Australian Rail, Tram and Bus Industry Union

[2021] FWC 2889

[2021] FWC 2889

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Australian Rail, Tram and Bus Industry Union
(RE2021/278)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 20 MAY 2021

Application for a right of entry permit for George Johnston – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Johnston is a fit and proper person to hold a permit – permit issued.

[1] The Australian Rail, Tram and Bus Industry Union (RTBU) 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, George Johnston. Mr Johnston is employed by the RTBU 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,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 which must be evaluated and accorded appropriate weight. 4

[4] The weight given to a particular matter is ultimately a matter for the Commission, however in ascribing weight to each matter care should be taken to ensure that a relevant factor of great importance is given adequate weight and that excessive weight to a relevant factor of no great importance is not ascribed. 5

[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 RTBU filed declarations by Mr Johnston and Mr Mark Diamond, National Secretary (the Declarations).

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

[9] According to the Declarations:

•  Mr Johnston 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 8 March 2021 (s.513(1)(a) of the Act));⁶ 

•  Mr Johnston has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);⁷

•  Mr Johnston 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;⁸

•  Neither Mr Johnston 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);⁹

•  Mr Johnston 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);¹⁰

•  Mr Johnston has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Johnston 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);¹¹ and

•  Mr Brindley 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).¹²

[10] 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 Mr Johnston is a fit and proper person to hold a right of entry permit.

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

[11] Mr Johnston discloses in a statutory declaration filed with his application that he undertook a visit to the Pacific National Kewdale Depot on 14 December 2019. Mr Johnston’s previous right of entry permit expired on 29 November 2019. Mr Johnston declares that he accepted responsibility for the breach that occurred on 14 December 2019 and that he had not exercised right of entry using his previous right of entry permit since 14 December 2019. Mr Johnston declares that he understood and accepted the serious nature and consequences of exercising his right of entry permit after it had expired. Finally, he declares that he understood that as the permit holder, it was his responsibility to ensure the permit was returned within seven days of its date of expiry.

Conclusion

[12] Mr Johnston’s entry into a workplace after the expiry of his entry permit weighs against the issue of a right of entry permit. He was not authorised to do so and likely breached s 503(1) of the Act (which is a civil remedy provision) in the process, in that he entered the workplace, and at the very least was reckless, as to whether he was giving the impression that the entry was authorised by Part 3-4 of the Act, when it was not. Mr Johnson’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. However, Mr Johnston’s prompt action in ceasing workplace visits, the circumstances surrounding the relevant conduct and the seriousness with which Mr Johnston has treated his conduct evidenced by his admission and acceptance of the seriousness of the conduct (both as to the unauthorised entry and the failure to return the expired permit on time) ameliorate, to some extent, the seriousness of his conduct or at least the weight that should be ascribed. Overall, I am satisfied that Mr Johnston is a fit and proper person to hold a right of entry permit taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act. The conduct disclosed does not weigh so heavily as to outweigh the other relevant matters weighing in favour of a fit and proper person conclusion. The application by the RTBU for an entry permit to be issued to Mr Johnston is granted.

[13] A permit will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR730005>

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   Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184; (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   Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15], p 41

6 Form F42, Declaration by proposed permit holder dated 12 March 2021 at (a) and RTBU Certificate of Completion dated 8 March 2021

7 Ibid at (b)

8 Ibid at (c)

9 Ibid at (d)

10 Ibid at (e)

11 Ibid at (f)

12 Ibid at (g)