Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch

[2013] FWCD 6478

[2013] FWCD 6478

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

(RE2013/1382)

MR ENRIGHT	MELBOURNE, 15 OCTOBER 2013
Background

[1] On 6 August 2013, an application under s. 512 of the Fair Work Act 2009 (the Act) dated 5 August 2013 was lodged in the Fair Work Commission (the Commission) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a permit to enter and inspect premises for the following official:

Christopher Lynch RE2013/1382

[2] The application in this matter was supported by declarations from Mr Peter Simpson, the relevant Committee of Management member, and Mr Christopher Lynch, the proposed permit holder, dated 5 and 6 August 2013 respectively (the declarations). Mr Simpson is the Divisional Branch Secretary of the Queensland Divisional Branch of the Electrical, Energy and Services Division of the CEPU. Mr Lynch is an Organiser within the branch.

[3] I acknowledge receipt on 7 August 2013 of a permit returned to the Commission by Mr Lynch in matter RE2010/3571.

[4] During the course of considering the application it came to the attention of the Commission that on 10 July 2013 the CEPU had been ordered to pay a pecuniary penalty of $15,000 pursuant to section 49(1)(a) of the Building and Construction Industry

Improvement Act 2005 (Cth) (the BCII Act) in Director, Fair Work Building Industry

Inspectorate v Construction, Forestry, Mining and Energy Union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of

Australia and Others (FWB v CFMEU & Ors) in the Federal Circuit Court. The penalty

was in relation to alleged action, taken in part by Mr Lynch, which contravened section 38
of the BCII Act.

[5]        The declarations did not disclose the penalty imposed in FWB v CFMEU & Ors.

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[6] On 12 August 2013 the Commission received correspondence from the CEPU, stating that facts relating to section 513(1)(d) of the Act were inadvertently omitted from the declarations, and that supplementary declarations would be lodged with the Commission, to include the omitted facts and provide an explanation for the omission.

[7] On 15 August 2013, the supplementary declarations of Messrs Simpson and Lynch, dated 13 and 15 August respectively, were lodged with the Commission. The supplementary declarations disclosed the penalty imposed on the CEPU as a respondent in FWB v CFMEU

& Ors. The supplementary declarations stated that subsequent to the earlier declarations, it

had come to the attention of Messrs Simpson and Lynch that they had neglected to include a relevant matter. The supplementary declarations were not statutory declarations, and did not provide an explanation for the omission of the penalty in the initial declarations.

[8] On 4 September 2013 the Commission wrote to Mr Simpson and requested statutory

declarations of Messrs Simpson and Lynch that referred to the penalty imposed on the CEPU,
and provided reasons for the omission of the matter in the declarations.

[9] On 12 September 2013 statutory declarations of Mr Simpson and Mr Lynch, dated 10 and 12 September 2013 respectively (the statutory declarations), were lodged in the Commission. The statutory declarations disclosed the relevant penalty imposed on the CEPU in FWB v CFMEU & Ors, and provided explanations for the initial omission.

Legislative Framework

[10] Under s.512 of the Act, 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).

[11]      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

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(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.”

[12] 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.”

[13] In Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia1, Delegate Nassios made the following observations

regarding the objects of Part 3–4 of the Act with respect to an application for an entry permit:
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“[21] The objects of Part 3-4 are set out in section 480 of the Act. The object of right of entry provisions is to establish a framework for officials of organisations to enter premises while balancing competing rights of organisations, employees and occupiers/employers. Organisations have the right to represent their members in the workplace, to hold discussions and to investigate suspected contraventions of relevant laws. Balanced against these rights are the rights of occupiers and employers ‘to go about their business without undue inconvenience’. The objects set out in section 480 of the Act emphasise the mutual rights and responsibilities of participants in the system in much the same way as the objects under the Workplace Relations Act 1996. Earlier decisions regarding the granting of right of entry permits under the Workplace Relations Act 1996 have made reference to the ‘important contextual issue’ of the nature of the power that is exercised by permit holders. In Vivienne Daniels v Joe Patti

& Anor, Munro J observed that:

Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility, and avoidance of unnecessary obstruction in the exercise of the powers under Division 11A are not only to be expected, they are a statutory condition of the powers being retained.

