Construction, Forestry and Maritime Employees Union-Construction and General Division

[2024] FWC 3219

[2024] FWC 3219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Construction, Forestry and Maritime Employees Union-Construction and General Division

(RE2024/1179)

DEPUTY PRESIDENT DOBSON BRISBANE, 21 NOVEMBER 2024

Application for a right of entry permit for Mr Troy Leigh McIntyre – whether fit and proper person to hold an entry permit under the Act – satisfied Mr McIntyre is a fit and proper person to hold a permit – order revoking lost entry permit issued – permit issued.

1. The Construction, Forestry and Maritime Employees Union - Construction and General Division, South Australia Divisional Branch (CFMEU) applies to the Commission under s 512 of the Fair Work Act 2009 (Cth) (Act) for a right to entry permit to be issued to its official, Mr Troy Leigh McIntyre who is an Organiser in the CFMEUs Construction and General Division, South Australia Divisional Branch.

1. Mr McIntyre was issued an entry permit on 29 October 2024,[1] which will expire on 29 October 2027. Following the failure of the entry permit to arrive, enquiries were undertaken by the Registered Organisations Branch of the Fair Work Commission (ROB) with Australia Post, pursuant to the tracking number on the express post packaging in which the new permit was sent. Australia Post confirmed with the ROB that the item could not be located and was deemed as missing by Australia Post.

1. The Commission does not appear to have general power under the Act to replace a lost of stolen entry permit. For Mr McIntyre to hold a valid entry permit and be in a position to produce it when requested by an occupier to do so, the existing permit, which has been lost, must be revoked and an application for a new permit to be issued must be, and as noted above has been made. The applicable principles for determining right of entry permit applications under s 512 are well settled and not controversial. They need not be restated.

Consideration

1. In support of its application the CFMEU filed declarations by Mr McIntyre and Mr Travis Hera-Singh, who is an Executive Officer of the CFMEU’s Construction and General Division, South Australia Divisional Branch. (the Declarations).

Permit qualification matters – s 513(1)(a), (b), (c), (d), (e) and (f)

1. According to the Declarations and the material which accompanies them:

·   Mr McIntyre has received training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry on 1 October 2024,[2] as well as on 29 July 2019.[3] The course of training conducted by the CFMEU is a course approved by the Commission and the training completed by Mr McIntyre is relevantly appropriate (s 513(1)(a) of the Act);

·   Mr McIntyre has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[4]

·   Mr McIntyre 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]

·   Neither Mr McIntyre nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him (s 513(1)(d) of the Act);[6]

·   Mr McIntyre 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);[7]

·   Mr McIntyre has not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes that Mr McIntyre 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);[8] and

·   Mr McIntyre 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 safe law (s 513(1)(f)(ii) of the Act).[9]

1. 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 McIntyre is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s 513(1)(g)

1. There are no other matters of which I am aware that I consider relevant to the determination of whether Mr McIntyre is a fit and proper person to hold an entry permit.

Mr McIntyre’s existing permit

1. 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.

1. 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 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 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

…”

1. 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 revoke in s 603(1).

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) of the Act.

1. In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Mr McIntyre in matter RE2022/1041.

Conclusion

1. Pursuant to s 603 of the Act, the entry permit RE2024/1041 issued to Mr McIntyre by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR781489.

1. Taking into account the permit qualification matters and for the reasons earlier stated, I am satisfied that Mr Troy Leigh McIntyre 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 McIntyre is granted.

1. A permit will be separately issued.

DEPUTY PRESIDENT

[1] RE2024/1041.

[2] CFMEU Federal Right of Entry Training Certificate of Completion dated 1 October 2024.

[3] Form F42, Declaration by proposed permit holder dated 4 October 2024 at (a); CFMEU Federal Right of Entry Training Certificate of Completion dated 1 October 2024.

[4] Form F42, Declaration by proposed permit holder dated 4 October 2024 at (b).

[5] Ibid at (c).

[6] Ibid at (d).

[7] Ibid at (e).

[8] Ibid at (f).

[9] Ibid at (g)

Printed by authority of the Commonwealth Government Printer

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