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

[2019] FWC 7629

[2019] FWC 7629

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
(RE2019/980)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 7 NOVEMBER 2019

Application for a right of entry permit for Christopher Andrew Lynch.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has applied 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 Divisional Branch Assistant Secretary, Mr Christopher Andrew Lynch.

[2] On 22 October 2019, the Australian Building and Construction Commissioner (ABCC) advised the Commission that he did not wish to be heard in relation to the application. In the circumstances, I have decided to determine the application on the papers without holding a hearing.

Relevant statutory provisions and application

[3] Subdivision A, Division 6 of Part 3–4 of the Act contains provisions dealing relevantly with issuing entry permits to officials of registered organisations. Section 512 of the Act provides that the Commission may, on application, issue a right of entry permit to an official of an organisation if it is satisfied that the official is a fit and proper person to hold the entry permit. Section 513 of the Act contains a number of matters described as permit qualification matters that the Commission must take into account in deciding whether an official is a fit and proper person to hold an entry permit. The matters are:

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

•  whether the official has ever been convicted of an offence against an industrial law;

•  whether the official has ever been convicted of an offence against a Federal, State/Territory or foreign law involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property;

•  whether the official or any other person has even been ordered to pay a penalty under the Act or other industrial law in relation to the action taken by the official;

•  whether a permit issued to the official under the Act or similar law of the Commonwealth has been revoked, suspended or made subject to conditions;

•  whether a court or other person or body under State/Territory law or OHS law has cancelled, suspended or imposed conditions on a permit for industrial or OHS purposes or disqualified the official from exercising or applying for a right of entry for industrial or OHS purposes; and

•  any other matters that the Commission considers relevant.

[4] Section 514 of the Act restricts the Commission’s power to issue a right of entry permit at a time when a suspension or disqualification imposed by a court or other person or body applies to the official’s exercise of or prevents the official from exercising or applying for a right of entry for industrial or OHS purposes under a State/Territory industrial or OHS law.

[5] Section 515 of the Act gives the Commission power to impose a condition on a right of entry permit when it is issued and in deciding whether to do so, the Commission must take into account the permit qualification matters to which earlier reference has been made.

[6]  The operation of these provisions and their application is now well settled. In previous decisions I summarised the relevant principles and without repetition I adopt what is therein said. 1 In short compass however, the assessment of whether an official of an organisation is a fit and proper person to hold an entry permit requires taking into account the permit qualification matters set out in s.513 of the Act considered in the context of the rights the holder of an entry permit may exercise under the Act, the limitations on and conditions attaching to the exercise of those rights and the responsibilities that must be exercised in respect of those rights.

[7] 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 (Peko-Wallsend), 2  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.3 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:4

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant”. 5

[8] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend: 6 

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".” 7

[9] Having regard to the structure and content of s.513, in deciding whether an official of a registered organisation is a fit and proper person to hold an entry permit, all of 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 an official 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 the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight.

[10] I turn to consider the application.

Consideration

[11] Mr Lynch has previously held and currently holds an entry permit which is due to expire on 9 November 2019. 8 That permit was issued with no conditions.

Permit qualification matters – s.513(1)(a), (b), (c), (d), (e) and (f)

[12] According to the declarations filed by the CEPU in support of the application for the grant of a permit to Mr Lynch (the Declarations):

•  Mr Lynch has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 2 September 2019 (s.513(1)(a) of the Act)); 9

•  Mr Lynch has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act); 10

•  Mr Lynch has 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; 11

•  Mr Lynch has never been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him (s.513(1)(d) of the Act); 12

•  Mr Lynch 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) of the Act); 13

•  Mr Lynch has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Lynch 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); 14 and

•  Mr Lynch has 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). 15

[13] I accept that this information as disclosed in the Declarations concerning these matters is accurate and correct. These matters all weigh in favour of a conclusion that Mr Lynch is a fit and proper person to hold a right of entry permit.

[14] In the Declarations lodged in support of the application for a permit, Mr Lynch and the CEPU disclosed that the CEPU has been ordered to pay a penalty in relation to action taken by Mr Lynch. In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union and Anor (ABCC v CFMEU), 16 the Full Court of the Federal Court found that the CEPU, by the conduct of its officers (Mr Lynch being one of those officers) on 24, 25 and 26 May 2011, was directly knowingly concerned in and party to contraventions by its members who engaged in unlawful industrial action on those dates. As a result, a penalty of $130,000 was imposed on the CEPU. This matter has not previously been considered in any detail in previous applications for entry permits for Mr Lynch as the Court’s judgment was not delivered until 3 August 2017.

[15] It was also disclosed that in Director Fair Work Building Industry Inspectorate v Andrew Sutherland & Ors (FWBII v Andrew Sutherland), 17 of which Mr Lynch was a respondent, the CEPU was ordered to pay a penalty under the Building Construction Industry Improvement Act 2005 (Cth) by reason of Mr Lynch’s conduct. Mr Lynch disclosed that the parties reached settlement out of court and the proceeding was discontinued against him. Mr Lynch also says he was not involved in the settlement and has no knowledge of the settlement terms. Mr Lynch continues to deny the allegations that were made against him in that matter. This matter has previously been considered and dealt with in previous applications for an entry permit for Mr Lynch.18

[16] These two matters are to be considered under s.513(1)(d) of the Act. The contravention in ABCC v CFMEU is the only occasion Mr Lynch has been found to have contravened an industrial law and to have imposed a penalty on the CEPU by reason of his conduct. It must be noted that in FWBII v Andrew Sutherland no finding was made against Mr Lynch. The passage of time is also relevant as the conduct in both proceedings occurred over 8 years ago and there is no evidence of any further contravening conduct engaged in by Mr Lynch. Whilst the contravention found and the penalties imposed are matters to be weighed in the balance against a conclusion as to fitness and propriety, the passage of time, undertaking further training and the fact that there has been no further contravening conduct militates against the significance of the weight to be attributed. In written submissions filed in support of the application, the CEPU have contended, that the view of the regulator, the ABCC, should be taken into account in matters such as this in the context that the ABCC have seen fit not to make any submission in this proceeding. I accept that this is also a relevant matter. 19 On this basis, the disclosed matters alone are not sufficient to swing the balance when weighed with the other permit qualification matters.

Conclusion

[17] Taking into account the permit qualification matters, for the reasons stated I am satisfied that Christopher Andrew Lynch is a fit and proper person to hold an entry permit.

[18] A permit will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR714035>

 1   See for example [2017] FWC 666 at [4]–[8]

 2 (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

 3   See 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 and National Retail Association v Fair Work Commission [2014] FCAFC 118

 4 (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at [103]

 5 (1987) 16 FCR 167 at 184

 6 [1986] HCA 40; (1986) 162 CLR 24

 7   Ibid at [15], pp.39-41

 8   RE2016/1426

 9   Form F42, Declaration by proposed permit holder dated 3 October 2019 at (a) and Attachment ‘ACTU Statement of Completion’

 10   Ibid at (b)

 11   Ibid at (c)

 12   Ibid at (d)

 13   Ibid at (k)

 14   Ibid at (l)

 15   Ibid at (m)

 16 [2017] FCAFC 113

 17   BRG1008/2011

 18   RE2013/1382 and RE2016/1426

 19   Submissions of the CEPU and Mr Lynch at [27]-[28]; CFMEU [2017] FWC 4846 at [13]