Construction, Forestry and Maritime Employees Union - Construction and General Division - Queensland Northern Territory Divisional Branch
[2025] FWC 858
•27 MARCH 2025
| [2025] FWC 858 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512 - Renewal by existing permit holder for same organisation
Construction, Forestry and Maritime Employees Union - Construction and General Division - Queensland Northern Territory Divisional Branch
(RE2025/90)
| DEPUTY PRESIDENT BUTLER | BRISBANE, 27 MARCH 2025 |
Application by CFMEU for issue of right of entry permit for Roland Cummins – satisfied that fit and proper person – permit issued.
On 31 January 2025, the Construction, Forestry and Maritime Employees Union (the Union) made an application (“the current application”) to the Fair Work Commission pursuant to section 512 of the Fair Work Act 2009 (Cth) (“the Fair Work Act”) for an entry permit[1] for Roland Cummins.
The Applicant says that Mr Cummins holds the position of Organiser with the Union. It says that Mr Cummins has previously held an entry permit.
Mr Cummins, and Mr Michael Ravbar, Divisional Branch Secretary, had made declarations dated 12 October 2021 (“the 2021 declarations”) in support of the application for Mr Cummins’ most recent entry permit.
The Commission determined the application for that previous entry permit in Construction, Forestry, Maritime, Mining and Energy Union[2] (“the 2022 permit decision”).
When this current application was made on 31 January 2025, Mr Cummins’ most recent entry permit, issued in 2022,[3] had not yet expired.
Statutory framework
Part 3-4 of the Fair Work Act provides for “the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role” under industrial and occupational health and safety laws.[4]
Section 512 of the Fair Work 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.
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.
Vice President Hatcher (as His Honour then was) set out various principles relevant to the interpretation and application of sections 512 and 513(1) of the Fair Work Act in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.[5] The phrase “fit and proper person” has been considered by a Full Court of the Federal Court in Maritime Union of Australia v Fair Work Commission.[6] I will have regard to those authorities in deciding this application.
Section 515 of the Fair Work Act allows the Commission to impose conditions on entry permits, taking into account the permit qualification matters. This should be considered in conjunction with assessing fitness and propriety.[7]
Also of relevance is the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024, an instrument made under section 323B(1) of the Fair Work (Registered Organisations) Act 2009. That instrument commenced on 23 August 2024. By that instrument, the Attorney-General determined that it was in the public interest for the Union and its branches to be placed under administration, and determined a scheme for administration. Relevantly, for present purposes, the effect of that instrument is also that the Division has an Administrator (“the Administrator”),[8] various offices in the Branch have been vacated,[9] and the Administrator has the power to delegate powers, functions and duties to persons nominated by him.[10]
Consideration
The Administrator has previously advised the General Manager of the Commission that he has delegated the day-to-day operation of the Qld-NT Branch to Mr Travis O’Brien, Executive Officer. He has advised that the terms of the delegations allow for sub-delegation. While he had that responsibility, Mr O’Brien advised that Mr Paul Dunbar, Industrial Relations Coordinator, is authorised to be the signatory for any application that would otherwise have been signed by the Secretary or other authorised signatory. In deciding this application, I have taken notice of this advice.
Mr Paul Dunbar is the signatory for the application. I am satisfied that by operation of the registered rules of the Division and the divisional branches,[11] including rules 37A and 46(a), this application would otherwise have been signed by the Secretary or other authorised signatory. Having regard to those rules and the delegations referred to above, I am satisfied that the application has been made by the Union, which is an organisation for the purposes of the Fair Work Act.
In support of its application of 31 January 2025, the Union filed declarations by Mr Cummins and Mr Dunbar of that date (“the 2025 declarations”), as contemplated by the Commission’s prescribed form. The 2025 declarations relate to, among other things, the permit qualification matters under section 513 of the Fair Work Act.
According to the 2025 declarations, there had been no changed circumstances regarding the permit qualification matters since 2021 declarations.[12] The 2025 declarations do not explicitly refer to the conditions imposed by the Commission in 2022 when the most recent permit was issued,[13] but no doubt the declarants assumed the Commission was on notice of the conditions it had imposed.
The current application was provided to the Office of the Fair Work Ombudsman for consideration on 31 January 2025. The Office of the Fair Work Ombudsman has not provided any response. I take from this that the Office has no matters to raise in relation to it.
Subject to the qualification, above, regarding the conditions imposed at the time of issue of the most recent permit, there is nothing before me to contradict the 2025 declarations, and I accept them.
