Construction, Forestry and Maritime Employees Union, Construction and General Division, Queensland-Northern Territory Divisional Branch
[2024] FWC 3372
•4 DECEMBER 2024
| [2024] FWC 3372 |
| 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, Queensland-Northern Territory Divisional Branch
(RE2024/978)
| DEPUTY PRESIDENT BUTLER | BRISBANE, 4 DECEMBER 2024 |
Application by CFMEU for issue of right of entry permit for Matthew John Clark – satisfied that fit and proper person – permit issued.
On 18 September 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 for Matthew John Clark. Mr Clark was previously known as Matthew John Parfitt.[1]
The application indicated that Mr Clark holds the position of Trainer with the Queensland-Northern Territory Divisional Branch (‘the Qld-NT Branch’) of the Construction and General Division (‘the Division’) of the Union. Mr Clark has since resumed duties as an organiser. Mr Clark 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 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 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]
Submissions
I issued directions for the Applicant to file written submissions and affidavit material, if any, by 28 October 2024. At the Applicant’s request, I issued further directions providing for a longer period, to 18 November 2024. The Applicant provided written submissions and attachments on 18 November 2024.
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 Clark 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 preceding (then current) permit, there has been changed circumstances regarding the permit qualification matters, specifically in Fair Work Ombudsman v Construction, Forestry, Maritime, Mining, and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 3) [2023] FCA 219, as seventh respondent, Mr Parfitt (as he was previously known) was ordered to pay pecuniary penalties totaling $10,000.00.
(b)Mr Clark has received appropriate training about the rights and responsibilities of a permit holder, relying on evidence previously submitted in the Commission.
(c)There are no other matters (of which the declarants are aware) that may be relevant to whether Mr Clark is a fit and proper person to hold a permit.
As to training, Mr Clark’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 1 July 2021.
I accept that the information set out in the previous paragraph, as disclosed in the declarations made by Mr Clark and Mr Dunbar concerning these matters, is true and correct. Save for the reference to Fair Work Ombudsman v Construction, Forestry, Maritime, Mining, and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 3) [2023] FCA 219 (‘the Bruce Highway decision’), these matters weigh in favour of issuing an entry permit.
Bruce Highway decision
The Commission considered the Bruce Highway decision in In the matters of the Entry Permits of Mr Paul Fitzpatrick and Mr Matthew John Clark [2023] FWC 1189. In that decision Deputy President Gostencnik considered whether to suspend or revoke Mr Clark’s entry permit pursuant to s 510 of the Fair Work Act. The contraventions in the Bruce Highway decision had arisen from Mr Clark misunderstanding a provision of the Work Health and Safety Act 2011 (Qld), and that misunderstanding had been corrected by the litigation and by direction from the union. He decided that no protective or corrective purpose would be served by suspending or revoking Mr Clark’s permit, and that doing so would be unreasonable in the circumstances.
The Union points out the events giving rise to this matter happened over six years ago. It has also provided a certificate showing Mr Clark fulfilled all the requirements for the Workplace Health and Safety Queensland WHS Entry Permit Holder Training Course on 10th October 2024, and Mr Clark confirmed this at a mention I conducted on 29 November 2024, which is referred to further below.
Fair Work Ombudsman comment
The Registry sought comment from the Office of the Fair Work Ombudsman on 27 September 2024. The Office of the Fair Work Ombudsman has responded on 3 October 2024. In its response it referred to Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59. The first instance decision giving rise to that appeal was Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Case) (No 3) [2018] FCA 564. I will refer to these matters generally as “the Nine Brisbane Sites litigation.” Mr Clark had previously disclosed this litigation, in his declarations in support of his 2019 and 2021 applications for an entry permit. The declaration form asks for disclosure of changed circumstances since the previous declaration. I put the Office of the Fair Work Ombudsman’s comments to the Union so that it would have an opportunity to respond in its submissions.
