Australian Rail, Tram and Bus Industry Union-New South Wales Branch
[2022] FWC 2813
•20 OCTOBER 2022
| [2022] FWC 2813 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Australian Rail, Tram and Bus Industry Union-New South Wales Branch
(RE2022/1041)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 20 OCTOBER 2022 |
Application for a right of entry permit for Phillip Stephen Altieri – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Altieri is a fit and proper person to hold a conditional permit – permit issued.
The Australian Rail, Tram and Bus 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, Phillip Stephen Altieri. Mr Altieri is employed by the RTBU as an Assistant Secretary Victorian Branch and Assistant National Secretary Tram & Bush Division.
Mr Altieri was issued an entry permit on 27 August 2019.[1] This entry permit expired on 27 August 2022. It was returned on 29 September 2022 with a statutory declaration by Mr Alteiri addressing the late return. Mr Altieri declares that he did not realise the permit had expired. The permit had expired during a period that Mr Altieri was preoccupied attending to personal matters, the nature of which need not here be disclosed. Mr Altieri further declared that he exercised right of entry on four occasions after the permit expired: 31 August 2021, 7 September 2022, 14 September 2022 and 21 September 2022.
To issue a permit to Mr Altieri, I need to be satisfied that he is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters.
Relevant statutory provisions and application
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 some abstract 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.[2] 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.
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,[3] 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,[4] which must be evaluated and accorded appropriate weight.[5]
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.[6]
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.
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.
I turn to consider the application.
Consideration
In support of its application the RTBU filed declarations by Mr Altieri and Mr Mark Diamond, National Secretary of RTBU.
Permit qualification matters – s.513(1)(a), (b), (c), (d), (e) and (f)
According to the Declarations:
· Mr Altieri 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 23 August 2022 (s.513(1)(a) of the Act));[7]
· Mr Altieri has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);[8]
· Mr Altieri 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;[9]
· Neither Mr Altieri 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);[10]
· Mr Altieri 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);[11]
· Mr Altieri has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Altieri 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);[12] and
· Mr Altieri 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).[13]
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 Altieri is a fit and proper person to hold a right of entry permit.
Permit qualification matters – s.513(1)(g)
The late return of the permit and the exercise of entry rights after the permit had expired, are each relevant to the determination of whether Mr Altieri is a fit and proper person to hold an entry permit. The holder of a permit must understand the rights and obligation which arise from the issuing of a permit. Indeed, that such rights and obligations are understood is reflected in the training permit qualification matter. These obligations include the statutory requirement to return an expired permit within the period prescribed and the fact that entry rights may only be exercised by permit holders holding an unexpired entry permit. I accept that inadvertence rather than deliberate conduct explains the conduct, which might otherwise have been serious contravening conduct. A failure to return an expired permit exposes the permit holder to the imposition of a civil penalty (s 517). The exercise of purported entry rights as a permit holder after the permit has expired might be action that is reckless as to whether the permit holder is entitled to enter premises in contravention of s 503. Such conduct would also expose the permit holder to the imposition of a civil penalty. These matters weigh against a conclusion that Mr Altieri is a fit and proper person to hold an entry permit, but not so significantly as to outweigh the other permit qualification matters, all of which weigh in his favour.
Conclusion
Taking into account the permit qualification matters, for the reasons earlier stated I am satisfied that Mr Altieri is a fit and proper person to hold an entry permit. The application by the RTBU for an entry permit to be issued to Mr Altieri is granted.
A permit will be separately issued.
DEPUTY PRESIDENT
[1] RE2019/688.
[2] 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]
[3] [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]
[4] 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
[5] 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])
[6] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15], p 41
[7] Form F42, attachment ARTBIU Federal Right of Entry In-House Training – Certificate of Completion dated 23 August 2022.
[8] Ibid at (b).
[9] Ibid at (c).
[10] Ibid at (d).
[11] Ibid at (e).
[12] Ibid at (f).
[13] Ibid at (g).
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