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

[2015] FWC 4820

[2015] FWC 4820

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, 21 JULY 2015

Summary: application for ROE permit - application pending under WHS (Qld) Act for revocation of relevant permit - summary of allegations - maritime industry security - s.513(f) - s.513(g) - s.516 - extension of expiry date for current ROE permit.

[1] On 18 June 2015, application was made by 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.

[2] Mr Rogers’ current right of entry permit expires on 26 July 2015.

[3] 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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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.

[4] On 4 March 2015, DP World Brisbane Pty Limited of Fisherman Islands, Port Drive, Port of Brisbane, Queensland applied to the Queensland Industrial Relations Commission 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.

[5] The grounds on which the application was made are set out in the deposition of the Maintenance Manager for DP World, which is summarised as follows. I hasten to add that these are allegations only and are yet to be tested.

[6] A named Health and Safety Representative (“HSR”) at the workplace on 23 January 2013 granted Mr Rogers access to a part of the workplace that is a secure port area, for which special security clearance is required under the Maritime Transport and Offshore Facilities Security Act 2003 (“Security Act”).

[7] The HSR is said to have known that Mr Rogers did not have a valid Maritime Security Identification Card (MSIC) or security clearance to enter the restricted area, because the HSR faciliated Mr Rogers entry into the workplace using the HSR’s name and using the HSR’s MSIC contrary to the security processes.

[8] Mr Rogers is said to have knowingly entered the secured area without a security clearance by allowing the HSR’s name on the visitor register and allowing the HSR to use his security card to allow Mr Rogers to gain access to the secure workplace, contrary to the procedures in which the HSR had been trained.

[9] It is further alleged that Mr Rogers knew or was indifferent to the fact that he had not undertaken site inductions or complied with other site health and safety procedures.

[10] The HSR and Mr Rogers had discussed Mr Rogers’ attendance at the workplace some 2 hours or more before Mr Rogers’ arrival at the workplace but notified no DP World manager that Mr Rogers was attending the workplace or that there was a safety and health concern or believed to be a safety and health risk to workers.

[11] Mr Rogers was in the workplace for more than 30 minutes before being identified as being present at the workplace by management during this time.

[12] Neither the HSR or Mr Rogers made any attempt to notify management that Mr Rogers had entered the premises or that there was a health and safety concern or risk.

[13] Mr Rogers alleged there was asbestos contaminated materials on site, though this was contrary to the asbetsos register as maintained. When Mr Rogers apparently rummaged through a skip in which he alleged the asbestos materials might reside he was directed not to do so by DP World Management, and questioned about his presence on the site.

[14] It is deposed that when so questioned about his presence on site, Mr Rogers by his voice and his physical posture and proximity to the Maintenace Manager was aggressive and threatening to him, speaking in a raised and angry tone using words such as “fuck” and “shit”.

[15] The Mainenance Manager contends that the asbestos register showed there were no asbestos materials in that area, but despite this Mr Rogers directed employees to leave the workshop area without any prior consultation or discussion with management or identifying which materials were affected.

[16] These claims, which are the subject of the above mentioned application in the QIRC, if made out, may be relevant to my determination of whether Mr Rogers is a fit and proper person to hold a Right of Entry Permit under s.513(f)(i) or (ii) of the Act.

[17] There is a likelihood that any findings made as a consequence of the application may give rise to considerations under s.513(g) of the Act as well.

[18] The application has not been determined as of the date of this decision. The determination of that application may be important in respect of the determination of this application under s.512 of the Act, as it will properly inform me as to the circumstances of one of the mandatory concerns to which I must give consideration before approving an application for a right of entry permit. The deposition which supports the application under the WHS Act also raises issues of relevant importance.

[19] The CEPU has advised me in the following terms:

“Please be advised that the Union has not been given a precise indication of when the QIRC decision might be handed down. However, when the matter was last heard before DP Swan on 28 May 2015, the parties were advised that DP Swan would be on leave for an extended period, returning on 20 July 2015 and a decision would be handed down at some stage after that date.”

[20] Section 516 of the Act provides as follows:

516 Expiry of entry permit

(1) Unless it is revoked, an entry permit expires at the earlier of the following times:

(a) at the end of the period of 3 years beginning on the day it is issued, or that period as extended under subsection (2);

(b) when the permit holder ceases to be an official of the organisation that applied for the permit.

(2) The FWC may extend the period of 3 years referred to in paragraph (1)(a) by a specified period if:

(a) the organisation that applied for the permit (the old permit) has applied for another entry permit for the permit holder; and

(b) the application was made at least 1 month before the old permit would otherwise have expired under that paragraph; and

(c) the FWC is satisfied that the old permit is likely to expire before the FWC determines the application.

(3) The period specified must not be longer than the period that the FWC considers necessary for it to determine the application.

(4) The FWC must not extend the period under subsection (2) if:

(a) the FWC has requested or required the organisation or permit holder to provide copies of records or documents, or to provide any other information, in relation to the application; and

(b) the organisation or permit holder has not complied with the request or requirement; and

(c) the FWC is satisfied that the organisation or permit holder does not have a reasonable excuse. (My emphasis)

[21] If I am to await the determination of the application by DP World in the QIRC, Mr Rogers’ current right of entry permit will have expired. As mentioned above, Mr Rogers’ current permit expires on 26 July 2015.

[22] It is difficult to determine that period of time that will be required to ensure my final determination takes into account the outcome of the application under the WHS Act by DP World, particularly as some time has already elapsed since that application was made.

[23] In the circumstances, I will extend Mr Rogers’ current right of entry permit (RE2012/1443) until this application (RE2015/864) is determined.

[24] Mr Rogers and the CEPU will be provided an opportunity to provide additional materials in support of the application under s.512 of the Act upon the decision of the Queensland Industrial Relations Commission in matter WHS/2013/24 being published.

[25] The CEPU is to advise the Commission on publication of the decision, and to provide a copy of the same as promptly as it comes to hand. This application is adjourned until that time.

SENIOR DEPUTY PRESIDENT

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