Australian Nursing and Midwifery Federation-New South Wales Branch

[2019] FWC 7877

[2019] FWC 7877

FAIR WORK COMMISSION

DECISION

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

Australian Nursing and Midwifery Federation-New South Wales Branch
(RE2019/928)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE 11 DECEMBER 2019

Application for a right of entry permit for Jonathan William Farry.

[1] The Australian Nursing and Midwifery Federation (ANMF) 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, Mr Jonathan William Farry.

Relevant statutory provisions and application

[2] 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•  whether a permit issued to the official under the Act or similar law of the Commonwealth has been revoked, suspended or made subject to conditions;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 purposes; and

•  any other matters that the Commission considers relevant.

[3] 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.

[4] 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.

[5]  The operation of these provisions and their application is now well settled. In previous decisions I set out in summary form 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.

[6] 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

[7] 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

[8] 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.

[9] I turn to consider the application.

Consideration

[10] Mr Farry is employed as an organiser with ANMF. Mr Farry has held entry permits since 2015 and his most recent entry permit expired on 3 October 2019. 8 Both of the permits were issued with the following conditions:

“•  Mr Farry must take steps to verify that he holds a current entry permit under the FW Act before he issues any entry notice under the FW Act.

•  Mr Farry must have his entry permit under the FW Act on his person at any time he exercises entry rights under the FW Act, and must produce that entry permit in accordance with the requirements of ss. 489 and 497 (as applicable).”

[11] However, in the declarations filed by the ANMF in support of the application for the grant of a permit to Mr Farry, Mr Farry and Mr Brett Holmes, the Branch Secretary of the ANMF, both declared relevantly Mr Farry ‘has not had … or made subject to conditions, any permit issued under Part 3-4 of the Fair Work Act 2009…’ These declarations are plainly false.

[12] In the circumstances I listed the matter for a directions hearing where I directed the ANMF to provide an amended application as well as statutory declarations from both Mr Farry and Mr Holmes setting out how it came to be that they made false statutory declarations.

[13] Mr Holmes’ declaration disclosed that the F42 statutory declarations are prepared by their employee relations staff, who are delegated to search the ANMF internal records as well as Federal Court judgments and Commission decisions and orders. The search of the records was made using Mr Farry’s full name, Jonathan William Farry, which returned no results as the decision in RE2015/1553 which originally imposed the condition was issued under the name Jonathan Farry. 9 Mr Holmes also declared that Mr Farry has been allocated work in the New South Wales Public Health system and therefore has infrequently used his federal right of entry permit during the last three years. 10 Mr Holmes states that each ANMF applicant for a right of entry permit has a 10 minute scheduled interview with him for the purpose of making the declarations.11 In this interview Mr Holmes asked Mr Farry whether he was aware of each of the requirements under the Act to meet the fit and proper person test and if anything had occurred since he was last issued a permit that would weigh against a conclusion that he was a fit and proper person. Mr Farry answered that he was aware of the requirements and that nothing had occurred since he was last issued a permit. Mr Holmes states that he signed the declaration under the belief that he had made sufficient inquiries. Mr Holmes states he now recognises that each of the matters under s.513 of the Act must be read out to all applicants for a permit in their interview with him and that it will now be a requirement for all applicants to present their right of entry permits to the ANMF before any right of entry permit application is made.12

[14] In Mr Farry’s declaration he states he knew that he had restrictions on his right of entry permit however he did not thoroughly read through the F42 statutory declaration. 13 He attempts to explain the oversight by declaring that at the time he was involved with a ‘difficult and time sensitive workplace issue involving the safety of union members and patients at a mental health facility’ and that he was ‘anxious regarding the safety outcome for members.’14 He states he did not intend to mislead the Commission or attempt to hide his previous conditions. 15 He states that he understands that lodging a false declaration is not acceptable, that he should have shown more care and that he apologises unreservedly. I accept the apology, but the lack of diligence displayed in completing his declaration raises concerns as to his fitness and propriety. Conditions imposed on a permit are clearly spelled out and since the same conditions were imposed on the last two issued permits, the failure to disclose is frankly inexplicable. The failure to disclose is a matter that weighs against a conclusion that Mr Farry is a fit and proper person to hold an entry permit.

