Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

[2019] FWC 6933

[2019] FWC 6933

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

(RE2019/669)

Deputy President Colman MELBOURNE, 8 OCTOBER 2019

Application for a right of entry permit to Mr Michael Bull.

1. On 9 July 2019, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU), made an application 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 Michael Bull, whom it employs as an organiser.

1. I have decided to grant the application for the following reasons.

1. 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 to issue an entry permit is not conferred in unqualified terms. The discretion must be exercised having regard to the ‘permit qualification matters’ set out in s 513(1) of the Act:

“513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law;

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.”

1. The declarations filed by the AMWU in support of the application for the grant of an entry permit to Mr Bull attested to the following matters:

(a)   Mr Bull has never been convicted of an offence against an industrial law (s 513(1)(b));

(b)   Mr Bull has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, fraud, dishonesty, intentional use of violence against another person or intentional damage or destruction of property (s 513(1)(c));

(c)   Mr Bull has never been ordered to pay a penalty under the Act or any other industrial law (s 513(1)(d));

(d)   Mr Bull 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)); and

(e)   Mr Bull has not had a State or Territory entry permit cancelled, suspended or made subject to conditions, nor has he been disqualified under State or Territory laws from exercising or applying for an entry permit (s 513(1)(f)).

1. I accept the information in the declarations concerning these matters. Each of these permit qualification matters weighs in favour of a conclusion that Mr Bull is a fit and proper person to hold an entry permit.

1. The declarations also stated that Mr Bull has received appropriate training about the rights and responsibilities of a permit holder within the meaning of s 513(1)(a). Submitted with the application for a permit was a certificate of completion issued by the ACTU Organising Centre, certifying that on 25 June 2019 Mr Bull completed the course ‘Federal Right of Entry’. I consider that the training provided through the ACTU Organising Centre on federal right of entry is relevant and appropriate for the purpose of s 513(1)(a).

1. As to other relevant matters under s 513(1)(g), the application discloses that on 20 November 2018, the Federal Court issued a decision in which it found and declared that Mr Bull contravened ss 346 and 417 of the Act when, on 31 July 2017, he organised employees of Visy Board Pty Ltd employed at Hammond Road in Dandenong not to attend for work or otherwise perform work that day (see Visy Board Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2018] FCA 1799). The AMWU was also found to have contravened these provisions. However, the Court did not impose a penalty on Mr Bull or the union.

1. Attached to the application is a written disclosure document made by Mr Bull, in which he has affirmed that, if he is to have the benefit of industrial laws such as those associated with the issue of a right of entry permit, he must also follow those laws, and that he intends to do so.

1. In the present case, all of the permit qualification matters in s 513(1)(a) to (f) weigh in favour of granting the application. I have taken into account the further matter that Mr Bull and the union have brought to the Commission’s attention. I am satisfied that Mr Bull is a fit and proper person to hold an entry permit.

1. I therefore exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Bull with an entry permit. The application is granted and an entry permit will be issued to Mr Bull separately.

DEPUTY PRESIDENT

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