Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Communications Division - New South Wales Postal and Telecommunications Branch

[2016] FWC 2877

[2016] FWC 2877

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Communications Division - New South Wales Postal and Telecommunications Branch
(RE2016/154)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 9 MAY 2016

James Craig Metcher.

[1] On 11 February 2016 an application was lodged for a right of entry permit for Mr James Craig Metcher.

[2] The application is by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) – Communications Division - New South Wales Postal and Telecommunications Branch (the Branch). The application is signed by Mr Gil Enzon, a member of the Committee of Management of the Branch.

[3] Mr Metcher is the Secretary of the Branch. He has held that position since 1996 and has been a union official for over 25 years.

[4] Mr Metcher has held a series of permits over the years. The last was issued in 2013. That permit has now been returned to the Commission.

Legislative Provisions

[5] Under s.512 of the Fair Work Act 2009 (the Act), the Fair Work Commission (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 an entry permit. In deciding this, the Commission must take into account the “permit qualification matters” set out in s.513(1).

[6] Section 513(1) of the Act is set out below:

“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.”

[7] Sections 512–513 are within Part 3–4 of the Act, entitled ‘Right of Entry’. The objects of Part 3–4 are set out at s.480:

“480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and Fair Work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.”

Compliance with ss.512 and 513

[8] Attached to the application is a declaration by Mr Enzon that Mr Metcher satisfies the “fit and proper person test”, as required by s.512. The declaration addresses each of the “permit qualification matters” set out in s.513(1) of the Act. Mr Metcher’s declaration was in similar terms.

[9] The declarations refer to:

● The training undertaken by Mr Metcher as required by s.513(1)(a) in January 2010.

● The fact that Mr Metcher has not been convicted of an offence against an industrial law or other law, as referred to in s.513(1)(c).

● The fact that Mr Metcher has not been ordered to pay a penalty under an industrial law.

● That Mr Metcher has not had his right of entry cancelled etc. as referred to in s.513(1)(e) and (f).

Issue of Non-Disclosure

[10] The Regulatory Compliance Branch (RCB) of the Commission wrote to the Branch on 29 February 2016 raising an apparent non-disclosure in the declarations by Mr Enzon and Mr Metcher in respect of an allegation of an alleged assault by Mr Metcher of another CEPU official during the enterprise bargaining negotiations in 2013.

[11] These allegations were in the public domain and had been the subject of correspondence from the RCB to Mr Dan Dwyer, the then National President of the CEPU in July 2013. Mr Metcher denies receiving this correspondence. There was also correspondence from the RCB in December 2015 to Mr Metcher about, inter-alia, payment of legal costs in respect of this incident.

[12] The RCB correspondence of 29 February sought a response from the Branch on the question of non-disclosure. It also raised the length of time since Mr Metcher had training in accordance with s.513(1)(a) of the Act.

[13] Carroll O’Dea, Solicitors responded on behalf of the Branch, Mr Metcher and Mr Enzon on 24 March 2016. This correspondence was relied on at the hearing.

Commission Proceedings

[14] The matter was hard in Sydney on 27 April 2016. Mr P. Punch of Carroll O’Dea appeared for the CEPU, Mr Metcher and Mr Enzon. They were also in attendance.

[15] Mr Punch provided a written and oral submission and an affidavit from Mr Metcher. I have also had regard to his letter of 24 March 2016.

[16] It is accepted that information about the incident on 29 May 2013 and subsequent legal proceedings were not disclosed. However, it is submitted that this was understandable. There was no intention to deceive.

[17] The allegation was that Mr Metcher had assaulted Mr Martin O’Dea, then the Assistant National Secretary of the Communications Division of the CEPU. The incident took place during a break in the enterprise bargaining negotiations in Australia Post’s office in Melbourne.

[18] There is no doubt there was a disagreement. Mr Metcher apologised to Mr O’Dea in writing for any physical contact that occurred. Mr O’Dea took civil proceedings against Mr Metcher. This was settled on the basis of a consent intervention order, which ran out in July 2015. The Victorian Police brought assault charges against Mr Metcher. These were discharged on the basis of a diversion plan and no conviction recorded.

[19] It is submitted that the incident did not involve a right of entry issue and there was no conviction recorded, non-disclosure was therefore understandable. There was no failure to respond fully to the matters in the application form.

[20] It is further submitted that as the Branch had not received a copy of the RCB letter to Mr Dwyer of 12 July 2013, they were not as alert to the need to disclose as they might have been.

[21] There has been no other stain on Mr Metcher during his long career as a union official.

Conclusion

[22] I have considered the permit qualification matters in the application and expanded upon in the written submissions and at the hearing.

[23] I have considered the non-disclosure issues that I have set out in some detail above pursuant to s.513(g). There is an obligation on applicants for permits to disclose any possibly relevant matter. There should have been disclosure of these matters in my view.

[24] Nevertheless, I accept Mr Metcher’s explanation and his bona-fides, generally.

[25] On the basis of the submissions of Mr Punch, I am satisfied that the non-disclosure does not prevent Mr Metcher from being considered a “fit and proper person”.

[26] Mr Metcher last undertook the required training in 2010. In the circumstances I think that this is a case where further training should be undertaken. Mr Metcher undertook to do this at the hearing. However, it is appropriate for a condition to this effect to be placed on the issuing of the permit pursuant to s.515 of the Act.

[27] Subject to the training issue, I am satisfied Mr Metcher is a “fit and proper person” as required by s.512. I therefore grant the application for an entry permit to Mr Metcher pursuant to s.512.

[28] The permit will have the following condition imposed on it:

“That Jim Metcher undertake training in accordance with s.513(1)(a) of the Fair Work Act 2009 about the rights and responsibilities of an entry permit holder. Such training is to be completed within three months of the issuing of this permit. Confirmation of satisfactory completion of the training shall be provided to the Regulatory Compliance Branch of the Commission as soon as practical after the completion.”

[29] This decision will be referred to the RCB of the Commission which will issue the new permit.

DEPUTY PRESIDENT

Appearances:

P. Punch, solicitor with J.C. Metcher and G. Enzon for the CEPU.

Hearing details:

2016

Sydney:

April 27.

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