The observations of Munro J apply equally to the granting of right of entry permits

under the legislative regime set out in the Fair Work Act 2009.”2

[14] Although I am not bound by the above views I find they are a useful context for considering an application for an entry permit.

Permit Qualification Matters

[15]      I will consider each of the permit qualification matters separately.

Training about rights and responsibilities

Section 513(1)(a) of the Act requires me to take into account whether Mr Lynch has received appropriate training about the rights and responsibilities of a permit holder. Mr Lynch undertook such training on 24 August 2010. The content of the training material was approved by Fair Work Australia on 1 September 2009. Mr Lynch’s previous permit which was issued in RE2010/3571 was returned to the Commission within seven days of its expiry, as required by s.517(1)(c) of the Act. There is no evidence before me to suggest that Mr Lynch has failed to exercise his rights and responsibilities as a permit holder.

Conviction/s against an industrial law

[16] Section 513(1)(b) of the Act requires me to take into account whether Mr Lynch has ever been convicted of an offence against an industrial law. The declarations do not disclose any such convictions against Mr Lynch. There is no other evidence before me that suggests otherwise.

Conviction/s involving fraud, dishonesty or intentional use of violence

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[17] Section 513(1)(c) of the Act requires me to take into account whether Mr Lynch has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. The declarations do not disclose any such convictions against Mr Lynch. There is no other evidence before me that suggests otherwise.

Order/s to pay a penalty under an industrial law in relation to action taken by the official

[18] Section 513(1)(d) of the Act requires me to have regard to whether Mr Lynch, or any other person, has ever been ordered to pay a penalty under the Act or any other industrial law, in relation to action taken by Mr Lynch. As noted at paragraph 4 of this decision, the CEPU was ordered to pay a penalty under the BCII Act in FWB v CFMEU & Ors partly as a result of the alleged conduct of Mr Lynch. This permit qualification matter will be considered in detail later in this decision.

Permit/s revoked, suspended or made subject to conditions under Commonwealth law

[19] Section 513(1)(e) of the Act requires me to take into account whether a permit issued to Mr Lynch under Part 3–4 of the Act, or under a similar law of the Commonwealth (no matter when in force), has been revoked, suspended or made subject to conditions. The declarations do not disclose that any such permits issued to Mr Lynch have ever been revoked, suspended or made subject to conditions. There is no other evidence before me that suggests otherwise.

Right of entry revoked, suspended or made subject to conditions or a disqualification imposed under State or Territory industrial law or State or Territory OHS law

[20] Section 513(1)(f) of the Act requires me to take into account whether a court, or other person or body, under a State or Territory industrial law or State or Territory occupational health and safety (OHS) law has cancelled, suspended or imposed conditions on a right of entry for industrial or OHS purposes that Mr Lynch had under that law or disqualified Mr Lynch from exercising, or applying for, a right of entry for industrial or OHS purposes under that law. The declarations do not disclose any cancellation, suspension or imposition of conditions on a right of entry Mr Lynch has held for industrial or OHS purposes by any court, or other person or body, under a State or Territory industrial law or an OHS law. Further, the declarations do not disclose that Mr Lynch has been disqualified by any court, or other person or body, under a State or Territory industrial law or an OHS law, from exercising, or applying for, a right of entry for industrial or OHS purposes. There is no other evidence before me that suggests otherwise.

Any other matter the Commission considers relevant

[21] Section 513(1)(g) of the Act permits the Fair Work Commission to have regard to

“any other matters that the FWC considers relevant” in determining whether the proposed
permit holder is a “fit and proper person”.

