Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - New South Wales Divisional Branch
[2023] FWC 1336
•21 JUNE 2023
| [2023] FWC 1336 |
| 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 - Electrical, Energy and Services Division - New South Wales Divisional Branch
(RE2023/308)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 21 JUNE 2023 |
Application for a right of entry permit for Stewart David Edward – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Edward is a fit and proper person to hold a permit – permit issued.
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 official, Stewart David Edward. Mr Edward is employed by the CEPU as an Organiser.
Mr Edward’s most recently held permit expired on 28 April 2023 and was returned on 1 May 2023.[1]
In order for Mr Edward to hold a valid entry permit and to be in a position to produce it when requested by an occupier to do so, an application for a new permit to be issued must be made. To issue a permit to Mr Edward, I need to be satisfied that he is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters. The applicable principles for determining right of entry permit applications under s 512 are well settled and not controversial. They need not be restated.
Consideration
In support of its application the CEPU filed declarations by Mr Edward and Mr Alan Hicks, CEPU Secretary, NSW Divisional Branch (the Declarations).
Permit qualification matters – s 513(1)(a), (b), (c), (e) and (f)
According to the Declarations:
· Mr Edward 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 16 January 2023 (s 513(1)(a) of the Act));[2]
· Mr Edward has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[3]
· Mr Edward 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;[4]
· Mr Edward 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);[5]
· Mr Edward has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Edward 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);[6] and
· Mr Edward 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).[7]
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 Edward is a fit and proper person to hold a right of entry permit.
Permit qualification matters – s 513(1)(d)
Mr Edward was the fourth named respondent in Australian Building and Construction Commissioner v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia,[8] in which Mr Edward was ordered to pay a penalty of $2,400 for contravening s 417 of the Act.[9] The CEPU, as the first respondent, was ordered to pay $11,500 for the s 417 contraventions through the actions of Mr Edwards and 2 other employees, organisers, officials and officers of the CEPU, acting in their authority as such.[10]
As to the contravening conduct, Mr Edward was directly or indirectly, knowingly concerned in, or party to each contravention of s 417 of the Act by one or more of the employees of Nilsen (NSW) Pty Ltd to engage in a stoppage of work on 17 and 18 October 2016 at the Sydney Metro Trains Facility, located at Tallawong Road, Rouse Hill before the nominal expiry date of an enterprise agreement applying to these employees had passed and, as a result, by s 550(1) of the Act, Mr Edward contravened s 417. Specifically, in circumstances where Mr Edwards had been or ought to have been aware:
That an enterprise agreement:
ocovering the relevant employees had not reached its nominal expiry date; or
ocovered or likely covered the employment of the relevant employees and which had not reached its nominal expiry date; and
Mr Edwards:
attended the induction room at an on the site where the employees engaged in a stoppage of work on 17 October 2016;
opposed management in instructing the relevant employees in the induction room to cease the stoppage of work and return to work on 17 October 2016; and
stood in the entrance of, and blocked the entry of management to, the induction room where the relevant employees engaged in a stoppage of work on 17 October 2016.
The pecuniary penalty imposed was within the monetary range the parties agreed.[11] The contravening conduct was objectively serious involving multiple employees over multiple days.[12] That the conduct concerned Mr Edwards being knowingly concerned in, or party to each contravention as opposed to organising the contravening industrial action take did not lessen the seriousness of the conduct.[13] Mr Edward had no other instances of similar contravening conduct,[14] and that continues to be the state of affairs, and Abraham J noted the CEPU’s cooperation in Commission conciliation proceedings leading to the relevant employees’ returning to work.[15] Mr Edward’s also made an early admission.[16]
Though serious, this matter is not so significant as to render Mr Edwards a person who is not fit and proper to holder an entry permit under the Act. The contravening conduct occurred nearly 7 years ago, there has been no repetition, nor had there been any known engagement in any other contravening conduct, Mr Edwards has undertaken training since the contravening conduct[17] and more recently in support of this application[18] and his conduct was accepted to be an “uncharacteristic aberration”.[19]
Permit qualification matters – s 513(1)(g)
Mr Edward was convicted in or around 2012 of having breached an apprehended violence order of stalking with intent to intimidate in 2011. The conviction related to two charges which arose from the same set of circumstances, which did not involve entry onto premises, fraud, dishonesty, or damage to property. Both declarations note that Mr Edward has not engaged in any similar conduct before or since, nor has Mr Edward been convicted of any other offences. The period in which this conviction occurred is over 10 years’ ago. Again, given the time that has passed since the conviction and the absence of any further similar conduct, this matter is not so weighty as to render Mr Edwards a person who is not fit and proper to holder an entry permit under the Act.
Except as indicated above, there are no other matters of which I am aware that I consider relevant to the determination of whether Mr Edward is a fit and proper person to hold an entry permit.
Conclusion
For the reasons given above, taking into account the permit qualification matters, I am satisfied that Stewart David Edward 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 Edward is granted.
A permit will be separately issued.
DEPUTY PRESIDENT
[1] RE2020/129
[2] Form F42, Declaration by proposed permit holder dated 16 February 2023 at (a) and ACTU Federal Right of Entry Training Certificate of Completion dated 16 January 2023.
[3] Ibid at (b)
[4] Ibid at (c)
[5] Ibid at (e)
[6] Ibid at (f)
[7] Ibid at (g)
[8] [2020] FCA 1619
[9] Ibid at order 1
[10] Ibid at [5]
[11] Ibid at [30]
[12] Ibid at [38]
[13] Ibid at [37]
[14] Ibid at [39]
[15] Ibid at [48]
[16] Ibid at [49]
[17] Ibid at [51]-[52]
[18] Form F42, Declaration by proposed permit holder dated 16 February 2023 at (a) and ACTU Federal Right of Entry Training Certificate of Completion dated 16 January 2023.
[19] [2020] FCA 1619 at [52]
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