Construction, Forestry and Maritime Employees Union

[2024] FWC 3338

[2024] FWC 3338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Construction, Forestry and Maritime Employees Union

(RE2024/984)

DEPUTY PRESIDENT BELL MELBOURNE, 2 DECEMBER 2024

Application for a right of entry permit for Joseph Edward Pryor – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Pryor is a fit and proper person to hold a permit – permit issued.

1. The Construction, Forestry and Maritime Employees Union (CFMEU) has applied to the Fair Work Commission (Commission) under s 512 of the Fair Work Act 2009 (Cth) (Act) for the issue of a right of entry permit to Joseph Edward Pryor. Mr Pryor is employed by the CFMEU as an organiser and has not previously held an entry permit under the Act.

1. By section 512, the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if the Commission is satisfied that the official is a fit and proper person to hold the entry permit.

1. Section 513(1) sets out various mandatory matters that must be taken into account in deciding whether the official is a fit and proper person. Section 514 sets out circumstances when a permit must not be issued.

1. According to the declaration and related material filed in support of the application, and with reference to the factors in section 513(1) of the Act, Mr Pryor has:

   · Received training by the CFMEU and a certificate to that effect issued on 19 September 2024 for the ‘CFMEU Construction and General Approved Training Package’. That training does not extend to right of entry training for TCF award workers under Subdivision AA of Division 2 of Part 3-4 of the Act, which entry rights would otherwise be exercisable by Mr Pryor under the rules of the CFMEU. Mr Pryor has otherwise received appropriate training about the rights and responsibilities of a permit holder: s 513(1)(a).

   · never been convicted of an offence against an industrial law: s 513(1)(b).

   · never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises or fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property: s 513(1)(c).

   · never been ordered to pay a penalty under this Act or any other industrial law nor has any other person been ordered to pay such a penalty in relation to action taken by him: s 513(1)(d).

   · never had a permit issued to him under Part 3-4 of the Act, or under a similar law of the Commonwealth (no matter when in force), which was revoked or suspended or made subject to conditions: s 513(1)(e).

   · never had cancelled, suspended or conditions imposed upon on a right of entry for an industrial or occupational health and safety purposes that the official had under law: s 513(1)(f).

1. Section 513(1)(g) requires the Commission to take into account any other matters that the Commission considers relevant. As identified by Gostencnik DP[1], a matter will be relevant if it can rationally affect the assessment of whether the proposed permit holder is a fit and proper person to hold an entry permit. Matters that may be relevant and therefore fall to be considered under s 513(1)(g) are matters that relate to the personal characteristics of the proposed permit holder and are pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.

1. One matter that was potentially relevant to my consideration was that Mr Pryor is a respondent (among a number of others) to Federal Court proceedings, which were commenced in about April 2024 and, to my knowledge, remain unresolved. With the assistance of the CFMEU, I obtained the contact details of the applicant in that matter and subsequently wrote via chambers to it. Relevantly, that correspondence noted the permit application before me and drew attention to the court proceedings before stating: “At a very high level only, the Deputy President understands that those proceeding contain allegations of persons engaging in intimidatory conduct having occurred, or hindering or obstructing ballots or compromising ballot secrecy. It is not clear how those matters are framed (if at all) against Mr Pryor. The Deputy President has not seen the pleadings for that court proceeding and, in that context, does not know the detail of any allegations against Mr Pryor….”. The employer was invited to make any submissions. The employer did not do so.

1. I accept that the information disclosed in the declarations filed in support of the applicant is accurate and correct. These matters weigh in favour of a conclusion that Mr Pryor is a fit and proper person to hold a right of entry permit. There was no other matter that I consider appropriate that causes me to draw any different conclusion. The provisions of section 514 were not relevant in the matter before me.

Conclusion

1. Taking into account the permit qualification matters in section 513, for the reasons given, I am satisfied that Joseph Edward Pryor is a fit and proper person to hold an entry permit with the following condition.

“Joseph Edward Pryor not exercise rights under Subdivision AA of Division 2 of Part 3-4 of the Act until he has completed appropriate training in relation to that subdivision and he has filed a copy of the training completion certificate in the Fair Work Commission.”

1. The application by the CFMEU for an entry permit to be issued to Mr Pryor is granted with the above condition.

DEPUTY PRESIDENT

[1]     Application by Construction, Forestry and Maritime Employees Union (105N) for an Entry Permit for Corey Steven Taylor [2024] FWC 1979 at [3]. See also at [2] regarding the Deputy President’s observations about the applicable principles under ss. 512 and 513.

Printed by authority of the Commonwealth Government Printer

<PR781895>