[22] As noted at paragraph [6] of this decision, on 12 August 2013 the Commission received correspondence from the CEPU, stating that the initial declarations did not disclose the penalty ordered to be paid in FWB v CFMEU & Ors. Following correspondence between [2013] FWCD 6478

FWBC and the CEPU, the statutory declarations filed on 12 September 2013 disclosed the penalty imposed on the CEPU as a respondent in FWB v CFMEU & Ors. Mr Simpson declared that the omission occurred as a result of misreading paragraph (d) of the original declaration and thereby not realising that the penalty order in FWB v CFMEU & Ors against the CEPU was relevant to paragraph (d). Mr Lynch declared that he was not involved in the settlement of the matter in FWB v CFMEU & Ors and that at the time of signing the original declaration he was unaware of the penalty order against the CEPU in respect of alleged conduct undertaken by him. This permit qualification matter will be considered in detail later in this decision.

[23] The correspondence the Commission received from the CEPU on 12 August 2013, and referred to in the preceding paragraph, was addressed to a Senior Lawyer of the FWBC. The final paragraph of that letter states “The balance of the contents of your letter are noted but not agreed. In particular, it remains our view that Mr Lynch is a fit and proper person to hold a permit.” The supplementary declarations filed on 15 August 2013 both declare that in the view of Mr Simpson and Mr Lynch, Mr Lynch remains a fit and proper person to hold a right of entry permit. To date, there is no evidence available to me that suggests otherwise.

[24]      I have also taken into consideration the objects of Part 3–4 of the Act.

Consideration

[25]      In Australian Broadcasting Tribunal v Bond (1990)3 (Tribunal v Bond) the High Court

considered the phrase “fit and proper person” in the context of licensing under the now repealed Broadcasting Act 1942. In that decision, Toohey and Gaudron JJ made the following statement:

“The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides an indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”4

[26] I accept that the expression ‘fit and proper person’ is coloured somewhat by the context in which it appears and that it should be construed by having regard to the rights and responsibilities associated with the grant of an entry permit. Parliament has expressed an intention that the Commission “must” take into account the permit qualification matters set out in s.513(1) of the Act to “ensure that only appropriate persons are conferred with the significant rights to access premises”.5 Although previous judicial authorities regarding the meaning of particular terms applied in legislation, such as the exposition of the term “fit and proper person” in Tribunal v Bond are binding in similar factual circumstances,6 care must be exercised lest such judicial expositions replace the actual statutory text.7

[2013] FWCD 6478

Penalties imposed under the BCII Act

[27] As outlined at paragraph [4] of this decision, the CEPU has been ordered to pay a penalty under the BCII Act as a result of alleged conduct of Mr Lynch. To be satisfied that this is a penalty relevant to s.513(1)(d) of the Act, the relevant provisions of the BCII Act must be industrial laws for the purpose of that provision.

[28]      ‘Industrial law’ is defined at s.12 of the Act:

“12 The Dictionary...

industrial law means:

(a) this Act; or

(b) the Fair Work (Registered Organisations) Act 2009; or

(c) a law of the Commonwealth, however designated, that regulates the

relationships between employers and employees; or

(d) a State or Territory industrial law.”

[29] I am not aware of any authorities that have determined whether the BCII Act was, or

is, or is not a law of the Commonwealth that “regulates the relationships between employers
and employees”.

[30]      In Dowling v Fairfax Media Publications Pty Ltd8 (Dowling v Fairfax), Justice Jagot

considered whether the Occupational Health and Safety Act 2000 (NSW) and the Workplace

Injury Management and Workers Compensation Act 1998 (NSW) were ‘industrial laws’ for

the purposes of the repealed s.779 of the Workplace Relations Act 1996 (the WR Act). Her
Honour observed that:
1.

