Construction, Forestry and Maritime Employees Union - Construction and General Division - Queensland Northern Territory Divisional Branch
[2024] FWC 3303
•28 NOVEMBER 2024
| [2024] FWC 3303 |
| 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
(RE2024/1036)
| DEPUTY PRESIDENT BUTLER | BRISBANE, 28 NOVEMBER 2024 |
Application by CFMEU for issue of right of entry permit for Thomas Bellgardt – satisfied that fit and proper person – permit issued
On 4 October 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 Thomas Bellgardt.[1] The Union filed a revised application on 10 October 2024.
The Applicant says that Mr Bellgardt 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 Bellgardt 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 Fair Work 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 Bellgardt and Mr Dunbar as contemplated by the Commission’s prescribed form. Relevantly, according to those declarations:
(a)since the declarations made in support of his application for Mr Bellgardt’s previous permit, there have been no changed circumstances as to the permit qualification matters;
(b)Mr Bellgardt relies on evidence previously submitted to the Commission of his entry permit training that had been completed within the last 6 years;
(c)there are no other matters (of which the declarants are aware) that may be relevant to whether Bellgardt is a fit and proper person to hold a permit.
As to training, Mr Bellgardt’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 9 September 2021.
I accept that the information set out in the previous paragraphs, as disclosed in the declarations made by Mr Bellgardt and Mr Dunbar concerning these matters, is true and correct.
However, a matter has arisen since Mr Bellgardt made his declaration on 10 October 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.[10] 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,[11] which was not the case here. Mr Bellgardt’s previous permit expired on 12 October 2024. It was due to be returned by 19 October 2024 but was not returned by that date. The failure to return an expired permit is not a trivial matter, as s 517(1) is a civil remedy provision.
On 5 November 2024, I issued directions for the Applicant to file submissions and supporting affidavits. I indicated it would assist if the Applicant could address, in its materials, whether the permit had been returned and if not whether that was a matter that should be considered under section 513(1)(g) of the Fair Work Act. The Union returned the permit by express post sent that same day, and indicated the failure to return it earlier had been an oversight.
I listed the matter for mention on 8 November 2024. Mr Bellgardt appeared, along with Industrial Officer Elliot Dalgliesh. At the mention Mr Bellgardt 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, particularly as there would be less call for a Trainer to exercise a right of entry than, for example, an Organiser. Nonetheless the late return of the previous entry permit weighs against the proposition that Mr Bellgardt is a fit and proper person to hold an entry permit.
The application was provided to the Office of the Fair Work Ombudsman for consideration on 10 October 2204. The Office of the Fair Work Ombudsman has responded and has not provided any additional information in respect of the application. Accordingly, no other matters, relevant to whether Mr Bellgardt is a fit and proper person to hold a permit, arise from any communication between the Registry and the Fair Work Ombudsman.
The training course that Mr Bellgardt completed on 9 September 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:
Thomas Bellgardt 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
The issue I have identified above in relation to s 513(1)(g) of the Fair Work Act is outweighed by the other matters to be considered under s 513(1), which support Mr Bellgardt’s case that he is a fit and proper person to hold an entry permit.[12]
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 Bellgardt is a fit and proper person to hold an entry permit and exercise the powers, functions, and responsibilities attached to holding an 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 Bellgardt with an entry permit.
I have considered whether any conditions should be imposed on any entry permit issued to Mr Bellgardt 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.
[2] Fair Work Act 2009 (Cth) s 478 (‘Fair Work Act’).
[3] [2015] FWC 1522 per Hatcher VP as His Honour then was.
[4] [2015] FCAFC 56 per North, Flick and Bromberg JJ.
[5] Ibid, [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] Fair Work Act s 516(1).
[11] Fair Work Act s 516(1).
[12] See also Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division [2024] FWC 1645.
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