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

[15] According to the amended declarations filed by the ANMF in support of the application for the grant of a permit to Mr Farry (the Amended Declarations):

•  Mr Farry 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 16 September 2019 (s.513(1)(a) of the Act)); 16

•  Mr Farry has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act); 17

•  Mr Farry 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; 18

•  Neither Mr Farry 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); 19

•  Mr Farry has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked or suspended (s.513(1)(e) of the Act); 20

•  Mr Farry has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Farry 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) 21 and

•  Mr Farry 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). 22

[16] I accept that this information as disclosed in the Amended Declarations concerning these matters is accurate and correct. These other matters all weigh in favour of a conclusion that Mr Farry is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s.513(e)

[17] The Amended Declarations and the further statutory declarations of Mr Holmes and Mr Farry read together disclose that Mr Farry has had conditions imposed on two entry permits issued under Part 3-4 of the Act (s.513(1)(e) of the Act).

[18] These conditions were imposed on Mr Farry’s first right of entry permit as Mr Farry, under the mistaken belief that he held an entry permit, had purported to exercise rights of entry under the Act on three occasions to enter workplaces. 23 Vice President Hatcher observed that although he was satisfied that the conduct was not intentional, it nevertheless ‘demonstrates a lack of diligence on his part to ensure that he conducted himself in accordance with the relevant requirements of the FW Act.’24 The failure to disclose the condition previously imposed serves only to reinforce the lack of diligence on Mr Farry’s part.

[19] The fact that Mr Farry has previously had a condition imposed on his permit also weighs against a finding that he is a fit and proper person to hold an entry permit. However, this and his failure to disclose the condition is to be balanced against the fact that the events that led to the imposition of the condition happened nearly 4 years ago and it appears there has been no repetition of the conduct. It appears he has held a right of entry permit without any issue since then.

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

[20] As should be apparent already, I consider Mr Farry filing a false declaration in the Commission a plainly relevant consideration pursuant to s.513(1)(g) when assessing whether Mr Farry is a fit and proper person, and this weighs against such a finding. Making a false declaration is a serious matter and can be an offence with penalties involving imprisonment of up to 12 months. However, Mr Holmes and Mr Farry’s declarations demonstrate that he did not intend to mislead the Commission but rather the making of a false declaration was caused by an oversight and failed administrative systems. I am satisfied that the false statutory declarations of Mr Farry and Mr Holmes were not intentionally made. It was nevertheless careless and disregards the important role that declarations play in the decision making of the Commission in determining whether a permit should issue. Mr Farry says he accepts full responsibility for the oversight and apologises. As already noted, the failure to disclose demonstrates a lack of care and diligence in relation to important legal responsibilities. This is concerning as the conditions imposed on Mr Farry’s most recent permit were to rectify a perceived lack of diligence in ensuring he conducts himself in accordance with the Act. 25

[21] On 29 October 2019 my associate advised the ANMF that I was inclined to impose the same conditions on Mr Farry’s permit as his previous permit and invited them to make submissions. The ANMF declined to make submissions and stated it accepts that Mr Farry may have the same conditions placed on his new permit.

[22] Taking all the permit qualifications matters into account, I am satisfied that Mr Farry is a fit and proper person to hold an entry permit with conditions specified in [24] below.

[23] There are no other matters, of which I am aware that are relevant, and which weigh against a conclusion that Mr Farry is a fit and proper person to hold an entry permit under the Act.

Conclusion

[24] Taking in account the permit qualification matters, for the reasons stated I am satisfied that Jonathan William Farry is a fit and proper person to hold an entry permit, with the following conditions:

•  Mr Farry must take steps to verify that he holds a current entry permit under the FW Act before he issues any entry notice under the FW Act.

•  Mr Farry must have his entry permit under the FW Act on his person at any time he exercises entry rights under the FW Act, and must produce that entry permit in accordance with the requirements of ss. 489 and 497 (as applicable).

[25] A permit with conditions will be separately issued.

DEPUTY PRESIDENT

Determined on the papers

Printed by authority of the Commonwealth Government Printer

<PR714401>

 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 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 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   RE2016/1243

 9   [2015] FWC 8600

 10   Statutory declaration of Brett Howard Holmes dated 22 October 2019 at [2]

 11   Ibid at [6]

 12   Ibid at [10] and [21]

 13   Statutory declaration of Jonathan Farry dated 22 October 2019 a [2]

 14   Ibid.

 15   Ibid. [3]

 16   Form F42, Declaration by proposed permit holder dated 21 October 2019 at (a) and Attachment ‘ACTU Statement of completion presented to Jonathan William Farry’

 17   Ibid at (b)

 18   Ibid at (c)

 19   Ibid at (d)

 20   Ibid at (e)

 21   Ibid at (f)

 22   Ibid at (g)

 23   [2015] FWC 8600

 24   [2015] FWC 8600 at [10]

 25   Ibid.