“[79] WorkCover has a range of enforcement powers under legislation vesting it with functions including the taking of criminal proceedings, the issuing of penalty notices, the preparation of industry codes of practice, powers to issue investigation notices, improvement notices and prohibition notices, powers to take proceedings for offences against such notices, and powers to include directions in such notices…

[80] The legislation in respect of which WorkCover has functions includes issues relating to the relationships between employers and employees and not merely, as the respondent submitted, regulating the environment within which such relationships operated. For example, s 46 of the Workplace Injury Management and Workers Compensation Act requires employers to participate and co-operate in the establishment of an injury management plan required to be established for an injured worker and to comply with the plan. Section 47 imposes reciprocal obligations on employees. Section 48 imposes an obligation on an injured employee to return to work and s 49 imposes a reciprocal obligation on the employer to provide suitable work for an injured employee. There are many other examples of such mutual or related

[2013] FWCD 6478

obligations as between employers and employees in the legislation vesting functions
in WorkCover.

[81] Having regard to these matters I am satisfied that the legislation vesting functions in WorkCover, in a number of respects, regulates the relationship between employers and employees. The legislation is thus within the definition of ‘industrial law’ in s. 779.”9

[31] The BCII Act vested the FWBC (formerly known as the ABCC) with enforcement powers including the investigation and prosecution of breaches of its provisions10 and specifically proscribed certain conduct,11 and created criminal offences.12 Although the BCII Act adopts the concept of “building industry participants”13 and generally imposes obligations

on “persons” rather than “employers” and “employees”, it does appear to regulate the

relationship between employers and employees engaged in “building work” 14 in a number of

significant ways.

[32] As stated in the Order of Judge Burnett in FWB v CFMEU & Ors, the relevant

provision of the BCII Act that was contravened by the CEPU is s.38. An extract of that
provision is set out below:

“38 Unlawful industrial action prohibited

A person must not engage in unlawful industrial action

[33] For the purposes of s.38 ‘unlawful industrial action’ must be ‘industrially-motivated’ which is defined at s.36 of the BCII Act:

“36 Definitions...

(1) In this Chapter, unless the contrary intention appears:

industrially-motivated means motivated by one or more of the following purposes, or

by purposes that include one or more of the following purposes:

(a) supporting or advancing claims against an employer in respect of the

employment of employees of that employer;

(b) supporting or advancing claims by an employer in respect of the

employment of employees of that employer;

(c) advancing industrial objectives of an industrial association;

(d) disrupting the performance of work.”

[34] Whilst regulation in the above provisions is not limited to only employees and employers it does appear to regulate the industrial context of the building and construction industry, including enterprise bargaining and industrial action, an important relationship between employers and employees. Although the mere use of the term ‘industrial’ should not lead to an immediate finding that a provision is an industrial law for the purposes of the Act, it is clear from the above provisions that the industrial context being regulated affects

[2013] FWCD 6478

relations between employers, employees and industrial organisations, even where the person to whom the provision may apply is not an employer or employee themselves. The term industrial law, in my view, applies to at least the provisions of the BCII Act under which penalties were imposed on the CEPU in FWB v CFMEU & Ors.

[35] Even if it is ultimately determined that the relevant provision of the BCII Act was not an industrial law as contemplated by s.513(1)(d) of the Act, the imposition of a penalty under the BCII Act is, in any event, a matter to which I could relevantly turn my mind under s.513(1)(g) of the Act, since the alleged conduct occurred in an industrial context and arose while Mr Lynch was acting in his role as an official of the CEPU.

[36]      I now turn to the particulars of the penalty imposed.

FWB v CFMEU & Ors

[37] The Order in FWB v CFMEU & Ors dealt with three separate instances involving industrial conflict which took place on two separate public construction projects in which Brookfield Multiplex Constructions Pty Ltd (Brookfield Multiplex) was the principal contractor. The industrial conflict was associated with a campaign to prevent the practice of ‘sham contracting’ and allegedly led to employees of Brookfield Multiplex taking industrial action at the site of one project on 28 February and 1 March 2011 and at the site of another project on 28 February 2011. In addition to Mr Lynch and the CEPU, the respondents included the Construction, Forestry, Mining and Energy Union (CFMEU) and four officials of the CFMEU.

[38] The Order of Judge Burnett did not impose any penalties upon Mr Lynch, or upon the four individual respondents from the CFMEU.

