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

[2015] FWC 8313

[2015] FWC 8313

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 - Electrical, Energy and Services Division - Queensland Divisional Branch
(RE2015/864)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 3 DECEMBER 2015

Summary: Right of Entry Permit application – extension order under s.516 revoked – application granted.

[1] On 18 June 2015, application was made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) under s.512 of the Fair Work Act 2009 (“the Act”) for a renewal of a right of entry permit for Mr Garry John Rogers, an organiser for that union. Mr Rogers’ current right of entry permit was to have expired on 26 July 2015.

[2] For reasons set out in my decision in [2015] FWC 4820 I extended the operation of Mr Rogers’ right of entry permit (by Order PR569461). I did so under s.516 of the Act.

[3] The extension of the right of entry permit arose because at the time I was considering the application under s.512 of the Act, proceedings had commenced in the Queensland Industrial Relations Commission [WHS/2013/24] under s.138 of the Work Health and Safety Act 2011 (“the WHS Act”) for a WHS entry permit held by Mr Rogers to be revoked. The proceedings arose from an application made on 4 March 2013, by DP World Brisbane Pty Limited of Fisherman Islands, Port Drive, Port of Brisbane, Queensland. Such proceedings may have had implications for the application for the purposes of s.513(1)(g) of the Act, so the application under s.512 of the Act was effectively adjourned (with Mr Rogers’ current permit being extended) subject to the completion of the proceedings in [WHS/2013/24].

[4] The decision in [WHS/2013/24] was handed down in respect of the above application on 6 November 2015. Mr Rogers was found to have no case to answer and the application was dismissed.

[5] Accordingly, I now turn to consider the application before me under s.512 of the Act.

[6] For the purposes of determining whether Mr Rogers is a fit and proper person for the purposes of renewing his right of entry permit, I am required to take into account the matters set out in s.513 of the Act. Section 513 of the Act provides as follows:

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] I have examined the declarations by the CEPU and Mr Rogers in support of Mr Rogers’ application for a right of entry permit. The declarations are unexceptional and disclose no contraventions of industrial legislation or unlawful conduct or otherwise (for the purposes of s.513 of the Act).

[8] Mr Rogers has completed an approved Federal Right of Entry training course (and did so most recently on 30 June 2015).

[9] No matters arise for the purposes of s.513(1)(g) of the Act.

Conclusion

[10] In view of the above discussion, I consider that Mr Rogers is a fit and proper person to hold a right of entry permit. The new entry permit will come into effect on 9 December 2015.

[11] As per my Order PR569461 issued on 21 July 2015 (as referred to above), the current entry permit held by Mr Rogers (RE2012/1443) will expire on 9 December 2015. Mr Rogers is to return his current permit prior to the issue of the new permit.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR574597>