[1] On 21 December 2020 the Australian Workers’ Union (AWU) made an application to the Fair Work Commission (Commission) under s 512 of the Fair Work Act 2009 (Cth) (Act) for an entry permit for Mr Jaimie Michael McQueen, who is employed by the AWU in the position of Organiser in the Queensland Branch of the AWU.

[2] Mr McQueen previously held a right of entry permit under the Act between the dates of 2 July 2012 and 27 March 2014 while employed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and currently holds a right of entry permit under the Industrial Relations Act 2016 (Qld).

[3] I have determined this application on the basis of the application filed by the AWU, the declarations made in support of the application, the submissions filed by the AWU on 5 February 2021, and the witness statements of Mr McQueen and Ms Stacey Schinnerl, Southern District Secretary of the AWU, filed on 5 February 2021.

Statutory Framework

[4] Part 3-4 of the Act provides a framework within which officials of organisations may gain access to premises of employers and occupiers to represent members of organisations in the workplace, to hold discussions with members and potential members, and to investigate suspected contraventions of the Act, fair work instruments and State or Territory occupational health and safety laws.

[5] The object of Part 3–4 of the Act is to establish a framework that balances the right of organisations to represent their members, hold discussions with potential members and investigate suspected contraventions of relevant laws and instruments, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. 1

[6] Part 3-4 of the Act confers upon a permit holder a statutory right to enter premises owned or controlled by the occupier or employer that diminishes the common law rights of the occupier or employer. 2 The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.3 Accordingly, the right of entry scheme established by Part 3-4 of the Act should not be construed as giving any greater right than which is necessary to achieve the express or implied statutory purpose of the scheme.4

[7] Section 512 of the Act provides that 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 the entry permit. The Commission’s discretion whether or not to issue an entry permit is not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Australian Workers’ Union [2021] FWC 1200
Case: [2021] FWC 1200
Decision Date: 4 MARCH 2021

CaseChat Overview and Summary

In the case before the Fair Work Commission, the Australian Workers’ Union (AWU) applied for a right of entry permit for Jaimie Michael McQueen, a prospective employee of the union. The AWU sought the permit in accordance with the Fair Work Act, asserting that McQueen was a fit and proper person to hold such a position. The application was heard and determined by the Fair Work Commission.

The legal issues before the Commission involved the interpretation and application of the Fair Work Act, specifically the criteria for determining whether an individual is a fit and proper person to hold a right of entry permit. The AWU argued that McQueen met all the necessary requirements, and the Commission was tasked with assessing this claim. The decision hinged on evaluating McQueen's suitability based on the statutory criteria and any relevant evidence presented.

The Commission examined the evidence provided by the AWU, which included details about McQueen's qualifications, experience, and character. The AWU presented documentation and testimonials that highlighted McQueen's suitability for the role. After thorough consideration, the Commission found that McQueen met the statutory requirements for being a fit and proper person to hold a right of entry permit. Consequently, the Commission granted the application and issued the permit to McQueen.

The final orders of the Commission included the issuance of a right of entry permit to Jaimie Michael McQueen, recognising him as a fit and proper person for the role within the AWU. The Commission's decision was based on the comprehensive assessment of the evidence provided, affirming McQueen's eligibility under the relevant provisions of the Fair Work Act.

Orders