Construction, Forestry and Maritime Employees Union
[2024] FWC 1929
•25 JULY 2024
| [2024] FWC 1929 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Construction, Forestry and Maritime Employees Union
(RE2024/706)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 25 JULY 2024 |
Application for a right of entry permit for Jesse Eric Strand – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Strand is a fit and proper person to hold a permit – permit issued.
The Construction, Forestry and Maritime Employees Union (CFMEU) applies under s 512 of the Fair Work Act 2009 (Cth) (Act) for a right of entry permit to be issued to its employee, Jesse Eric Strand. Mr Strand is a State Organiser of the CFMEU – New South Wales Divisional Branch.[1]
Mr Strand was issued an entry permit on 4 August 2021,[2] which will expire on 4 August 2024.
The applicable principles for determining right of entry permit applications under s 512 of the Act are well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder, the subject of an application for a permit, is assessed taking into account the permit qualification matters set out in s 513(1), having regard to the rights a permit holder can exercise under Part 3-4, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in some abstract sense. The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit and exercise the powers, functions and responsibilities attached to holding a permit.[3] The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.
The permit qualification matters contained in s 513(1) of the Act are mandatory considerations which must be taken into account, and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others,[4] that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s 513 means that each of the matters must be treated as a matter of significance in the decision-making process,[5] which must be evaluated and accorded appropriate weight.[6]
The weight given to a particular matter is ultimately a matter for the Commission, however in ascribing weight to each matter care should be taken to ensure that a relevant factor of great importance is given adequate weight and that excessive weight to a relevant factor of no great importance is not ascribed.[7]
Having regard to the structure and content of s 513 of the Act, in deciding whether a proposed permit holder is a fit and proper person to hold an entry permit, all the permit qualification matters identified in s 513(1) of the Act must be taken into account. The absence of, for example, a conviction of a proposed permit holder of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty is relevant in the assessment, just as a conviction of a proposed permit holder for such an offence would be. The absence of such a conviction must be accorded appropriate weight.
Section 513(1)(g) of the Act requires the Commission to take into account any other matter it considers relevant. 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.
I turn to consider the application.
Consideration
In support of its application, the CFMEU filed declarations by Mr Strand and Darren Greenfield, Divisional Branch Secretary of the CFMEU – New South Wales Divisional Branch (Declarations).
According to the Declarations and the supporting material, Mr Strand has:
·received appropriate training about the rights and responsibilities of a permit holder by undertaking two training courses in person on the subject of federal right of entry conducted by the CFMEU on 28 June 2024 (s 513(1)(a) of the Act).[8] One of the training courses included training about exercising rights under Subdivision AA of Division 2 of Part 3-4 of the Act;
·never been convicted of an offence against an industrial law (s 513(b) of the Act);[9]
·never been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him, nor has any other person (s 513(1)(d) of the Act);[10]
·not had any entry permit issued under Part 3-4 of the Act or similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permits (s 513(1)(e) of the Act);[11]
·not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Strand held under a State or Territory industrial law or a State or Territory occupational health and safety law (s 513(1)(f)(i) of the Act);[12] and
·not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s 513(1)(f)(ii) of the Act).[13]
I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. These matters weigh in favour of a conclusion that Mr Strand is a fit and proper person to hold a right of entry permit.
Permit qualification matter – s 513(1)(c)
The Declarations disclose that Mr Strand was convicted of two counts of common assault following an altercation with two males after a night of drinking on 1 May 2014.[14] Mr Strand pleaded guilty to both charges, received an 8 month suspended sentence and was ordered to pay a fine of $1,500 for each charge.[15]
These matters were considered in a decision regarding a previous entry permit application of Mr Stand.[16] While convictions for offences involving intentional use of violence against another person weigh against a conclusion that Mr Stand is a fit and proper person to hold an entry permit, the weight that is to be ascribed is to be informed by the following matters:
the contravening conduct occurred over 10 years ago;
Mr Stand admitted the contraventions;
Mr Strand completed his suspended sentence without further incident;[17]
Mr Strand demonstrated remorse for his actions;[18] and
Mr Strand voluntarily participated in a victim-offender type program, sought counselling to discuss his drinking and decided to stop drinking excessively.[19]
Taken together, although the offending in which Mr Strand engaged is serious, viewed in its proper context today, the convictions are not sufficiently significant as to outweigh the other matters which must be considered in the balance, which all tend to favour a conclusion that Mr Strand is today a fit and proper person to hold a right of entry permit. These considerations reduce the weight that might otherwise be ascribed to the permit qualification matter disclosed.
Permit qualification matters – s 513(1)(g)
Pursuant to s 513(1)(g) of the Act, I must take into account whether there are any other matters that I consider relevant to the determination of whether Mr Strand is a fit and proper person to hold an entry permit.
