Construction, Forestry and Maritime Employees Union - Construction and General Division - Queensland Northern Territory Divisional Branch
[2024] FWC 3429
•9 DECEMBER 2024
| [2024] FWC 3429 |
| 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
(RE2024/1150)
| DEPUTY PRESIDENT BUTLER | BRISBANE, 9 DECEMBER 2024 |
Application by CFMEU for issue of right of entry permit for Peter Joseph D’Arcy – satisfied that fit and proper person – permit issued.
On 8 November 2024, the Construction, Forestry and Maritime Employees Union (the Union) made an application to the Fair Work Commission pursuant to s 512 of the Fair Work Act 2009 (Cth) (the Fair Work Act) for an entry permit[1] for Peter Joseph D’Arcy.
The Applicant says that Mr D’Arcy holds the position of Official with the Queensland-Northern Territory Divisional Branch (the Qld-NT Branch) of the Construction and General Division (the Division) of the Union. It says that Mr D’Arcy has previously held an entry permit.
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.[2]
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.
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 ss 512 and 513(1) of the Act in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.[3] 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.[4] 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.[5]
Also of relevance 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. 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),[6] various offices in the Branch have been vacated,[7] and the Administrator has the power to delegate powers, functions and duties to persons nominated by him.[8]
Consideration
The Administrator has 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. Mr O’Brien has 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,[9] 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, the Union filed declarations by Mr D’Arcy and Mr Dunbar as contemplated by the Commission’s prescribed form. According to those declarations:
(a)Since the declarations made in the application for the current entry permit, there have not been any changed circumstances regarding the permit qualification matters;
(b)Mr D’Arcy has received appropriate training about the rights and responsibilities of a permit holder, relying on evidence previously submitted in the Commission; and
(c)there are no other matters (of which the declarants are aware) that may be relevant to whether Mr D’Arcy is a fit and proper person to hold a permit.
As to training, Mr D’Arcy’s declaration filed in support of a previous entry permit application states he received appropriate training about the rights and responsibilities of a permit holder by completing an approved right of entry training course on 27 August 2021.
I accept that the information set out in the previous paragraph, as disclosed in the declarations made by Mr D’Arcy and Mr Dunbar concerning these matters, is true and correct.
The application was provided to the Office of the Fair Work Ombudsman for consideration on 8 November 2024. The Office of the Fair Work Ombudsman responded on 14 November 2024. In its response it referred to the matter of Australian Building and Construction Commissioner v D’Arcy and Anor [2019] FCCA 563,[10] and to a penalty that had been imposed on Mr D’Arcy in those proceedings.
The application form, for an entry permit, invites disclosure of any changed circumstances. Those proceedings, and the penalty imposed on Mr D’Arcy, were previously disclosed, including in the application for the entry permit Mr D’Arcy currently holds.
The decision in Australian Building and Construction Commissioner v D’Arcy and Anor was made in relation to the Federal Circuit Court of Australia proceedings bearing matter number BRG 305 of 2018. Deputy President Gostencnik considered those proceedings in decisions in relation to previous applications for entry permits, specifically:
(a)Application by Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit to be issued to Mr Peter Joseph D'Arcy [2018] FWC 7283; and
(b)Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, Queensland Northern Territory Division Branch [2021] FWC 6612.
I gave the Union an opportunity to respond to the Office of the Fair Work Ombudsman’s correspondence. On the basis of the previous disclosure, and the Commission’s previous consideration of those proceedings, the Union submitted this matter should proceed to determination.
In each of his previous decisions referred to above, Deputy President Gostencnik decided that Mr D’Arcy was a fit and proper person to hold an entry permit, and that an entry permit should issue. On the basis of the material before me there have been no changes in circumstances warranting a different finding in relation to the present application.
The permit qualification matters weigh in favour of a conclusion that Mr D’Arcy is a fit and proper person to hold an entry permit and exercise the powers, functions, and responsibilities attached to holding a permit.
The training course that Mr D’Arcy completed on 27 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 relates to workers in the textile, clothing, or footwear industry). Accordingly, and having taken into account the permit qualification matters I impose the following condition pursuant to s 515 of the Fair Work Act:
Peter Joseph D’Arcy 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 s 513(1)(a) to (g) of the Act, I am satisfied, on balance, that Mr D’Arcy is a fit and proper person to hold a right of entry permit.
I am satisfied that it is appropriate to exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr D’Arcy with an entry permit.
I have considered whether any conditions should be imposed on any entry permit issued to Mr D’Arcy 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 s 512 of the Fair Work Act 2009 (Cth) (‘Fair Work Act’).
[2] Fair Work Act s 478.
[3] [2015] FWC 1522 per Hatcher VP as His Honour then was.
[4] [2015] FCAFC 56 per North, Flick and Bromberg JJ.
[5] Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 per North, Flick and Bromberg JJ at [35]-[36].
[6] Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024, item 2.
[7] Ibid, item 3.
[8] Ibid, item 6(3).
[9] The registered rules of the Construction, Forestry and Maritime Employees Union, Construction and General Division and
Construction and General Divisional Branches.
[10] That decision was made in relation to matter number BRG 305 of 2018.
Printed by authority of the Commonwealth Government Printer
<PR782209>
0
5
0