Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2024] FWC 1768

[2024] FWC 1768

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 512—Right of entry

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(RE2024/566)

DEPUTY PRESIDENT GOSTENCNIK HOBART, 8 JULY 2024

Application for a right of entry permit for Robert Mark McLauchlan – whether fit and proper person to hold an entry permit under the Act – satisfied Mr McLauchlan is a fit and proper person to hold a permit – permit issued.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applies under s 512 of the Fair Work Act 2009 (Cth) (Act) for a right of entry permit to be issued to its official, Robert Mark McLauchlan. Mr McLaughlan declared that he holds the ‘Organising and Advocacy – Qld’ role in the Communications Division – CWU Central Branch.[1]

1. Mr McLauchlan was issued an entry permit on 29 May 2020,[2] which expired on 29 May 2023.

1. The applicable principles for determining right of entry permit applications under s 512 of the Act 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, 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 exercise the powers, functions and responsibilities attached to holding a permit.[3] 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.

1. The permit qualification matters contained in s 513(1) of the Act 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,[4] 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,[5] which must be evaluated and accorded appropriate weight.[6]

1. 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.[7]

1. Having regard to the structure and content of s 513 of the Act, in deciding whether a proposed permit holder is a fit and proper person to hold an entry permit, all 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 a proposed permit holder 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 a proposed permit holder for such an offence would be. The absence of such a conviction must be accorded appropriate weight.

1. 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.

1. I turn to consider the application.

Consideration

1. In support of its application, the CEPU filed declarations by Mr McLauchlan and Peter Chaloner, Assistant Secretary (Communications Division – CWU Central Branch) of the CEPU (Declarations).

1. According to the Declarations and the supporting material, Mr McLauchlan has:

·received appropriate training about the rights and responsibilities of a permit holder by undertaking an online course of training on the subject of federal right of entry conducted by the ACTU Institute on 23 May 2024 (s 513(1)(a) of the Act);[8]

·never been convicted of an offence against an industrial law (s 513(b) of the Act);[9]

·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;[10]

·never been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him, nor has any other person (s 513(1)(d) of the Act);[11]

·not had any entry permit issued under Part 3-4 of the Act or similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permits (s 513(1)(e) of the Act);[12]

·not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr McLauchlan 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);[13] and

·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).[14]

1. 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 McLauchlan is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s 513(1)(g)

1. The Declarations indicate that Mr McLauchlan and Mr Chaloner are not aware of any other matters that may be relevant as to whether Mr McLauchlan is a fit and proper person to hold a permit.[15] However, in a statutory declaration dated 14 June 2024, Mr McLauchlan declared that his RE2020/338 entry permit was not returned to the Commission in accordance with the Act.[16] Mr McLauchlan also declared that he has exercised right of entry at Australia Post premises on many occasions following the expiration of his entry permit and that no issue or dispute has arisen from his visits.[17]

1. These matters are plainly relevant and weigh against a conclusion that Mr McLaughlan is a fit and proper person to hold a right of entry permit. However, the weight that is to be ascribed to these matters is to be informed by the following:

• Mr McLaughlan became aware of his failure to return the entry permit in May 2024 following an internal audit[18] and the entry permit was returned shortly thereafter to the Commission on 8 May 2024;

• He disclosed the failure to return the entry permit in accordance with the Act[19] and was candid in declaring he exercised right of entry following the expiration of his entry permit;[20]

• He apologised for his failure to return the permit as required;[21]

• He has committed to returning any right of entry permit that has expired in the future;[22]

• There was no evident issue or dispute consequent on his right of entry visits without a valid entry permit;[23] and

• He recently undertook training on federal right of entry on 23 May 2024.[24]

1. Taken together, although the conduct in which Mr McLaughlan engaged was serious, it was inadvertent rather than deliberate and not sufficiently significant as to outweigh the other matters which must be considered in the balance, which all tend to favour a conclusion that Mr McLaughlan is today a fit and proper person to hold a right of entry permit.

1. There are no other matters of which I am aware that I consider relevant to the determination of whether Mr McLauchlan is a fit and proper person to hold an entry permit.

Conclusion

1. Taking into account the permit qualification matters, and for the reasons earlier stated, I am satisfied that Robert Mark McLauchlan is a fit and proper person to hold an entry permit. The application by the CEPU for an entry permit to be issued to Mr McLauchlan is granted.

1. A permit will be separately issued.

DEPUTY PRESIDENT

[1] Form F42, Declaration by Robert Mark McLauchlan dated 24 May 2024 at 2

[2] RE2020/338

[3] 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]

[4] [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen [1989] HCA 39, (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]

[5] 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, (1999) 94 FCR 561 and National Retail Association v Fair Work Commission [2014] FCAFC 118, (2014) 225 FCR 154

[6] 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] FCA 845, (2002) 123 FCR 499 at [62])

[7] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15], p 41

[8] Form F42, Declaration by Robert Mark McLauchlan dated 24 May 2024 at (a); Form F42, Declaration by Peter Chaloner dated 27 May 2024 at 4; ACTU Certificate of Completion of Robert Mark McLauchlan dated 23 May 2024

[9] Form F42, Declaration by Robert Mark McLauchlan dated 24 May 2024 at (b); Form F42, Declaration by Peter Chaloner dated 27 May 2024 at 2(a)

[10] Form F42, Declaration by Robert Mark McLauchlan dated 24 May 2024 at (c); Form F42, Declaration by Peter Chaloner dated 27 May 2024 at 2(b)

[11] Form F42, Declaration by Robert Mark McLauchlan dated 24 May 2024 at (d); Form F42, Declaration by Peter Chaloner dated 27 May 2024 at 2(c)

[12] Form F42, Declaration by Robert Mark McLauchlan dated 24 May 2024 at (e); Form F42, Declaration by Peter Chaloner dated 27 May 2024 at 2(d)

[13] Form F42, Declaration by Robert Mark McLauchlan dated 24 May 2024 at (f); Form F42, Declaration by Peter Chaloner dated 27 May 2024 at 2(e)

[14] Form F42, Declaration by Robert Mark McLauchlan dated 24 May 2024 at (g); Form F42, Declaration by Peter Chaloner dated 27 May 2024 at 2(f)

[15] Form F42, Declaration by Robert Mark McLauchlan dated 24 May 2024 at (h); Form F42, Declaration by Peter Chaloner dated 27 May 2024 at 2(g)

[16] Statutory declaration of Robert McLauchlan dated 14 June 2024 at [2]

[17] Ibid

[18] Ibid

[19] Ibid

[20] Ibid

[21] Ibid

[22] Ibid

[23] Ibid

[24] Form F42, Declaration by Robert Mark McLauchlan dated 24 May 2024 at (a); Form F42, Declaration by Peter Chaloner dated 27 May 2024 at 4; ACTU Certificate of Completion of Robert Mark McLauchlan dated 23 May 2024

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