an officer is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. These are all to be found in Part 3-4 of the Act.[4]

[4]The Maritime Union of Australia [2014] FWCFB 1973 at [25].

[18] Section 513(1) of the Act provides that, in order to make the primary determination required to be made pursuant to s. 512 of the Act, the Commission must take into account the ‘permit qualification matters’ listed at paragraphs (a) to (g) therein. Although several of those matters do not directly relate to statutory right of entry powers, the Commission is bound to take them into account and apply them in a manner that assists the Commission in determining whether a particular official is a ‘fit and proper person’ to hold an entry permit.

[19] I will consider each of the ‘permit qualification matters’ separately below as they pertain to the current matter before me.

Training about rights and responsibilities

[20] Section 513(1)(a) of the Act requires me to take into account whether Mr Fowler has received appropriate training about the rights and responsibilities of a permit holder. The declarations of both Mr Amey and Mr Fowler state that Mr Fowler undertook such training. A copy of Mr Fowler’s Certificate of Achievement of approved training dated 14 June 2013 was provided with the application. The content of the training material was approved by the then Fair Work Australia on 6 October 2009.

[21]      This matter will be further considered later in this decision.

Conviction/s against an industrial law

[22] Section 513(1)(b) of the Act requires me to take into account whether Mr Fowler has ever been convicted of an offence against an industrial law. The declarations do not disclose any such convictions against Mr Fowler. There is no other evidence before me that suggests otherwise.

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Conviction/s involving entry onto premises, fraud, dishonesty or intentional use of violence

[23] Section 513(1)(c) of the Act requires me to take into account whether Mr Fowler has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. The declarations do not disclose any such orders against Mr Fowler. There is no other evidence before me that suggests otherwise.

Order/s to pay a penalty under an industrial law in relation to action taken by the official

[24] Section 513(1)(d) of the Act requires me take into account whether Mr Fowler, or any other person, has ever been ordered to pay a penalty under the Act or any other industrial law, in relation to action taken by the prospective permit holding official. The declarations do not disclose any such orders against Mr Fowler. There is no other evidence before me that suggests otherwise.

Permit/s revoked, suspended or made subject to conditions under Commonwealth law

[25] Section 513(1)(e) of the Act requires me to take into account whether a permit issued to Mr Fowler under Part 3–4 of the Act, or under a similar law of the Commonwealth (no matter when in force), has been revoked, suspended or made subject to conditions. The declarations do not disclose that any such permits issued to Mr Fowler having ever been revoked, suspended or made subject to conditions. There is no other evidence before me that suggests otherwise.

Right of entry revoked, suspended or made subject to conditions or a disqualification imposed under State or Territory industrial law or State or Territory OHS law

[26] Section 513(1)(f) of the Act requires me to take into account whether a court, or other person or body, under a State or Territory industrial law or State or Territory occupational health and safety (OHS) law has cancelled, suspended or imposed conditions on a right of entry for industrial or OHS purposes that Mr Fowler had under that law or disqualified Mr Fowler from exercising, or applying for, a right of entry for industrial or OHS purposes under that law. The declarations do not disclose any cancellation, suspension or imposition of conditions on a right of entry Mr Fowler has held for industrial or OHS purposes by any court, or other person or body, under a State or Territory industrial law or an OHS law. Further, the declarations do not disclose that Mr Fowler has been disqualified by any court, or other person or body, under a State or Territory industrial law or an OHS law, from exercising, or applying for, a right of entry for industrial or OHS purposes. There is no other evidence before me that suggests otherwise.

Any other matters that the Commission considers relevant

[27] Section 513(1)(g) provides the Commission with a broad discretion to take into account any other matters it considers relevant. This discretion is limited to a consideration of matters that pertain to a proposed permit holder’s status as a ‘fit and proper person’ to hold an entry permit.

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[28] The proper construction should be determined by examining the provision in the context of the Act as a whole and the specific considerations set out in subsections 513(1)(a)- (f) of the Act in particular in the sense that such matters must fall within the purview of relevance delineated by the subject, scope and purpose of the Act, particularly Part 3-4 of the Act.[5]Relevant considerations in this regard include whether a particular matter has an industrial or OHS ‘flavour’ or context, the extent to which it raises issues analogous to the considerations set out in subsections 513(1)(a)-(f) of the Act and its pertinence to the exercise of the public right associated with the exercise of statutory right of entry powers pursuant to Part 3-4 of the Act.

