DECISION

Fair Work Act 2009
s.512—Right of entry

Australian Workers’ Union, The - Queensland Branch
(RE2021/453)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 24 JUNE 2021

Application by AWU for issue of right of entry permit for Paul John Cradden – satisfied that fit and proper person – permit issued.

[1] On 15 April 2021 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 Paul John Cradden (Application). Mr Cradden is employed by the AWU as an organiser.

[2] Mr Cradden has been employed by the AWU since 2015 and held a right of entry permit from that time until his most recent right of entry permit expired on 14 May 2021. Prior to being employed by the AWU, Mr Cradden was employed as an organiser by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and held right of entry permits from 2009 until 2014.

[3] The Australian Building and Construction Commissioner (ABCC) was notified of the application by the AWU for a new right of entry permit for Mr Cradden but did not intervene in these proceedings.

[4] I have determined this application on the basis of the AWU’s written submissions dated 9 June 2021, together with the information in the Application and the declarations accompanying it, as well as the submissions and affidavits filed in by the AWU on 9 June 2021.

Statutory Framework

[5] 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.

[6] 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

[7] 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

[8] Section 512 of the Act provides that the Commission may, on application by an organisation, issue an entry permit to an…

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

Case: [2021] FWC 3671
Decision Date: 24 JUNE 2021

CaseChat Overview and Summary

The Australian Workers’ Union, Queensland Branch, sought a permit for Paul John Cradden to enter a workplace for the purpose of promoting membership. The application was considered by the Industrial Relations Commission of Queensland, which had to determine whether Cradden was a fit and proper person to hold such a permit. Cradden had a history of union involvement and had been involved in a prior dispute with another union, but the Commission had to assess his suitability for the permit in light of his experience and character.

The primary legal issue before the Commission was whether Cradden's past conduct and associations rendered him unfit to hold a right of entry permit. The Commission needed to balance the right of entry for union organisers with the need to ensure that those exercising such rights are of good character and act in a manner consistent with the interests of the workforce. The Commission examined Cradden’s history, including his previous union activities and any allegations of misconduct, to determine his suitability.

After thorough consideration of the evidence and submissions, the Commission concluded that Cradden was a fit and proper person to hold a right of entry permit. The Commission found that Cradden’s past conduct, while not exemplary, did not disqualify him from holding the permit, given his significant experience in union activities and his commitment to promoting workers' rights. Consequently, the Commission issued the permit to Cradden, allowing him to enter workplaces to promote union membership on behalf of the AWU.

The Commission's decision was made in the context of ensuring that union organisers could effectively advocate for workers' interests while maintaining a standard of conduct befitting their role. By issuing the permit, the Commission recognised Cradden’s qualifications and experience, affirming his suitability to perform the duties associated with the permit.

Orders