Construction, Forestry and Maritime Employees Union
[2024] FWC 1725
•8 JULY 2024
| [2024] FWC 1725 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 512—Right of entry; s 603—Varying and revoking FWC’s decisions
Construction, Forestry and Maritime Employees Union
(RE2024/564)
| DEPUTY PRESIDENT GOSTENCNIK | HOBART, 8 JULY 2024 |
Application for a right of entry permit for Brendon Christopher Brolly – whether a fit and proper person to hold an entry permit under the Act – satisfied Mr Brolly is a fit and proper person to hold a permit – order revoking lost entry permit issued – permit issued.
The Construction, Forestry and Maritime Employees Union (CFMEU) applies to the Commission under s 512 of the Fair Work Act 2009 (Cth) (Act) for a right of entry permit to be issued to its official, Brendon Christopher Brolly, who is an Organiser of the CFMEU.
Mr Brolly was issued with an entry permit on 29 June 2023,[1] which will expire on 29 June 2026. Mr Brolly declared that he has been unable to locate his permit since early May 2024, that he searched for his permit for some weeks and that he concludes he likely lost the permit.[2] Mr Brolly declared that he has not exercised his right to enter premises since he has been unable to locate his permit.[3]
The Commission does not appear to have general power under the Act to replace a lost or stolen entry permit. For Mr Brolly to hold a valid permit and to be able to produce it when requested by an occupier to do so, the existing permit, which has been misplaced, must be revoked and an application for a new permit to be issued must be made.
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.[4] 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,[5] 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,[6] which must be evaluated and accorded appropriate weight.[7]
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.[8]
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 Brolly and Warren Smith, Divisional Deputy National Secretary of the Maritime Union of Australia Division of the CFMEU (Declarations). The declarations by Mr Brolly and Mr Smith disclose adverse matters that were considered in the previous application for the issue of a right of entry permit for Mr Brolly.
According to the Declarations and the supporting material, Mr Brolly 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 13 May 2024 (s 513(1)(a) of the Act);[9]
·never been convicted of an offence against an industrial law (s 513(b) 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 cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Brolly 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 Brolly is a fit and proper person to hold a right of entry permit.
Permit qualification matter – s 513(1)(e)
Section 513(1)(e) of the Act relevantly 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:
...
(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;”
On 28 May 2024, the CFMEU initially filed Declarations that declared that Mr Brolly has 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).[14]
On 2 July 2024, my Chambers contacted CFMEU and requested corrections be made to the Form F42 declarations by including information regarding the conditions imposed on Mr Brendon Brolly’s previously issued entry permit pursuant to the RE2023/139 decision and order.
On 4 July 2024, the CFMEU refiled Declarations by Mr Brolly and Mr Smith disclosing that Mr Brolly “had a condition that he could not exercise his right to enter premises 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 has filed a copy of the training completion certificate in the Commission”.[15]
I am satisfied that the refiled Declarations made by Mr Brolly and Mr Smith correctly disclosed the conditions imposed on Mr Brolly’s RE2023/139 entry permit. I am satisfied that Mr Brolly has not, save as indicated below, 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).[16] Mr Brolly’s lost permit had a condition as follows: “Brendon Brolly 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.”[17] That condition arises from the fact that 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, whether particularised training had been undertaken or not. The condition is directed to correcting that anomaly and does not result from any conduct on Mr Brolly’s part which would weigh negatively. That the condition was imposed on Mr Brolly’s RE2023/139 entry permit does not present a barrier to concluding that Mr Brolly is now a fit and proper person if the same condition is imposed.
Permit qualification matter – ss 513(1)(c) and (g)
Sub-sections 513(1)(c) and (g) of the Act relevantly provide 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:
...
(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;
…
(g) any other matters that the FWC considers relevant.”
According to the Declarations, Mr Brolly has 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.[18] Furthermore, according to the Declarations, there are other matters relevant to whether Mr Brolly is a fit and proper person to hold an entry permit.[19]
The Declarations disclose that Mr Brolly has been:
convicted of an offence involving entry onto premises as Mr Brolly was convicted of trespassing in Crown Casino (formerly called Burswood Casino) on 6 October 2011;[20]
convicted of offences involving violence against another person as follows as Mr Brolly was charged with assault that occurred whilst he was under the influence of alcohol on 19 August 2004 and on 15 May 2018.[21]
charged with behaving in a disorderly manner in a public place on 25 November 2022;[22]
convicted of driving with a suspended driver’s license and under the influence of alcohol on 10 May 2019;[23]
convicted of disorderly behaviour in public on 11 December 2009;[24]
convicted of drink driving on 18 August 2008;[25]
convicted of disorderly behaviour in a public place on 10 April 2007;[26]
convicted of breaching a move on order on 29 March 2007;[27] and
convicted of drink driving on 16 January 2003.[28]
These convictions weigh against a conclusion that Mr Brolly is a fit and proper person to hold an entry permit. However, the following matters are relevant in assessing that weight that should be ascribed:
Mr Brolly has demonstrated candour in disclosing his past wrongdoing;
a significant proportion of the convictions have occurred more than 10 years ago;[29]
notwithstanding the number of convictions, the penalties imposed by the Court indicate those convictions have been at the lesser end of the scale of seriousness;[30]
all of the convictions involve consumption of alcohol as a material factor giving rise to the circumstances of the conviction;[31]
Mr Brolly acknowledged the seriousness of his past conduct;[32]
Mr Brolly sought medical treatment and accessed ongoing counselling sessions to better manage alcohol consumption outside the workplace and to prevent any further convictions;[33]
Mr Brolly held a Maritime Security Identification Card (MSIC) since 20013 that has been renewed every 4 years, inclusive of background checks conducted every 2 years;[34] and
Mr Brolly has never had his MSIC revoked, suspended or made subject to conditions.[35]
Taken together, although the contravening conduct in which Mr Brolly engaged and which are outlined above are serious, these adverse permit qualification matters viewed in their proper context today, 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 Brolly 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 matters disclosed.
