Construction, Forestry and Maritime, Employees Union
[2023] FWC 2873
•20 DECEMBER 2023
| [2023] FWC 2873 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Construction, Forestry and Maritime, Employees Union
(RE2023/744)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 20 DECEMBER 2023 |
Application for a right of entry permit for Rebel Brandon Hanlon – whether fit and proper person to hold an entry permit under the Act – satisfied Ms Clarke is a fit and proper person to hold a permit –permit issued.
The Construction, Forestry and Maritime, Employees Union (CFMEU) has applied to the Commission under s 512 of the Fair Work Act 2009 (Act) for a right of entry permit to be issued to its official, Mr Rebel Brandon Hanlon. Mr Hanlon is employed by the CFMEU as a State Organiser in the New South Wales Divisional Branch of the CFMEU’s Construction and General Division.
Mr Hanlon has held entry permits under the Act and its predecessor legislation since 2002. His most recent permit was issued on 16 September 2020.[1] In support of its application the CFMEU filed declarations by Mr Hanlon and Mr Darren Greenfield, the Divisional Branch Secretary of the CFMEU (the Declarations) which disclose adverse matters, most recently from 2021, having not been considered in previous applications for the issue of a right of entry permit. To deal with these disclosures, by application Mr Hanlon’s permit has been extended until 14 January 2024.[2]
According to the Declarations, permit qualification matters which weigh in favour of a conclusion that Mr Hanlon is a fit and proper person to hold a right of entry permit are that:
· Mr Hanlon has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of federal right of entry conducted on 3 May 2023 and also completed training about the rights and responsibilities of a permit holder in relation to TCF award workers on this date (s 513(1)(a) of the Act));[3]
· Mr Hanlon has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[4]
· Mr Hanlon has 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;[5]
· Mr Hanlon has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s 513(1)(e) of the Act);[6]
· Mr Hanlon has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Hanlon 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);[7] and
· Mr Hanlon has 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).[8]
s 513(1)(d) of the Act
In Darlaston v Parker (No. 2)[9] the Construction, Forestry, Mining and Energy Union, as the CFMEU was then known, was ordered to pay a penalty of $2,500 for contravening the Workplace Relations Act 1996 in relation to conduct found in Darlaston v Parker[10] to have been engaged in by Mr Hanlon on 3 and 4 December 2008 in failing to comply with a reasonable request by an occupier to undergo a site safety induction. The imposition of the penalty, although a permit qualification matter weighing against a conclusion that Mr Hanlon was relevantly a fit and proper person, when considered in the context of other permit qualification matters, has not been a bar to Mr Hanlon being issued subsequent permits.[11]
Since being issued with his most recent permit in 2020, in Australian Building and Construction Commissioner v Hanlon (No 2)[12] Mr Hanlon was ordered to pay a penalty of $3,060 for contravening s 500 of the Act. In Australian Building and Construction Commissioner v Hanlon & Ors[13] the Court found that on 11 August 2014 Mr Hanlon had contravened s 500 by entering a construction site and seeking to exercise rights and remaining on site without giving notice of entry and failing to produce his entry permit. A subsequent appeal in Hanlon v Australian Building and Construction Commissioner,[14] was dismissed. The CFMEU submits:
The contravention occurred more than 9 years ago;
The $3,060 penalty imposed was 30% of the maximum penalty of $10,200, being towards the lower end of the spectrum of seriousness;
Since the contravening conduct in August 2014 Mr Hanlon has not been found to have contravened the right of entry provisions in the Act or other industrial laws; and
Mr Hanlon has continuously held permits under the Act and its predecessor legislation since 2002 and has been granted entry permits in 2017 and 2020 after the contravention (although I note that the contravention was not brought to the attention of the Commission at this time, and in any event would not likely have been considered before a penalty was imposed)
I accept the CFMEU’s contentions. Moreover, I accept that Mr Hanlon understands his obligations as a permit holder, demonstrated in his completion of training courses earlier this year and his behaviour and conduct since 2014. Considering the passage of time since the contravening conduct and his conduct since, although this matter weighs against Mr Hanlon, it does not do so significantly.
s 513(1)(g) of the Act
There are no other relevant matters of which I am aware touching the question whether Mr Hanlon is a fit and proper person to hold and entry permit.
All the permit qualification matters must be considered. Having regard to the totality of permit qualification matters I am satisfied that although there are matters which weigh against a conclusion that Mr Hanlon is a fit and proper person to be issued an entry permit, the contravening conduct underpinning those matters occurred nearly a decade or more ago. Mr Hanlon has, since that time, exercised entry rights as a permit holder without any evident misbehaviour. The matters disclosed do not outweigh the matters which point to a conclusion that Mr Hanlon is a fit and proper person, in the requisite sense.
Therefore, taking into account the permit qualification matters, for the reasons stated I am satisfied that Rebel Brandon Hanlon 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 Hanlon is granted.
DEPUTY PRESIDENT
[1] RE2020/743
[2] RE2023/747, PR767960
[3] Form F42, Declaration by proposed permit holder dated 15 August 2023 at (a)
[4] Ibid at (b)
[5] Ibid at (c)
[6] Ibid at (e)
[7] Ibid at (f)
[8] Ibid at (g)
[9] [2010] FCA 1382
[10] [2010] FCA 771
[11] [2011] FWA 2577 (13 May 2011); including for reasons in Construction, Forestry, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch [2017] FWC 5003 at [12]-[15]
[12] [2021] FCCA 787 (23 April 2021)
[13] [2020] FCCA 3409 (16 December 2020).
[14] [2021] FCAFC 221 (23 November 2021)
Printed by authority of the Commonwealth Government Printer
<PR767829>
0
0
0