Training (section 513(1)(a))
According to the declarations Mr Cummins has received appropriate training about the rights and responsibilities of a permit holder, and, in that regard, he relied upon evidence previously submitted to the Commission of his entry permit training that has been completed in the past six years. The Union provided a copy Mr Cummins’ Certificate of Achievement relating to his completion of the course “Federal Right of Entry under the Fair Work Act 2009” on 20 August 2021. In Construction, Forestry, Maritime, Mining and Energy Union[14] (“the 2022 permit decision”) it was not contested, and the Commission accepted, that Mr Cummins had completed that training.[15]
It was a condition of Mr Cummins’ most recent permit, imposed in the previous permit decision,[16] that he undertake and complete training by an independent legal practitioner experienced in industrial relations law in relation to the rights and obligations of a permit holder. On 4 March 2022 the Union filed a copy of the certificate of completion in relation to that training, also in compliance with the condition imposed in the previous permit decision.[17] As anticipated[18] the training was conducted by a barrister who was also a former Senior Deputy President of the Australian Industrial Relations Commission.
I accept Mr Cummins has received appropriate training about the rights and responsibilities of a permit holder. This permit qualification matter weighs in favour of a conclusion that Mr Cummins is a fit and proper person to hold an entry permit and exercise the powers, functions, and responsibilities attached to holding a permit.
Offence against an industrial law (section 513(1)(b))
According to the 2021 declarations, Mr Cummins had never been convicted of an offence against an industrial law. This was accepted in the 2022 permit decision.[19] As stated above, I accept that there had been no changed circumstances regarding the permit qualification matters since the 2021 declarations. This permit qualification matter weighs in favour of a conclusion that Mr Cummins is a fit and proper person to hold an entry permit and exercise the powers, functions, and responsibilities attached to holding a permit.
Offence involving entry into premises etc (section 513(1)(c))
Section 513(1)(c) of the Fair Work Act provides:
(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;
In the 2022 permit decision the Commission accepted that Mr Cummins had been convicted for trespass under section70A(2) of the Western Australia Criminal Code[20] in January 2010 in relation to conduct in December 2009, but had not otherwise been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in section 513(1)(c) of the Fair Work Act. As stated above, I accept that there had been no changed circumstances regarding the permit qualification matters since the 2021 declarations.
As was the case in the 2022 permit decision,[21] save for the trespass conviction, the consideration of the permit qualification matter in paragraph (c), above, weighs in favour of a conclusion that Mr Cummins is a fit and proper person to hold an entry permit and exercise the powers, functions, and responsibilities attached to holding a permit.
The trespass conviction was considered in the 2022 permit decision, and, earlier, in Construction, Forestry, Mining and Energy Union – Construction and General Division, Queensland Northern Territory Divisional Branch,[22] the decision regarding the preceding permit. I accept the previous finding that “the conviction is of little moment in assessing Mr Cummins’ fitness and propriety.”[23] It is of less moment now.
Whether ever ordered to pay a penalty (section 513(1)(d))
In the previous permit decision the Commission dealt with matters that had been disclosed in relation to sub-paragraph 513(1)(d) of the Fair Work Act, some of which had also been considered in an earlier permit decision.[24]
In that decision, the Commission considered that the matters raised reservations about whether Mr Cummins was a fit and proper person to hold an entry permit.[25] These reservations did not lead to the refusal of the application; instead, the permit was issued subject to conditions. The conditions are discussed below.
For the reasons set out above I accept there were no changed circumstances or new matters relevant to paragraph 513(1)(d) of the Act, since the 2021 declarations. Given the time that has elapsed, the compliance with the conditions discussed below, and the absence of any new matters relevant to this paragraph, the matters referred to above weigh against Mr Cummins’ fitness and propriety to a lesser extent than they did in 2022.
Conditions (section 513(1)(e))
The conditions imposed under the 2022 permit decision related to:[26]
· the additional training referred to above;
· a prohibition on using the entry permit unaccompanied until the training had been completed;
· a requirement for Mr Cummins to carry with him the certificate of completion for that training whenever exercising entry powers and to produce it on request; and
· a requirement to file the certificate of completion in the Commission, and promptly notify the Commission and the then Australian Building and Construction Commissioner if the Commission or any court made a finding that Mr Cummins had contravened an obligation imposed by the Act, or if the Commission made adverse findings about his conduct while exercising entry rights under the Act.
The fact that conditions were imposed weighs against a conclusion that Mr Cummins is a fit and proper person to hold an entry permit and exercise the powers, functions, and responsibilities attached to holding a permit. However, I can infer from the fact that he filed a certificate of completion, signed by the independent legal practitioner concerned, that Mr Cummins met the training requirement and the requirement to file the certificate. There is nothing before me to suggest that he has not met the remainder of the conditions.
I also accept, for the reasons above, that there have been no other conditions imposed, or any other matters relevant to paragraph 513(1)(e) of the Act, since the 2021 declarations were made.
State or Territory permits (section 513(1)(f))
In the 2022 permit decision the Commission accepted that:
(a) Mr Cummins had not had cancelled, suspended or imposed conditions on any right of entry permit 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; and
(b) Mr Cummins had 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.
