Australian Municipal, Administrative, Clerical and Services Union-Queensland (Services and Northern Administrative) Branch

[2016] FWC 7845

[2016] FWC 7845

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit

Australian Municipal, Administrative, Clerical and Services Union-Queensland (Services and Northern Administrative) Branch
(RE2016/1127)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 28 OCTOBER 2016

Application for right of entry permit - Louise Ryan.

[1] On 15 August 2016 an application was lodged for a right of entry permit for Ms Louise Ryan.

[2] The application is by the Australian Municipal, Administrative, Clerical and Service Union-Queensland (Services and Northern Administrative) Branch (ASU). Ms Ryan is an organiser of the Queensland (Services and Northern Administrative) Branch (the Branch). She held a right of entry permit issued on 23 August 2013. She has been an official for three years.

Legislative Provisions

[3] Under s.512 of the Fair Work Act 2009 (the Act), the Fair Work Commission (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).

[4] 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;

(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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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.”

[5] 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

(b) the right of employees and TCF award workers 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.”

Compliance with ss.512 and 513

[6] The application was signed by Neil Henderson, the Secretary of the Branch. Attached to the application is a declaration by Mr Henderson that Ms Ryan satisfies the “fit and proper person” test as required by s.512. The declaration addresses each of the “permit qualifications matters” set out in s.513(1) of the Fair Work Act 2009 (the Act). Ms Ryan’s declaration was in similar terms.

[7] The declarations refer to:

● The training undertaken by Ms Ryan as required by s.513(1)(a) on 2 August 2016.

● The fact that Ms Ryan has not been convicted of an offence against an industrial law or other law, as referred to in s.513(1)(c).

● The fact that Ms Ryan has not been ordered to pay a penalty under an industrial law.

● That Ms Ryan has not had her right of entry cancelled etc. as referred to in s.513(1) (e) and (f).

[8] Ms Ryan’s permit was returned to the Regulatory Compliance Branch of the Commission (RCB) on 7 September 2016. Ms Ryan served two notices of entry during this gap period, without a valid entry permit.

[9] Ms Ryan’s declaration of 14 September 2016 states that her permit was not returned in time due to an administrative error in the Branch. She was not aware of this until she was advised of it by Mr Henderson on 9 September 2016. Apologies were made to the two employers in relation to which the notices had been served. The employers made no complaint and indicated that they would have consented to entry to their premises.

[10] Mr Henderson also set a letter to the RCB on 14 September 2016 explaining that the failure to return the permit arose from the responsible employee taking annual leave. Procedures in the Branch have now been changed to ensure that this does not happen again.

Commission Proceedings

[11] The matter was heard in Sydney on 21 October 2016. Mr N. Henderson appeared for the ASU together with Ms Ryan.

[12] Mr Henderson provided further detail as to the administrative measures put in place by the Branch.

[13] I accept that the instances of entry by Ms Ryan, without a valid permit, were inadvertent. I also accept that appropriate steps have been taken by the Branch to ensure that this does not happen again.

Conclusion

[14] I have considered the permit qualification matters revealed in the application and expanded upon at the hearing. There is nothing which prevents Ms Ryan being considered “a fit and proper person”.

[15] Accordingly, I am satisfied that Ms Ryan is a fit and proper person “as required by s.512.

[16] I therefore grant the application for an entry permit to Ms Ryan pursuant to s.512.

[17] This decision will be referred to the Regulatory Compliance Branch of the Commission which will issue the new permit

DEPUTY PRESIDENT

Appearances:

N. Henderson with L. Ryan, Applicant.

Hearing details:

2016

Sydney (with video link to Brisbane)

October 21.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR587031>