Construction, Forestry and Maritime Employees Union-Construction and General Division, Victoria-Tasmania Divisional Branch
[2024] FWC 3561
•20 DECEMBER 2024
| [2024] FWC 3561 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512 - Right of Entry
Construction, Forestry and Maritime Employees Union-Construction and General Division, Victoria-Tasmania Divisional Branch
(RE2024/1194)
| COMMISSIONER CONNOLLY | MELBOURNE, 20 DECEMBER 2024 |
Application by CFMEU for an Entry Permit for Andrew Campbell Houston
On 27 November 2024 the Construction, Forestry and Maritime Employees Union Construction and General Division – Victoria/Tasmania (CFMEU/the Applicant) made an application under s.512 of the Fair Work Act 2009 (the FW Act) for a Right of Entry permit to be issued to Mr Andrew Campbell Houston.
Mr Houston has not previously been issued with a Right of Entry permit.
The application included a declaration from Mr Houston that all the information in his application is true and correct as required. Also included was a declaration by Mr Zachary Smith, National Secretary of the CFMEU Construction and General Division acting with delegated authority from CFMEU Administrator, Mr Mark Irving KC with respect of the CFMEU Victoria/Tasmania Branch. Mr Smith’s declared that he had made proper enquiries with, and about, Mr Houston in relation to the application and that he believed Mr Houston is a fit and proper person to hold an entry permit.
Statutory Provisions
The provisions concerning entry permits are to be found in Part 3-4 of the FW Act which deals with right of entry. The object of Part 3-4 is set out in s.480:
480 Object of this Part
The object of this Part is to establish a framework of officials of organisations to enter premises that balances:
(a) The right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i)This Act and fair work instruments; and
(ii)State or Territory OHS laws; and
(b) The right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) The right of occupiers of premises and employers to go about their business without undue inconvenience.
Section 512 of the FW Act states:
512 FWC may issue entry permits
The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.
Section 513(1) of the FW Act states:
513 Considering applications
(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:
(a)whether the official has received appropriate training about the rights and responsibilities of a permit holder;
(b)whether the official has ever been convicted of an offence against an industrial law;
(c)whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving:
(i)entry onto premises; or
(ii)fraud or dishonesty; or
(iii)intentional use of violence against another person or intentional damage or destruction of property;
(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;
(e)whether a permit issues to the official under this part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;
(f)whether a court, or other person or body, under a State of Territory industrial law or a State or Territory OHS law, has;
(i)cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or
(ii)disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;
(g)any other matters that the FWC considers relevant.
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.[1] 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. 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,[2] which must be evaluated and accorded appropriate weight.[3]
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.[4]
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.
I turn now to consider Mr Houston’s application.
Consideration
In determining this application, I have considered the declarations provided by both Mr Houston and Mr Smith with respect of the requirements of s.513 and I accept the information in the declarations concerning these requirements.
Mr Smith’s declaration provided details of the enquires made, including:
i)Whether Mr Houston had previously applied for/held an entry permit;
ii) A check of the union’s internal records;
iii)A search of Mr Houston’s name through the Commonwealth Courts Portal, Federal Law Search;
iv)A search of the Mr Houston’s name through the Fair Work Commission website, decisions and orders;
v) A search of Mr Houston’s name through the Fair Work Ombudsman’s website;
Mr Smith further declared on 27 November 2024, that he met with Mr Houston two days earlier to discuss the requirements of s.513 of the FW Act at which Mr Houston confirmed he had no matters to disclose.
Mr Houston’s application was accompanied by a permit checklist form completed by the Registered Organisations Services Branch, Permits and Lodgements of the Fair Work Commission. The checklist confirmed Mr Houston’s application meet the requirement for approval. The material indicated Mr Houston’s application was also provided to the Fair Work Ombudsman (FWO) on 28 November 2024 and no concerns were raised.
The application was further support by a declaration by CFMEU Legal and Industrial Officer, Mr Campbell Smith indicating that on 29 October 2024 that he had provided, and Mr Houston successfully completely, approved FW Act and TCF Right of Entry Training packages as required.
Mr Houston’s application was referred to my Chambers on 6 December.
On reviewing Mr Houston’s application and supporting material, I convened a short mention with the Applicant on Monday 16 December.
I have not received any further information or identified any other concern that I consider relevant to whether Mr Houston is a fit and proper person to hold an entry permit.
Conclusion – Permit Issued
I considered and weighed each of the permit qualification matters set out in s513(1)(a) to (g) of the Act, and I am satisfied, on balance that Mr Houston is a fit and proper person to hold a right of entry permit. The application by the CFMEU for an entry permit to be issued to Mr Houton is granted.
A permit will be issued separately.
COMMISSIONER
Hearing
16 December 2024
Melbourne
Hearing via Microsoft Teams
<PR782728>
[1] 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]
[2] 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; 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
[3] 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])
[4] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15], p 41
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