[5]Santos Ltd v Saunders (1988) 49 SASR 556.

[29] I have taken into account that Mr Fowler had a senior leadership position of Acting Branch Secretary on 29 March 2012 and was elected as Secretary of the Branch on 12 November 2012 when he became responsible and accountable for the management of right of entry permits at the Branch.

[30] I have taken into account Mr Fowler’s concessions that he was not aware that he was required to return his entry permit to the Commission within 7 days of expiry, that he was not aware that he was required to carry an entry permit when exercising rights under an entry permit and that he failed to return his expired permit until twice requested by Commission staff. I consider these to be relevant matters as they indicate either a lack of understanding of or disregard for his obligations under the Act as a permit holder.

[31] In addition I have taken into consideration the objects of Part 3–4 of the Act, in particular the rights of registered organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions, the rights of employees to receive information and representation from officials of such organisations, and the rights of occupiers of premises and employers to go about their businesses without undue inconvenience.

Training about rights and responsibilities

[32] As noted above, the most recent training undertaken by Mr Fowler regarding the rights and responsibilities of permit holders occurred on 14 June 2013. That training was delivered by the Australian Council of Trade Unions (ACTU) and has previously been approved by the then Fair Work Australia, for the purposes of satisfying the permit qualification matter set out in subsection 513(1)(a) of the Act.

[33] Subsection 513(1)(a) of the Act refers to ‘appropriate training’ specifically regarding the ‘rights and responsibilities of a permit holder’. Given the erroneous understandings articulated by Mr Fowler in relation to various rights and responsibilities of permit holders and in the event I determine that Mr Fowler is a fit and proper person to hold a permit, I will require Mr Fowler to undertake fresh training to ensure he has an appropriate understanding of permit holders’ rights and responsibilities.

Leadership role of Mr Fowler

[34] I consider the senior leadership role of Mr Fowler to be a relevant matter for the purposes of subsection 513(1)(g) of the Act. As I have noted in previous decisions[6]voluminous research narrative and commentary is available on the concept of leadership and the criticality of its importance in influencing followers.

[6]The Maritime Union of Australia [2013] FWCD 8458 at [51]

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[35] It appears from Commission records that Mr Fowler had a senior leadership position of Acting Branch Secretary on 29 March 2012 when the Branch lodged the Annual Return of Information as required by the Act. He was elected as Secretary of the Branch on 12 November 2012 which is a position responsible and accountable for the management of right of entry permits at the Branch.

[36] Mr Fowler’s first statutory declaration includes that while his entry permit expired on 6 December 2010 it was not until June 2013 that it was brought to his attention that he did not have a current entry permit. For at least a substantial part of that period, Mr Fowler held either the acting or substantial position of Branch Secretary.

[37] I have had cause to consider the implications of circumstances in which the senior person responsible and accountable for the management of the entry permit system at the Branch does not or did not understand the rights and responsibilities of permit holders. Those circumstances include that for a period of more than 2 years, Mr Fowler was not aware that his permit had expired, not aware that he was required to surrender the expired permit and erroneously considered throughout the period that completion of the ACTU training course provided him with the statutory rights of a permit holder.

[38]      These circumstances are of serious concern.

Objects of Part 3-4 of the Act

[39] In exercising my discretion under s.512 of the Act to determine whether or not to issue an entry permit to Mr Fowler, I have also considered the objects of Part 3-4 of the Act.

[40] In this regard, I have taken into account the role Mr Fowler performs as an official of the AEU and the importance of holding an entry permit in fulfilling that role in terms of holding discussions with employees and members, investigating suspected contraventions and ensuring workplace health and safety.

