Construction, Forestry and Maritime Employees Union, Construction and General Division, Queensland-Northern Territory Divisional Branch

[2024] FWC 2904

[2024] FWC 2904

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Construction, Forestry and Maritime Employees Union, Construction and General Division, Queensland-Northern Territory Divisional Branch

(RE2024/983)

DEPUTY PRESIDENT BUTLER BRISBANE, 21 OCTOBER 2024

Application by CFMEU for issue of right of entry permit for Mitchell David Thurlow– satisfied that fit and proper person – permit issued.

1. On 19 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 Act2009 (Cth) (the Fair Work Act) for an entry permit[1] for Mr Mitchell David Thurlow.

1. The Applicant says that Mr Thurlow holds the position of Organiser 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 Thurlow has not previously held an entry permit.

Statutory Framework

1. 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]

1. 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.

1. 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.

1. 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.

1. 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]

1. 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

1. 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.

1. 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.

1. In support of its application, the Union filed declarations by Mr Thurlow and Mr Dunbar as contemplated by the Commission’s prescribed form. According to those declarations:

a.   Mr Thurlow has received appropriate training about the rights and responsibilities of a permit holder, by completing an approved right of entry training course on 19 September 2024;

b.   Mr Thurlow has never been convicted of an offence against an industrial law;

c.   Mr Thurlow has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, or fraud or dishonesty, or intentional use of violence against another person or intentional damage or destruction of property;

d.   neither Mr Thurlow nor any other person has been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by Mr Thurlow;

e. Mr Thurlow has not had any entry permit issued under Part 3–4 of the Act or a similar law of the Commonwealth revoked, suspended or made subject to conditions;

f.    Mr Thurlow has not had an entry permit under State or Territory industrial or occupational health and safety laws which has been cancelled, suspended or been made subject to conditions, nor has he been disqualified under such laws from exercising or applying for an entry permit; and

g.   there are no other matters (of which the declarants are aware) that may be relevant to whether the Mr Thurlow is a fit and proper person to hold a permit.

1. I accept that the information set out in the previous paragraph, as disclosed in the declarations made by Mr Thurlow and Mr Dunbar concerning these matters, is true and correct.

1. The application was provided to the Office of the Fair Work Ombudsman for consideration on 27 September 2024. 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 Thurlow is a fit and proper person to hold a permit, arise from the response.

1. The permit qualification matters weigh in favour of a conclusion that Mr Thurlow is a fit and proper person to hold an entry permit and exercise the powers, functions, and responsibilities attached to holding a permit.

1. The training course that Mr Thurlow completed on 19 September 2024 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:

   Mitchell David Thurlow 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

1. 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 Thurlow is a fit and proper person to hold a right of entry permit.

1. 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 Thurlow with an entry permit.

1. I have considered whether any conditions should be imposed on any entry permit issued to Mr Thurlow 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 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.

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