Construction, Forestry and Maritime Employees Union-Construction and General Division, SA Divisional Branch
[2024] FWC 391
•18 MARCH 2024
| [2024] FWC 391 |
| 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
(RE2023/1181)
| DEPUTY PRESIDENT GOSTENCNIK | SYDNEY, 18 MARCH 2024 |
Application for a right of entry permit for Michael Scott Jackson – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Jackson is a fit and proper person to hold a permit – application for entry permit granted – permit to be issued.
The Construction, Forestry and Maritime Employees Union (CFMEU) applied to the Commission under s 512 of the Fair Work Act 2009 (Cth) (Act) for a right of entry permit to be issued to its official, Mr Michael Scott Jackson. Mr Jackson is employed by the CFMEU as a Senior Construction Coordinator/Organiser.
Mr Jackson has held an entry permit under the Act. Mr Jackson’s most recently held permit was issued on 14 November 2019 and returned on 26 February 2021.[1]
The applicable principles for determining right of entry permit applications under s 512 of the Act are well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder, the subject of an application for a permit, is assessed taking into account the permit qualification matters set out in s 513(1), having regard to the rights a permit holder can exercise under Part 3-4, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in some abstract sense. The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit and exercise the powers, functions and responsibilities attached to holding a permit.[2] The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.
The permit qualification matters contained in s 513(1) of the Act are mandatory considerations which must be taken into account, and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others,[3] that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s 513 means that each of the matters must be treated as a matter of significance in the decision-making process,[4] which must be evaluated and accorded appropriate weight.[5]
The weight given to a particular matter is ultimately a matter for the Commission, however, in ascribing weight to each matter, care should be taken to ensure that a relevant factor of great importance is given adequate weight and that excessive weight to a relevant factor of no great importance is not ascribed.[6]
Having regard to the structure and content of s 513 of the Act, in deciding whether a proposed permit holder is a fit and proper person to hold an entry permit all the permit qualification matters identified in s 513(1) of the Act must be taken into account. The absence of, for example, a conviction of a proposed permit holder of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty is relevant in the assessment, just as a conviction of a proposed permit holder for such an offence would be. The absence of such a conviction must be accorded appropriate weight.
Section 513(1)(g) of the Act requires the Commission to take into account any other matter it considers relevant. A matter will be relevant if it can rationally affect the assessment of whether the proposed permit holder is a fit and proper person to hold an entry permit. Matters that may be relevant and therefore fall to be considered under s 513(1)(g) are matters that relate to the personal characteristics of the proposed permit holder and are pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.
In support of its application, the CFMEU filed declarations by Mr Jackson, Mr David Vroland, Legal Officer of the CFMEU, and Mr Marcus Pare, the Divisional Assistant State Secretary of the CFMEU. The declarations by Messrs Jackson and Pare disclose adverse matters not considered in the previous application for the issue of a right of entry permit for Mr Jackson.
The permit qualification matters which weigh in favour of the conclusion that Mr Jackson is a fit and proper person to hold a right of entry permit are that:
· Mr Jackson has received appropriate training about the rights and responsibilities of a permit holder on the subject of federal right of entry on 27 November 2023,[7] and also on 17 October 2023 (s 513(1)(a) of the Act);[8]
· Mr Jackson has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[9]
· Mr Jackson has 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;[10]
· Mr Jackson has not had any entry permit used under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s 513(1)(e) of the Act);[11]
· Mr Jackson has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Jackson 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);[12] and
· Mr Jackson has 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).[13]
Messrs Jackson and Pare are not aware of any other matter that may be relevant to whether Mr Jackson is a fit and proper person to hold a permit.[14]
Section 513(1)(b) and (d) of the Act
Sub-section 513(1)(b) and (d) of the Act relevantly provide as follows:
“513 Considering application
(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:
…
(b) whether the official has ever been convicted of an offence against an industrial law;
..
(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;
…”
The declarations of Messrs Jackson and Pare disclose that Mr Jackson was a respondent in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Morphettville Park Case) [2021] FCA 1640 (23 December 2021). Mr Jackson was ordered to pay a penalty of $2,500 arising from his admission that he contravened s 500 of the Act by acting in an improper manner by White J in the Morphettville Park Case. These declarations disclose that White J determined that Mr Jackson “acted in an aggressive and abusive manner during a discussion with a worker and project manager on a building site in Morphettville in South Australia” on 14 February 2020 and that his employer (now the CFMEU) was ordered to pay a civil remedy penalty of $27,500 in relation to his conduct.