The Declarations disclose that, on 24 August 2016, Mr Strand faced court in relation to an incident that occurred in Coogee in August 2016.[20] The Declarations disclose that Mr Strand was trying to assist and control his friend, who had been ejected from a venue due to intoxication and was abusing two police officers.[21] The Declarations disclose that when the police arrested his friend, Mr Strand approached the police officers due to his concern about his friend’s already injured arm and was then arrested along with his friend.[22]
The Declarations disclose that Mr Strand pleaded guilty to:
behaving in an offensive manner in or near a public place and was handed down a conviction with no penalty;
using offensive language in or near a public place and was ordered to pay a fine of $150; and
resisting an officer in the execution of their duty and was given a 12 month good behaviour bond.
These matters were also considered in a decision regarding a previous entry permit application of Mr Stand.[23] The weight that is to be ascribed to this negative matter is to be informed by the following matters:
the contravening conduct nearly 8 years ago;
Mr Stand admitted the offending;
Mr Strand completed his good behaviour bond without further incident;[24]
Mr Strand has been a permit holder under the Act since 6 August 2018;[25]
Mr Strand has been a work health and safety entry permit holder under the Work Health and Safety Act 2011 (NSW) since 19 June 2019;[26]
Mr Strand demonstrated contrition and remorse for his actions;[27] and
Mr Strand has not reoffended.
Although the offending in which Mr Strand engaged is serious, viewed in its proper context today, the offending is not sufficiently significant as to outweigh the other matters which must be considered in the balance, which all tend to favour a conclusion that Mr Strand is today a fit and proper person to hold a right of entry permit.
Conclusion
Taking into account the permit qualification matters, and for the reasons earlier stated, I am satisfied that Jesse Eric Strand is a fit and proper person to hold an entry permit. The application by the CFMEU for an entry permit to be issued to Mr Strand is granted.
A permit will be separately issued.
DEPUTY PRESIDENT
[1] Form F42, Declaration by Jesse Eric Strand dated 8 July 2024
[2] Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch [2021] FWC 4770 (4 August 2021)
[3] Maritime Union of Australia [2014] FWCFB 1973 at [23]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522 at [32]
[4] [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen [1989] HCA 39, (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]
[5] Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836, (1999) 94 FCR 561 and National Retail Association v Fair Work Commission [2014] FCAFC 118, (2014) 225 FCR 154
[6] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184 (cited with approval by Hely J in Elias v Federal Commissioner of Taxation [2002] FCA 845, (2002) 123 FCR 499 at [62])
[7] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15], p 41
[8] Form F42, Declaration by Jesse Eric Strand dated 1 July 2024 at (a); Form F42, Declaration by Darren Greenfield dated 1 July 2024 at 4; Letter from Leah Charlson, Legal/Industrial Officer, CFMEU to Jesse Strand dated 28 June 2024 with the subject ‘Fair Work Act Right of Entry Training Course’; Letter from Leah Charlson, Legal/Industrial Officer, CFMEU to Jesse Strand dated 28 June 2024 with the subject ‘TCF Award Workers Right of Entry Training Course – Fair Work Act 2009’
[9] Form F42, Declaration by Jesse Eric Strand dated 1 July 2024 at (b); Form F42, Declaration by Darren Greenfield dated 1 July 2024 at 2(a)
[10] Form F42, Declaration by Jesse Eric Strand dated 1 July 2024 at (d); Form F42, Declaration by Darren Greenfield dated 1 July 2024 at 2(c)
[11] Form F42, Declaration by Jesse Eric Strand dated 1 July 2024 at (e); Form F42, Declaration by Darren Greenfield dated 1 July 2024 at 2(d)
[12] Form F42, Declaration by Jesse Eric Strand dated 1 July 2024 at (f); Form F42, Declaration by Darren Greenfield dated 1 July 2024 at 2(e)
[13] Form F42, Declaration by Jesse Eric Strand dated 1 July 2024 at (g); Form F42, Declaration by Darren Greenfield dated 1 July 2024 at 2(f)
[14] Form F42, Declaration by Jesse Eric Strand dated 1 July 2024 at (c); Form F42, Declaration by Darren Greenfield dated 1 July 2024 at 2(b)
[15] Ibid
[16] Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch [2018] FWC 4489 (31 July 2018) at [17]-[22]
[17] Form F42, Declaration by Jesse Eric Strand dated 1 July 2024 at (c); Form F42, Declaration by Darren Greenfield dated 1 July 2024 at 2(b)
[18] Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch [2018] FWC 4489 at [20]
[19] Ibid at [19]-[20]
[20] Form F42, Declaration by Jesse Eric Strand dated 1 July 2024 at (h); Form F42, Declaration by Darren Greenfield dated 1 July 2024 at 2(g)
[21] Ibid
[22] Ibid
[23] Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch [2018] FWC 4489 (31 July 2018) at [17]-[22]
[24] Ibid
[25] Ibid
[26] Ibid
[27] Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch [2018] FWC 4489 at [26]
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