Construction, Forestry and Maritime Employees Union
[2024] FWC 1904
•22 JULY 2024
| [2024] FWC 1904 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Construction, Forestry and Maritime Employees Union
(RE2024/694)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 22 JULY 2024 |
Application for a right of entry permit for Robert Anthony Benkesser – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Benkesser 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 official, Robert Anthony Benkesser. Mr Benkesser is the President of the CFMEU – Construction & General Division, WA Divisional Branch.[1]
Mr Benkesser was issued an entry permit on 22 June 2021,[2] which expired on 22 June 2024. That entry permit was returned to the Commission on 28 June 2024, which was within the 7 days of its expiration date.
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 Benkesser and Michael Buchan, Secretary of the CFMEU – Construction & General Division, WA Divisional Branch (Declarations).
According to the Declarations and the supporting material, Mr Benkesser has:
·save for training about exercising rights under Subdivision AA of Division 2 of Part 3-4 of the Act, received appropriate training about the rights and responsibilities of a permit holder by undertaking an online course of training on the subject of federal right of entry conducted by the ACTU Institute on 26 June 2024 (s 513(1)(a) of the Act);[8]
·never been convicted of an offence against an industrial law (s 513(b) of the Act);[9]
·never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s 513(1)(c) of the Act;[10]
·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);[11]
·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);[12]
·not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Benkesser 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);[13] 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).[14]
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 Benkesser is a fit and proper person to hold a right of entry permit. However, since the Textile, Clothing and Footwear Union of Australia amalgamated with the CFMEU, the eligibility rules of the CFMEU have expanded and so allowed all existing permit holders to exercise rights under Subdivision AA of Division 2 of Part 3-4 of the Act. If granted an unconditional permit, Mr Benkesser would be permitted to exercise rights under Subdivision AA of Division 2 of Part 3-4 even though his training did not include the exercise of these rights. Absent such training I consider a condition restricting the exercise of these rights until appropriate training is undertaken is appropriate.
Permit qualification matters – s 513(1)(g)
There are no other matters of which I am aware that I consider relevant to the determination of whether Mr Benkesser is a fit and proper person to hold an entry permit.
Conclusion
Taking into account the permit qualification matters, and for the reasons earlier stated, I am satisfied that Robert Anthony Benkesser is a fit and proper person to hold an entry permit with the following condition:
1. Robert Anthony Benkesser must 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 Commission.
The application by the CFMEU for an entry permit to be issued to Mr Benkesser with the above condition is granted.
A permit with the abovementioned condition will be separately issued.
DEPUTY PRESIDENT
[1] Form F42, Declaration by Robert Anthony Benkesser dated 27 June 2024
[2] RE2021/646
[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 Robert Anthony Benkesser dated 27 June 2024 at (a); Form F42, Declaration by Michael Buchan dated 27 June 2024 at 4; ACTU Certificate of Completion of Robert Anthony Benkesser dated 26 June 2024
[9] Form F42, Declaration by Robert Anthony Benkesser dated 27 June 2024 at (b); Form F42, Declaration by Michael Buchan dated 27 June 2024 at 2(a)
[10] Form F42, Declaration by Robert Anthony Benkesser dated 27 June 2024 at (c); Form F42, Declaration by Michael Buchan dated 27 June 2024 at 2(b)
[11] Form F42, Declaration by Robert Anthony Benkesser dated 27 June 2024 at (d); Form F42, Declaration by Michael Buchan dated 27 June 2024 at 2(c)
[12] Form F42, Declaration by Robert Anthony Benkesser dated 27 June 2024 at (e); Form F42, Declaration by Michael Buchan dated 27 June 2024 at 2(d)
[13] Form F42, Declaration by Robert Anthony Benkesser dated 27 June 2024 at (f); Form F42, Declaration by Michael Buchan dated 27 June 2024 at 2(e)
[14] Form F42, Declaration by Robert Anthony Benkesser dated 27 June 2024 at (g); Form F42, Declaration by Michael Buchan dated 27 June 2024 at 2(f)
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