In deciding Mr Clark’s 2019 application for a permit, Deputy President Saunders found the matters the subject of that proceeding weighed against Mr Clark’s fitness and propriety to hold a right of entry permit.[10] But, after weighing all the permit qualification matters, he was satisfied that Mr Clark was a fit and proper person, and he decided the permit should be issued.
The union says Mr Clark ceased to be an official and worked in a variety of other roles in construction, between 2020 and 2021.
Deputy President Gostencnik considered the Nine Brisbane Sites Appeal and associated litigation in deciding Mr Clark’s more recent application for a permit in 2021.[11] He took into account Deputy President Saunders’ earlier permit decision. He found that the imposition of a penalty on Mr Clark, and on the Union by reason of Mr Clark’s contravening conduct, was a matter that weighed against a conclusion that he was a fit and proper person to hold an entry permit.[12] He also accepted the Union’s submission that Mr Clark had acknowledged and accepted the nature and seriousness of his contravening conduct. He found the matters weighing against Mr Clark being found to be a fit and proper person were outweighed by the matters in favour, and issued the permit.
I agree with Deputy Presidents Saunders and Gostencnik that the matters the subject of the Nine Brisbane Sites litigation weigh against a finding that Mr Clark is a fit and proper person. I also note, as they did, that Mr Clark admitted his wrongdoing and co-operated, and that significant time has passed – now more than eight years – since the events giving rise to that litigation.
Expired permit
Another matter has arisen since Mr Clark made his declaration on 18 September 2024. 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.[13] 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,[14] which was not the case here. Mr Clark’s previous permit expired on 30 September 2024. It was due to be returned by 7 October 2024, though because 7 October 2024 was a public holiday the return date would have been 8 October 2024. But the permit was not returned in time. The failure to return an expired permit is not a trivial matter, as s 517(1) is a civil remedy provision.
The Union submitted that the entry permit had not been returned because of an oversight, and that Mr Clark had not used the permit since its expiry. I listed the matter for mention on 29 November 2024. Mr Clark appeared, along with Industrial Officer Elliot Dalgliesh. At the mention Mr Clark confirmed that the failure to return the permit had been an oversight, and that he had not had cause to use his entry permit between its expiry date and the date on which it had been returned. I accept this. Nonetheless the late return of the previous entry permit weighs against the proposition that Mr Clark is a fit and proper person to hold an entry permit.
Conclusion
The matters in relation to the Nine Brisbane Sites litigation and the Bruce Highway decision have previously been considered by this Commission. The Nine Brisbane Sites litigation was not, when weighed against other permit qualification matters, sufficient to prevent the Commission being satisfied that Mr Clark was a fit and proper person. The Bruce Highway decision did not warrant suspension or revocation of Mr Clark’s permit and arose from his misunderstanding of a provision of the Work Health and Safety Act 2011. In respect of each, having regard to the passage of time, the training Mr Clark has undertaken, and the absence of any material before me showing any similar conduct since, I accept the Union’s submission that Mr Clark is unlikely to engage in similar conduct again. I also accept there was no attempt to exercise right of entry after the expiry of the previous permit, notwithstanding its late return.
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 Matthew John Clark 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 Matthew John Clark with an entry permit.
I have considered whether any conditions should be imposed on any entry permit issued to Matthew John Clark in conjunction with my consideration of whether he is a fit and proper person to hold an entry permit.
The training course that Mr Clark completed on 1 July 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:
Matthew John Clark 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.]
I have concluded that a condition should be imposed, as set out above. No other conditions need to be imposed. A permit will be issued.
DEPUTY PRESIDENT
Submissions:
Submissions of the Applicant, 18 September 2024.
[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] Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch [2019] FWC 4166 at [17] to [19].
[11] Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, Queensland Northern Territory Divisional Branch (Re Clark) [2021] FWC 600.
[12] Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, Queensland Northern Territory Divisional Branch (Re Clark) [2021] FWC 6008 at [14].
[13] Fair Work Act s 516(1).
[14] Fair Work Act s 516(1).
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