As was the case in that decision these matters weigh in favour of a conclusion that Mr Cummins is a fit and proper person to hold an entry permit and exercise the powers, functions, and responsibilities attached to holding a permit.
Other relevant matters (section 513(1)(g))
Section 517(1) of the Fair Work Act requires that a permit be returned within 7 days of its expiry. A permit generally expires three years after it is issued. There is provision for extension while an application for a new permit is being considered but only if the application is made at least a month before the permit is due to expire, which is not the case here.
Mr Cummins’ previous permit expired on 18 February 2025. On 24 February the Union advised the Commission that it was in the process of returning the permit. It advised Mr Cummins, who was located in Far North Queensland, had posted the permit to the union’s offices the previous week, but that with the floods in north Queensland, they anticipated there may be a delay in the postal system.
On 14 March 2025 the permit had not yet been received in the Union office. The Union filed a statutory declaration of Mr Cummins declared on 12 March 2025. In it Mr Cummins declared that he had posted the permit on 19 February, and now considered it lost in transit.
On 24 March 2025 the Union advised the Commission the permit had finally been received, and had been express posted to the Commission’s Sydney registry. A tracking number was given.
The failure to return an expired permit is not a trivial matter, as section 517(1) is a civil remedy provision. However, in the circumstances the late return of the permit was beyond Mr Cummins’ control, and does not weigh against his fitness and propriety.
On balance
Taking into account and weighing the permit qualification matters, on balance Mr Cummins is a fit and proper person to hold an entry permit and exercise the powers, functions, and responsibilities attached to holding a permit.
Conditions
I have considered whether any conditions should be imposed on any entry permit issued to Mr Cummins in conjunction with my consideration of whether he is a fit and proper person to hold an entry permit.
In the circumstances I have not considered it necessary to impose a condition similar to that imposed in 2022.
The training course that Mr Cummins completed on 20 August 2021 did not include appropriate training in relation to Subdivision AA of Division 2 of Part 3-4 of the Fair Work Act (which is unsurprising as that Subdivision relates to workers in the textile, clothing, or footwear industry). Nor was the training required under the previous conditions directed towards that Subdivision. Accordingly, and having taken into account the permit qualification matters, I impose the following condition pursuant to section 515 of the Fair Work Act:
Roland Cummins 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 Fair Work Commission. [Note: Subdivision AA relates to TCF award workers.]
Conclusion
After taking into account and weighing each of the permit qualification matters set out in subsection 513(1) of the Fair Work Act, I am satisfied, on balance, that Mr Cummins is a fit and proper person to hold an entry permit and exercise the powers, functions, and responsibilities attached to holding a permit.
I am satisfied that it is appropriate to exercise the discretion conferred on me by section 512 of the Fair Work Act in favour of issuing Mr Cummins with an entry permit.
I have considered whether any conditions should be imposed on any entry permit issued to Mr Cummins in conjunction with my consideration of whether he is a fit and proper person to hold an entry permit. I have concluded that a condition should be imposed, as set out above.
DEPUTY PRESIDENT
[1] An entry permit is a permit issued pursuant to section 512 of the Fair Work Act 2009.
[2] [2022] FWC 101.
[3] Ibid.
[4] Fair Work Act s 478.
[5] [2015] FWC 1522 per Hatcher VP as His Honour then was.
[6] [2015] FCAFC 56 per North, Flick and Bromberg JJ.
[7] Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 per North, Flick and Bromberg JJ at [35]-[36].
[8] Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024, item 2.
[9] Ibid, item 3.
[10] Ibid, item 6(3).
[11] The registered rules of the Construction, Forestry and Maritime Employees Union, Construction and General Division and
Construction and General Divisional Branches.
[12] Declaration of Roland Cummins declared 31 January 2025, [3.1].
[13] Construction, Forestry, Maritime, Mining and Energy Union [2022] FWC 101, [2], and the orders made consequently, ibid, [29].
[14] [2022] FWC 101.
[15] Ibid, [6]-[7].
[16] Ibid, [2].
[17] Ibid.
[18] Ibid, [26].
[19] Ibid, [6]-[7].
[20] The Schedule to the Criminal Code Act Compilation Act 1913 (WA)
[21] Ibid, [7].
[22] [2017] FWC 1390.
[23] Construction, Forestry, Maritime, Mining and Energy Union [2022] FWC 101, [7].
[24] Construction, Forestry, Mining and Energy Union – Construction and General Division, Queensland Northern Territory Divisional Branch [2017] FWC 1390.
[25] Construction, Forestry, Maritime, Mining and Energy Union [2022] FWC 101, [18].
[26] Construction, Forestry, Maritime, Mining and Energy Union [2022] FWC 101, [2], and the orders made consequently, ibid, [29].
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