Benedict Davis - [2022] FWC 405

[2022] FWC 405

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Benedict Davis

(RE2021/1382)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 28 FEBRUARY 2022

Application for a right of entry permit for Mr Benedict Davis – permit issued

The Australian Workers Union (AWU) has made an application under s 512 of the Fair Work Act 2009 (FW Act) for the issuance of a right of entry permit to Mr Benedict Davis, the Victorian branch secretary of the AWU. The union contends that the Commission should be satisfied that Mr Davis is a fit and proper person to hold a right of entry permit under Part 3-4 of the FW Act and that it should issue a permit without conditions.

In accordance with s 112 of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act), the General Manager notified the Australian Building and Construction Commissioner (‘ABC Commissioner’) of the present application. The ABC Commissioner did not seek to be heard pursuant to s 110 of the BCIIP Act or otherwise.

The AWU filed a written submission in support of its application and advised the Commission that it was content for the application to be determined on the papers. I consider it appropriate to do so.

Section 512 of the FW 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 must be exercised having regard to the ‘permit qualification matters’ set out in s 513(1) of the FW Act. That section provides as follows:

“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…

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: [2022] FWC 405
Decision Date

CaseChat Overview and Summary

The case involved an application for a right of entry permit for Mr Benedict Davis, the Victorian branch secretary of the Australian Workers Union (AWU), pursuant to s 512 of the Fair Work Act 2009 (FW Act). The AWU sought the issuance of a permit for Mr Davis, asserting that he was a fit and proper person to hold such a permit. The application was made in accordance with the Building and Construction Industry (Improving Productivity) Act 2016, with the Australian Building and Construction Commissioner notified but choosing not to participate. The AWU supported the application with written submissions and agreed to have it determined on the papers.

The legal issues in this case revolved around whether Mr Davis met the criteria to be considered a 'fit and proper person' to hold a right of entry permit, as required by s 512 of the FW Act. This assessment involved examining several 'permit qualification matters' outlined in s 513(1) of the FW Act, including whether Mr Davis had received appropriate training, had a history of convictions relevant to the permit, and whether there had been any penalties imposed or entry permits revoked or suspended. The Court also needed to consider whether the AWU's past conduct, specifically a penalty imposed on the union for actions taken by Mr Davis, would affect his eligibility.

The Court found that Mr Davis met most of the permit qualification criteria favourably. He had completed the union's approved right of entry training, had no relevant convictions, and had not been subject to penalties or revocations of entry permits. However, there was a negative consideration arising from a previous penalty imposed on the AWU for conduct by Mr Davis in 2015. Despite this, the Court determined that Mr Davis was a fit and proper person to hold a permit. Factors supporting this conclusion included Mr Davis's belief that his actions were lawful at the time, his long and otherwise unblemished record as a union official, and the significant time elapsed since the incident. The Court concluded that the positive aspects outweighed the negative, allowing it to exercise its discretion to grant the permit.

The final orders of the Court were to issue a right of entry permit to Mr Davis, recognising him as a fit and proper person to hold such a permit, and directing the issuance of the permit separately.

Orders