Consideration

[41] My task in the present matter is to determine whether Mr Fowler is a “fit and proper person” to hold the entry permit for which application is made taking into account the nature of the powers that are bestowed pursuant to the grant of such a permit within the statutory regime set out in Part 3-4 of the Act, the activities that he will potentially be engaged in when exercising such powers and the ends to be served by such activities. In order to make this determination, I must take into account the “permit qualification matters” set out in paragraphs (a) to (g) of section 513(1) of the Act. Those matters are to be taken into account and applied in a way that assists me in determining whether Mr Fowler is a “fit and proper person to hold the entry permit”.

[42] The issues referred to in the application raise particular concerns regarding the permit qualification matters set out in paragraph (g) of section 513(1) of the Act.

[43] Mr Fowler’s previously issued permit was issued on 6 December 2007 and expired on 6 December 2010. This expired permit was returned on 19 August 2013 as a result of two requests by Commission staff two years and 10 months after it had expired. Mr Fowler, in his

[2014] FWCD 1430

first statutory declaration, declared that he was of the understanding that the ACTU training Certificate of Achievement issued on 4 November 2009 expired in November 2012 and that having completed that training, the certificate entitled him statutory rights in general and the right to enter workplaces in particular.

[44] Mr Fowler’s failure to return his expired permit within the statutory timeframe and his lack of understanding about the requirement to actually hold a valid entry permit in order to exercise entry powers clearly indicate a significantly flawed understanding about the rights and responsibilities of permit holders.

[45] The significance of Mr Fowler’s significantly flawed understanding about the right of entry regime in general and the rights and obligations of permit holders in particular, is even more concerning in the circumstance that he took on the role of Acting Branch Secretary on 29 March 2012 and was elected to Branch Secretary on 12 November 2012.

[46] It is fundamental to the proper management of the right of entry system that senior leaders in employee organisations who apply for entry permits both for other members and, as is the case here, for themselves, actually understand both the rights and responsibilities of permit holders. Based on Mr Fowler’s own account, the circumstances of this application demonstrated that he does not appear to have clearly understood either the rights or responsibilities of permit holders.

[47] On the one hand, the circumstances of this application give rise to concerns about

whether Mr Fowler is a fit and proper person to hold an entry permit because he does not, or
did not, understand the rights and responsibilities of a permit holder as required by the Act.

[48] On the other hand, I have taken into account that Mr Fowler undertook fresh training

on 14 June 2013 and that in his subsequent and second statutory declaration, Mr Fowler
declared that:

 the training Certificate of Completion provides evidence that he has undertaken appropriate training and it is not a substitute for a right of entry permit;

	the Branch must apply to the Fair Work Commission for the issue of a right of entry permit under s.512 of the Fair Work Act 2009;
	it is his obligation to give notice when entering premises;
	it is a requirement under the Act that he carry his valid permit and copy of the entry notice when entering premises.

[49]      I have also taken into account that Mr Fowler also declared that:

	he will meet the requirements of the Act when entering premises; and
	he will return the permit within 7 days of expiry.

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Conclusion

[50] I have carefully considered all of the available circumstances of this matter and have had particular regard to the permit qualification matters for the purposes of s 512 of the Act.

[51] I have had particular regard to the lack of any adverse findings made against Mr Fowler regarding the permit qualification matters set out in paragraphs (b), (c), (d), (e) and (f) of the Act, the length of time that has elapsed since this application was made and his important role to the AEU membership as a senior leader of that organisation.

[52] I have had further and particular regard to the explicit declarations by Mr Fowler which rectify his previous erroneous understandings about the rights and responsibilities of permit holders and in all the circumstances it appears unlikely that he would continue to contravene the requirements of the Act.

[53] On balance, I find that Mr Fowler is a ‘fit and proper person’, taking into account the

permit qualification matters, for the purpose of s.512 of the Act and accordingly, I will issue a
permit.

[54] However, for the reasons provided above and the circumstance that it has been more

than a year since he participated in relevant training, I require Mr Fowler to first undertake
new appropriate training prior to the issue of a new permit.

[55] Once the requirement for new and appropriate training has been met, and presuming no other matters that are relevant to my consideration of the permit qualification matters arise

in the meantime, I will grant a right of entry permit to Mr Fowler.

DELEGATE OF THE FAIR WORK COMMISSION

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