Construction, Forestry and Maritime Employees Union-Construction and General Division, New South Wales Divisional Branch
[2025] FWC 211
•22 JANUARY 2025
| [2025] FWC 211 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512 - Application for a right of entry permit
Construction, Forestry and Maritime Employees Union-Construction and General Division, New South Wales Divisional Branch
(RE2024/1300)
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 22 JANUARY 2025 |
Application for a right of entry permit for David John Kelly – whether fit and proper person to hold an entry permit under the Act - satisfied that fit and proper person - permit issued.
On 19 December 2024, Mr Christodoulou, Joint Executive Officer of the Construction, Forestry and Maritime Employees Union – New South Wales Divisional Branch (CFMEU NSW) made application on behalf of the CFMEU NSW under s.512 of the Fair Work Act 2009 (Cth) (the Act) for a right of entry permit for Mr David John Kelly, a State Organiser.
In support of its application, the CFMEU filed declarations of 3 December 2024 by Mr Christodoulou and Mr Kelly (the Declarations).
Relevant to the application is the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024, an instrument made under s 323B(1) of the Fair Work (Registered Organisations) Act 2009 which commenced on 23 August 2024. By that instrument, the Attorney-General determined that it was in the public interest for the Construction, Forestry and Maritime Employees Union, Construction and General Division (the Union) and its branches to be placed under administration, and determined a scheme for administration. The effect of that instrument is also that the Division has an Administrator (the Administrator),1 various offices have been vacated,2 and the Administrator has the power to delegate powers, functions and duties to persons nominated by him.3 On 23 August 2024, the Administrator appointed Mr Christodoulou as Joint Executive Officers of the CFMEU NSW. By this appointment Mr Christodoulou has authority to manage the day to day operations of the CFMEU NSW.
On the basis of this material, I am satisfied that Mr Kelly is an employee of the CFMEU NSW and that the application has been properly made.
Statutory framework
Section 512 of the Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if the Commission is satisfied that the official is a ‘fit and proper person’ to hold the entry permit.
‘Official’ is defined s. 12 of the Act as a person who holds an office in, or is an employee of an industrial association. ‘Industrial association’ includes a registered organisation and a branch of such an organisation.
In deciding whether the official is a fit and proper person, the Commission must have regard to the permit qualification matters set out in s 513(1) of the Act.
Section 513(1) of the FW Act states:
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:
(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;
(b) whether the official has ever been convicted of an offence against an industrial law;
(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;
(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;
(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;
(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:
i.cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or
ii.disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;
(g) any other matters that the FWC considers relevant.
The focus of the Commission’s 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
Consideration
Permit qualification matters – s 513(1)
According to the Declarations and the material which accompanies them, Mr Kelly 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 by Ms Leah Charlson, Senior Legal Officer, CFMEU NSW on 17 December 2024 (s 513(1)(a) of the Act);
· never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);
· 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;
· 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);
· 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);
· not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes that he 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); 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).
The application notes one matter that may be relevant to the consideration under s513(1)(g). In A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047, the Federal Court of Australia held that Mr Kelly’s conduct was in contravention of s45D of the Trade Practices Act 1974 (Cth) and that he engaged in the tort of interference of contract. I have reviewed that decision and the related decision on remedy, A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466. In that matter the CFMEU, Mr Kelly, and two other officials of the CFMEU were named respondents. The respondents were ordered to pay damages in relation to the conduct of the three officials, including Mr Kelly. A penalty was issued in relation to the conduct of one of the officials, not Mr Kelly.
While this matter is relevant, I do not consider it is sufficient to lead to a conclusion that Mr Kelly is not a fit and proper person to hold a right of entry permit in 2025. The matter involved conduct that occurred in 2003, some 22 years ago. Mr Kelly has since been issued with right of entry permits. The latest in 20215 The matter was declared in the 2021 proceedings and the Commission found that Mr Kelly was, nonetheless, a fit and proper person to hold a right of entry permit. I agree with that finding.
Conclusion
Taking into account the permit qualification matters, and for the reasons earlier stated, I am satisfied that David John Kelly 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 Kelly is granted. I will not impose any conditions on the entry permit.
A permit will issue separately.
DEPUTY PRESIDENT
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