[39] The CFMEU and the CEPU admitted in a ‘Statement of Agreed Facts’ to contravening section 38 of the BCII Act on 28 February 2011.

[40] The CFMEU and the CEPU also admitted in the Statement of Agreed Facts that the alleged conduct of Mr Lynch, amongst others, was “constitutionally-connected action”, as defined by section 36(1) of the BCII Act. The CFMEU and the CEPU also admitted that the alleged conduct was “industrially motivated”, as defined by section 36(1) of the BCII Act “because it was motivated for purposes of ..... advancing the industrial objectives of an industrial association, being the Sham Contracting Campaign”.

[41] The CEPU also admitted in the Statement of Agreed Facts that the alleged conduct of Mr Lynch was taken to be contravening conduct of the CEPU and that it was taken on behalf of the CEPU.

[42] The parties agreed on the quantum of penalties to be imposed on each respondent. In accordance with that agreement a penalty of $50,000 was imposed on the CFMEU, and a penalty of $15,000 was imposed on the CEPU. Section 38 of the BCII Act was a Grade A civil penalty provision which at the time attracted a maximum penalty of $110,000 for a body corporate and $22,000 for a natural person. 15 The penalties were issued in a consent order by Judge Burnett in the Federal Circuit Court of Australia, on 10 July 2013.

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[43] There is no evidence before me that any further penalties, orders or decisions have been issued against the CEPU by any Court in relation to the matter of FWB v CFMEU &

Ors.

[44] In the statutory declaration of Mr Lynch, which is referred to in paragraph [9] of this decision, Mr Lynch stated that he was not involved in the settlement of the matter in FWB v

CFMEU & Ors; and that he denies the allegations that were made against him in the matter.

He stated that he does not consider that he is bound by the admissions made by the CEPU.

[45] The alleged conduct relevant to the penalty imposed on the CEPU in FWB v CFMEU & Ors occurred more than two years ago. There is no evidence before me that Mr Lynch has

been ordered to pay a penalty for, or that he has been found to have contravened, any of the

items set out in Part 3–4 of the Act.

Any other matters that the Commission considers relevant

[46] Section 513(1)(g) provides the Commission with a broad discretion to take into account any other matters it considers relevant. Such a discretion should not be taken to mean any matter, but only those that are relevant to determining if the proposed permit holder is a ‘fit and proper person’.16 The proper construction should be determined by examining the

provision in the context of the Act as a whole. Relevant considerations in this regard include

the context, scope and purposes of the Act.17

Non-disclosure of the matter of FWB v CFMEU & Ors

[47] As noted above, the initial application and the initial declarations in support of the application made no mention, nor provided any indication of the penalty imposed in FWB v

CFMEU & Ors. Indeed the declarations provided that Mr Lynch has:

“(d)...never been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official nor has any other person been ordered to pay a penalty in respect of such action”

[48] In “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”

known as the Australian Manufacturing Workers’ Union (AMWU)-Victorian Branch18,
Delegate Nassios expressed the following view:

“[14] Thoroughness by an applicant in disclosing adverse issues is paramount in assisting a Delegate to make an informed judgment as to whether an application for an entry permit is a fit and proper person. Thoroughness however can only be gauged in relation to each individual applicant’s circumstances.”

[49] This obligation has been defined as a ‘duty of full and frank disclosure’.19 Entry permits are issued to officials of organisations on the basis of the contents of declarations made by proposed permit holders and members of the Committee of Management of applicant organisations.

[50] As noted above, the status of the BCII Act as an ‘industrial law’ for the purposes of subsection 513(1)(d) of the Act has yet to be authoritatively determined. Nevertheless, it would have been prudent at the very least for Mr Simpson to turn his mind to whether the

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matter of FWB v CFMEU & Ors should have been disclosed, as a matter in which the CEPU
had been ordered to pay a penalty under an industrial law, when making his declaration.

