Construction, Forestry and Maritime Employees Union, Construction and General Division, SA Divisional Branch

[2025] FWC 523

[2025] FWC 523

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 512—Right of entry

Construction, Forestry and Maritime Employees Union, Construction and General Division, SA Divisional Branch

(RE2025/71)

COMMISSIONER LIM PERTH, 20 FEBRUARY 2025

Application for a right of entry permit for Mr Mark Timothy Palmer – whether a fit and proper person to hold an entry permit under the Act – satisfied Mr Palmer is a fit and proper person to hold a permit – order revoking lost entry permit issued – permit issued.

1. The Construction, Forestry and Maritime Employees Union has applied to the Commission under s 512 of the Fair Work Act 2009 (Cth) for a right to entry permit to be issued to its official, Mark Timothy Palmer. Mr Palmer is employed by the CFMEU as an organiser. He is also the Divisional Branch Vice President.

1. Mr Palmer was issued an entry permit on Monday 30 May 2022,[1] which will expire on Friday 30 May 2025. Mr Palmer provided a statutory declaration,[2] in which he declared that on Tuesday 31 December 2024, he discovered that his right of entry permit had been stolen. Mr Palmer usually kept his permit in his car, and to the best of his knowledge, the last he saw his permit was Monday 30 December 2024. Mr Palmer immediately notified his office and filed a report with the South Australian Police. Mr Palmer accordingly cannot return his permit to the Commission and has not sought to exercise entry rights since discovering that his permit was stolen.

Consideration

Revoking the lost permit

1. The Commission does not appear to have general power under the Act to replace a lost or stolen entry permit.[3] So, the Commission will need to decide whether to revoke the lost permit, and whether to grant the application for a new permit.

2. The relevant power to revoke is found in s 603 of the Act. A decision to issue an entry permit is a decision for the purposes of that section,[4] and is not in a class of decisions excluded from the operation of the power to revoke, by s 603(3).[5]

1. The current entry permit, issued in matter RE2022/282, was issued by decision of an authorised delegate of the President of the Commission. The power to delegate is found in s 625 of the Act. By operation of s 34AB(1)(c) of the Acts Interpretation Act 1901 (Cth), “a function, duty or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority.” So, the fact that the decision was made by a delegate does not detract from a finding that it was a decision of the Commission, capable of being revoked, as set out above.

1. In light of the above, the Commission has a discretion to revoke the decision in matter RE2022/282. Taking into account Mr Palmer’s statutory declaration, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Mr Palmer.

The application for a new entry permit

1. In support of its application, the CFMEU filed declarations of 24 January 2025 by Mr Palmer and Mr Travis Hera Singh, Branch Executive Officer of the CFMEU Construction and General Division South Australia (the Declarations). I also note the prior decision of the Commission to grant Mr Palmer his most recent right of entry permit.[6]

Permit qualification matters – s 513(1)(a), (b), (c), (d), (e) and (f)

1. According to the Declarations and the material which accompanies them, Mr Palmer has:

• received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of federal right of entry conducted by on 23 March 2022 (s 513(1)(a) of the Act);[7]

• never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);

• never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s 513(1)(c) of the Act;

• never been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him, nor has any other person (s 513(1)(d) of the Act);

• not had any entry permit issued under Part 3-4 of the Act or similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permits (s 513(1)(e) of the Act);

• not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes that Mr Ahmed held under a State or Territory industrial law or a State or Territory occupational health and safety law (s 513(1)(f)(i) of the Act); and

• 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 (s 513(1)(f)(ii) of the Act).

1. I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. These matters weigh in favour of a conclusion that Mr Palmer is a fit and proper person to hold a right of entry permit.

1. Since the declarations were made, I have, as stated in these reasons, decided to revoke Mr Palmer’s permit issued on 30 May 2022. Given the circumstances that led to that entry permit being revoked, this is not a factor that weighs against a conclusion that Mr Palmer is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s 513(1)(g)

1. There are no other matters of which I am aware that I consider relevant to the determination of whether Mr Palmer is a fit and proper person to hold an entry permit.

Conclusion

1. Pursuant to s 603 of the Act, the entry permit RE2022/282 issued to Mr Palmer by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR784611.

1. Taking into account the permit qualification matters, and for the reasons earlier stated, I am satisfied that Mark Timothy Palmer is a fit and proper person to hold an entry permit. The application by the CFMEU for an entry permit to be issued to Mr Palmer is granted.

1. A permit will be separately issued.

COMMISSIONER

[1] RE2022/282.

[2] Statutory declaration of Mr Mark Timothy Palmer, dated 24 January 2025.

[3] Construction, Forestry and Maritime Employees Union [2024] FWC 808, [3].

[4] Fair Work Act 2009 (Cth), s 598; Construction, Forestry and Maritime Employees Union [2024] FWC 808, [11].

[5] Construction, Forestry and Maritime Employees Union [2024] FWC 808, [11].

[6] [2022] FWC 1355.

[7] A copy of the certificate of completion was filed with the application as an attachment to Mr Ahmed’s declaration.

Printed by authority of the Commonwealth Government Printer

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