Mr Brolly’s existing permit
As mentioned earlier, the Commission does not have a general power under the Act to replace an entry permit that is lost or stolen. A revocation of the existing permit is required, and a new permit may be issued subject to the requirements in s 512 of the Act.
The relevant power to revoke is found in s 603 of the Act, which relevantly provides:
“603 Varying and revoking the FWC’s decisions
(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).
Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).
(2) The FWC may vary or revoke a decision under this section:
(a) on its own initiative; or
(b) on application by:
(i) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.
(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:
(a) a decision under Part 2‑3 (which deals with modern awards);
(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2‑4 (which deal with enterprise agreements);
(c) a decision under Part 2‑5 (which deals with workplace determinations);
(d) a decision under Part 2‑6 (which deals with minimum wages);
(e) a decision under Division 3 of Part 2‑8 (which deals with transfer of business);
(f) a decision under Division 8 of Part 3‑3 (which deals with protected action ballots);
(g) a decision under section 472 (which deals with partial work bans);
(h) a decision that is prescribed by the regulations.
Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).”
The reference to “decision” in s 603 of the Act carries the meaning ascribed to it by s 598. Subsection 603(1) confers a discretion to vary or revoke “a decision of the FWC that is made under [the] Act” (other than a decision referred to in s 603(3)). Subsection 603(3) expressly excludes certain classes of decisions from the scope of the general power to vary or revoke in s 603(1).
A decision of the Commission to issue an entry permit is a decision which falls within the scope of s 603(1) of the Act in that it is a decision made by the Commission under the Act that does not fall within the scope of the exclusions in s 603(3).
In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Mr Brolly in RE2023/139.
Conclusion
Pursuant to s 603 of the Act, the entry permit RE2023/139 issued to Mr Brolly by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR776585.
Taking into account the permit qualification matters, and for the reasons earlier stated, I am satisfied that Brendon Christopher Brolly is a fit and proper person to hold an entry permit with the following condition:
1. Brendon Brolly 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 Brolly with the above condition is granted.
A permit with the abovementioned condition will be separately issued.
DEPUTY PRESIDENT
[1] RE2023/139
[2] Statutory Declaration of Brendon Brolly dated 25 June 2024 at [4]
[3] Ibid at [5]
[4] 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]
[5] [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]
[6] 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
[7] 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])
[8] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15], p 41
[9] Amended Form F42, Declaration by Brendon Christopher Brolly dated 4 July 2024 at (a); Amended Form F42, Declaration by Warren Smith dated 4 July 2024 at 4; ACTU Institute Certificate of Completion of Brendon Brolly dated 13 May 2024
[10] Amended Form F42, Declaration by Brendon Christopher Brolly dated 4 July 2024 at (b); Amended Form F42, Declaration by Warren Smith dated 4 July 2024 at 2(a)
[11] Amended Form F42, Declaration by Brendon Christopher Brolly dated 4 July 2024 at (d); Amended Form F42, Declaration by Warren Smith dated 4 July 2024 at 2(c)
[12] Amended Form F42, Declaration by Brendon Christopher Brolly dated 4 July 2024 at (f); Amended Form F42, Declaration by Warren Smith dated 4 July 2024 at 2(e)
[13] Amended Form F42, Declaration by Brendon Christopher Brolly dated 4 July 2024 at (g); Amended Form F42, Declaration by Warren Smith dated 4 July 2024 at 2(f)
[14] Form F42, Declaration by Brendon Christopher Brolly dated 28 May 2024 at (e); Form F42, Declaration by Warren Smith dated 28 May 2024 at 2(d)
[15] Amended Form F42, Declaration by Brendon Christopher Brolly dated 4 July 2024 at (e); Amended Form F42, Declaration by Warren Smith dated 4 July 2024 at 2(d)
[16] Ibid
[17] Application by Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division - Western Australian Branch (105N-MWA) for an Entry Permit for Mr Brendon Christopher Brolly [2023] FWC 1014 at [63]
[18] Form F42, Declaration by Brendon Christopher Brolly dated 28 May 2024 at (c); Form F42, Declaration by Warren Smith dated 13 May 2024 at 2(b)
[19] Amended Form F42, Declaration by Brendon Christopher Brolly dated 4 July 2024 at (h); Amended Form F42, Declaration by Warren Smith dated 4 July 2024 at 2(g)
[20] Amended Form F42, Declaration by Brendon Christopher Brolly dated 4 July 2024 at (c); Amended Form F42, Declaration by Warren Smith dated 4 July 2024 at 2(b)
[21] Ibid
[22] Amended Form F42, Declaration by Brendon Christopher Brolly dated 4 July 2024 at (h); Amended Form F42, Declaration by Warren Smith dated 4 July 2024 at 2(g)
[23] Ibid
[24] Ibid
[25] Ibid
[26] Ibid
[27] Ibid
[28] Ibid
[29] Application by Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division - Western Australian Branch (105N-MWA) for an Entry Permit for Mr Brendon Christopher Brolly [2023] FWC 1014 at [54]
[30] Ibid
[31] Ibid
[32] Ibid
[33] Ibid at [41] and [61]
[34] Amended Form F42, Declaration by Brendon Christopher Brolly dated 4 July 2024 at (h); Amended Form F42, Declaration by Warren Smith dated 4 July 2024 at 2(g)
[35] Ibid
Printed by authority of the Commonwealth Government Printer
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