Construction, Forestry and Maritime Employees Union

[2024] FWC 2671

[2024] FWC 2671

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.516—Right of entry

Construction, Forestry and Maritime Employees Union

(RE2024/951)

DEPUTY PRESIDENT COLMAN MELBOURNE, 26 SEPTEMBER 2024

Application to extend the entry permit of Joel Shackleton under s 516(2)

1. The Construction, Forestry and Maritime Employees Union (CFMEU) has made an application under s 516(2) of the Fair Work Act 2009 (Act) for the Commission to extend the period of the entry permit of Joel Shackleton, pending the Commission’s determination of an application that the CFMEU has made for a new permit to be issued to Mr Shackleton (RE2024/843). The first permit was issued on 5 October 2021 and expired on 15 September 2024. The application to extend the permit was made on Friday 13 September 2024 and was allocated to my chambers on Monday 16 September 2024. The CFMEU lodged a written submission in support of its s 516(2) application. The union stated that it was content for the Commission to determine the application on the papers.

1. Section 516 deals with the expiry and extension of entry permits. It 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.”

1. The CFMEU submitted that its application for an extension met the requirements of s 516(2). The CFMEU was the organisation that applied for the first permit and had made an application for a new permit for Mr Shackleton. The application for the new permit was made on 15 August 2024, which was at least one month before the first permit would expire. The CFMEU said that the Commission should also be satisfied that the first permit was likely to expire before the application for a new permit could be determined.

1. I agree with the CFMEU that the requirements of s 516(2)(a) to (c) have been met. There is perhaps some doubt about the condition in s 516(2)(c). Because the application under s 516(2) was not allocated to my chambers until after its expiry, there was no occasion for me to be satisfied that the permit was ‘likely to expire’ before the application for the new permit was determined. But had it been allocated to me on the day it was lodged, I would have had this view. Parliament’s concern in s 516(2)(c) was that the extension of a permit should have utility and cover a gap in time between the expiry of one permit and the determination of an application for another one. In my view, s 516(2)(c) does not reflect an intention that, in order to be extended, the first permit must not have expired. It simply recognises that it will usually be the case that there is a question of a likely gap, rather than a certain one. I see no reason why a permit cannot be extended under s 516(2) after it has expired.  

1. I note that on 12 September 2024, the registered organisations services branch of the Commission (ROSB) advised the CFMEU that its application for a new permit for Mr Shackleton was deemed to have been withdrawn because the union had not responded to various messages from the ROSB requesting further information. However, the CFMEU explained to the ROSB that this had been an oversight. The ROSB’s decision deeming the permit application to be withdrawn was reversed the following day. I agree with the CFMEU that this matter does not have the consequence of engaging the exclusion in s 516(4). 

1. The CFMEU advised the Commission that on 6 September 2024 Mr Shackleton was charged by Victoria Police with making threats to kill and to inflict serious injury. Mr Shackleton has been bailed and the matter is listed to be heard in the Melbourne Magistrates’ Court on 22 November 2024. The CFMEU has advised the Commission that Mr Shackleton intends to enter a plea of not guilty. The CFMEU also advised the Commission that on 6 September 2024 Mr Shackleton was suspended from his employment with the CFMEU on full pay until 27 September 2024.

1. The CFMEU submitted that the use of the word ‘may’ in s 516(2) indicates that the decision to extend the period of an entry permit is a discretionary one. It said that the factors that govern the exercise of the discretion are those set out in ss 516(2)(a) to (c), and that each of those factors was satisfied in this case. It contended that the decision of Victoria Police to lay charges against Mr Shackleton and the suspension of Mr Shackleton from his employment with the CFMEU should not lead the Commission to refuse the application under s 516(2), because there was nothing in the text of the section to suggest that these matters should be relevant to the Commission’s consideration of whether to extend a permit.

1. I do not agree that the three matters referred to in ss 516(2)(a) to (c) govern the exercise of the Commission’s discretion to extend a permit. These matters are requirements that must be met in order for the discretion to subsist. The discretion in s 516(2) is at large, subject to the principles, and the provisions of the Act, that bear on the Commission’s decision-making. It is not the case that the discretion to extend a permit will be exercised as a matter of course in cases where there is likely to be a gap between the expiry of a permit and the determination of the application for a new one. It would be wrong to approach the section in this way because Parliament could simply have provided for an automatic temporary rollover of a permit pending the determination of a new permit application, had it intended s 516 to operate in this manner. In deciding whether to exercise the discretion in s 516(2), the Commission must consider the matters it believes to be relevant. Factors that favour the granting of the application are to be weighed against any matters that might tell against it. In this case, Mr Shackleton is employed by the union and no doubt wishes to remain able to exercise a right of entry in the course of performing his duties as a union official. If the permit is not extended, he will not be able to do so, at least until the new permit application is determined.

1. On the other hand, it is appropriate for the Commission to take into account that Mr Shackleton is the subject of criminal charges of threats to kill and to inflict serious injury. I take note of the fact that Mr Shackleton has advised the union that he intends to plead not guilty. If he does so, he will be entitled in the criminal proceedings to the presumption of innocence. However, the offences with which Mr Shackleton has been charged are very serious ones. Evidently, Victoria Police considers that there is sufficient evidence to prosecute the matter. In my view, it is not appropriate to extend the period of an entry permit under s 516(2) when such serious charges against a permit holder remain unresolved. In these circumstances, I consider that Mr Shackleton should not be exercising entry rights unless the Commission determines that he is a fit and proper person to hold a permit, based on the evidence and argument put before it in the application for a new permit.

1. It is not the task of the Commission in this matter to make a preliminary assessment of the separate application that has been made for a new permit, an application which has not been allocated to me. Section 516(2) does not suggest that a permit should only be extended if the application for a new permit appears likely to be granted. This is clear from s 516(2)(c); the Commission must be satisfied that the old permit is likely to expire before the Commission determines the application for a new permit, one way or the other. I would simply note that although the criminal charges against Mr Shackleton do not fall within the ‘permit qualification matters’ listed in s 513(a) to (f), it would appear likely that they will be ‘other matters that the FWC considers relevant’ (s 513(g)). The CFMEU’s application for a new permit for Mr Shackleton is unlikely to be a straightforward one.

1. In conclusion, I do not consider that it is appropriate in this case for the Commission to exercise its discretion under s 516(2) to extend Mr Shackleton’s permit. The application is refused.

DEPUTY PRESIDENT

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