In the Morphettville Park Case, White J at [32] described Mr Jackson’s conduct as “unprovoked, unnecessary and involved a form of abuse of the statutory right of entry granted to him” and “intentional”. Furthermore, White J at [33] stated that “the penalties should be imposed on the basis that Mr Jackson chose, in the absence of any provocation, to act aggressively, to use abusive language and to make a threat”. White J at [47] stated that neither Mr Jackson or his employer “made any expression of contrition or regret” and his employer had “not provided any evidence of action taken by it with a view to ensuring that there will not be a repetition of conduct of this kind again”.
The seriousness of the contravening conduct, the fact that the contravention was of s 550 of the Act and the absence of contrition at the time lend additional weight to a permit qualification matter (the penalty imposed), already weighing against a conclusion that Mr Jackson is a fit and proper person to hold an entry permit. Against this must be weighed the absence of any adverse conduct which would trigger the other negatively weighing permit qualification matters. As I earlier noted, the permit qualification matters identified in s 513(1) of the Act must all be taken into account and given weight. And the absence of a relevant conviction or the imposition of conditions of his previous permit must be accorded appropriate weight. Moreover, although Mr Jackson might not have shown contrition, he did admit the contravention alleged in the Morphettville Park Case, which is to his credit. Moreover, Mr Jackson has recently completed a right of permit training course and over 4 years has passed since the Mr Jackson’s contravention.
Additionally, there is no record of any subsequent contravening or inappropriate conduct of Mr Jackson, following the penalty imposed by the Court in the Morphettville Park Case.
Taken together, although the contravening conduct in which Mr Jackson engaged the subject of the Morphettville Park Case is serious, the one and only adverse permit qualification matter is not sufficiently significant as to outweigh the other matters which must be considered in the balance, which all tend to favour a conclusion that Mr Jackson is a fit and proper person to hold a right of entry permit.
Conclusion
For the reasons stated above, I am satisfied that Mr Michael Scott Jackson 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 Jackson is granted. A permit will be issued separately to Mr Jackson.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR771284>
[1] RE2019/957
[2] Maritime Union of Australia [2014] FWCFB 1973 at [23]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522 at [32]
[3] [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen [1989] HCA 39, (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]
[4] Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121, (2000) ATPR 41-742; Edwards v Giudice [1999] FCA 1836, (1999) 94 FCR 561 and National Retail Association v Fair Work Commission [2014] FCAFC 118, (2014) 225 FCR 154
[5] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184 (cited with approval by Hely J in Elias v Federal Commissioner of Taxation [2002] FCA 845, (2002) 123 FCR 499 at [62] and by Katzmann J in Construction, Forestry, Mining and Energy Union v Hamberger and Another [2011] FCA 719, (2011) 195 FCR 74 at [103]
[6] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at 41 [15]
[7] Declaration by Mr David Vroland dated 1 December 2023 at [4] and [5]; Form F42, Declaration by Mr Michael Jackson dated 18 December 2023 at (m)
[8] Form F42, Declaration by Mr Michael Jackson dated 18 December 2023 at (m)
[9] Form F42, Declaration by Mr Marcus Pare dated 18 December 2023 at (a); Form F42, Declaration by Mr Michael Jackson dated 18 December 2023 at (n)
[10] Form F42, Declaration by Mr Marcus Pare dated 18 December 2023 at (b); Form F42, Declaration by Mr Michael Jackson dated 18 December 2023 at (o)
[11] Form F42, Declaration by Mr Marcus Pare dated 18 December 2023 at (d); Form F42, Declaration by Mr Michael Jackson dated 18 December 2023 at (q)
[12] Form F42, Declaration by Mr Marcus Pare dated 18 December 2023 at (e); Form F42, Declaration by Mr Michael Jackson dated 18 December 2023 at (r)
[13] Form F42, Declaration by Mr Marcus Pare dated 18 December 2023 at (f); Form F42, Declaration by Mr Michael Jackson dated 18 December 2023 at (s)
[14] Form F42, Declaration by Mr Marcus Pare dated 18 December 2023 at (g); Form F42, Declaration by Mr Michael Jackson dated 18 December 2023 at (t)
Printed by authority of the Commonwealth Government Printer
<PR771284>
0
1
0