[51] Alternatively, the matter of FWB v CFMEU & Ors could have been disclosed elsewhere in the declarations or application as it is clearly a relevant matter for the purposes of section 513(1)(g) of the Act. Although the template declaration contained with the form prescribed by the Fair Work Australia Rules 201020 for making an application under section 512 of the Act explicitly lists only matters contained within paragraphs (a) to (f) of subsection 513(1) of the Act, this does not prevent an applicant organisation or proposed permit holder from disclosing other potentially adverse issues beyond such matters within the declarations or elsewhere in the application.

[52] Given this, I regard the failure to disclose the matter of FWB v CFMEU & Ors to be a somewhat relevant matter for the purposes of section 513(1)(g) of the Act in determining Mr Lynch’s status as a ‘fit and proper’ person to hold an entry permit. By not adequately addressing all of the permit qualification matters set out in section 513(1) of the Act, Mr Lynch and the CEPU may have fallen short of the kind of full and proper disclosure which should reasonably be expected.

[53] On the other hand, the statutory declarations of Messrs Simpson and Lynch each provide an account of reasons regarding the failure to disclose the matter of FWB v CFMEU

& Ors. They include that Mr Lynch was unaware of the matter of FWB v CFMEU & Ors at

that time, and had not been a party to the settlement of the matter. Mr Simpson’s statutory declaration stated that he misread the wording in paragraph (d) of the proforma declaration, and that he:

“mistakenly had not appreciated that the penalty orders made in matter BRG1008/2012

against the CEPU were caught by paragraph (d)”.

[54] In the absence of any evidence before me which contradicts this version of events, I accept these reasons for the failure to disclose the penalty imposed in FWB v CFMEU & Ors.

Objects of Part 3-4 of the Act

[55] In exercising my discretion under s.512 of the Act to determine whether or not to issue

an entry permit to Mr Lynch, I have considered the objects of Part 3–4 set out at paragraph
[11] of this decision.

[56] I have also considered the objects set out in s.480(a)–(b) of the Act in relation to the rights of registered organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions and the rights of employees to receive information and representation from officials of such organisations.

[57] I have also taken into account the fact that Christopher Lynch has been a permit holder under the Act and its predecessor legislation and an official of the CEPU since 2010.

Conclusion

[58] I am satisfied that Mr Lynch is a ‘fit and proper person’ to hold a right of entry

permit, taking into account the permit qualification matters for the purpose of s.512 of the
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Act.

[59]      Accordingly, I issue a permit.

[60]       The permit is attached.

DELEGATE OF THE FAIR WORK COMMISSION

FAIR WORK COMMISSION

Printed by authority of the Commonwealth Government Printer

<Price code A, PR541161>

Endnotes

1 [2011] FWAD 3518.

2 Ibid at [21].

3 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

4 Ibid at 380 (per Toohey and Guadron JJ).

5 Explanatory Memorandum, Fair Work Bill 2008, 2041.

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6 Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32.

7 Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390, 407-409 (per Windeyer J).

8 Dowling v Fairfax Media Publications Pty Ltd [2008] FCA 1470.

9 Ibid at [79]-[81].

10 Building and Construction Industry Improvement Act 2005 ch 7.

11 Building and Construction Industry Improvement Act 2005 ch 5.

12 Building and Construction Industry Improvement Act 2005 ss 52(6) & 65(2).

13 Building and Construction Industry Improvement Act 2005 s 3.

14 Building and Construction Industry Improvement Act 2005 s 5.

15 Building and Construction Industry Improvement Act 2005 s 49(2); Crimes Act 1914 s 4AA.

16 Construction, Forestry, Mining and Energy Union [2012] FWAD 2545.

17 Ibid at [21]-[30].

18 [2010] FWAD 10039.

19 For example see “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the

Australian Manufacturing Workers’ Union (AMWU) - Victorian Branch [2010] FWAD 10039 and Re Communications,

Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2011] FWAD

3518.

20 Form 42 Application for an Entry Permit contained in Fair Work Australia Rules 2010 sch 2.