Construction, Forestry and Maritime Employees Union-Construction and General Division, Victoria-Tasmania Divisional Branch
[2024] FWC 3405
•6 DECEMBER 2024
| [2024] FWC 3405 |
| 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, Victoria-Tasmania Divisional Branch
(RE2024/1132)
| COMMISSIONER CONNOLLY | MELBOURNE, 6 DECEMBER 2024 |
Application for a right of entry permit for Jason Francis Ian Deans – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Deans is a fit and proper person to hold a permit – permit issued.
On 31 October 2024 the Construction, Forestry and Maritime Employees Union-Construction and General Division, Victoria-Tasmania Divisional Branch (CFMEU) made an application under s.512 of the Fair Work Act 2009 (the FW Act) for the renewal of an existing right of entry permit granted to Mr Jason Francis Ian Deans on 10 December 2021.[1] On the same day, an application was also made to extend this permit until such time as the Commission has determined the renewal application.[2]
The application included a declaration from Mr Deans 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 declared that he had made proper enquiries with, and about, Mr Deans in relation to the application and that he believed Mr Deans is a fit and proper person to hold an entry permit.
Mr Smith’s declaration provided details of the enquires made, including:
i)Whether Mr Deans had previously applied for/held an entry permit;
ii) A check of the union’s internal records;
iii)A search of Mr Deans’ name through the Commonwealth Courts Portal, Federal Law Search;
iv)A search of Mr Deans’ name through the Fair Work Commission website, decisions and orders; and
v) A search of Mr Deans’ name through the Fair Work Ombudsman’s website.
Further, Mr Smith declared that on 29 October 2024 he met with Mr Deans to discuss the requirements of s.513 of the FW Act, at which Mr Deans confirmed he had no matters to disclose except for the following:
i)As previously disclosed in his previous permit application in the matter of Stuart-Mahoney v Construction, Forestry, Mining and Energy Union and Anor (No 2) [2008] FMCA 1015, he and the CFMEU were required to pay penalties in relation to conduct in 2006;
ii)He was named as an individual Respondent in VID206/2022 – Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union & Ors, but the Applicant discontinued proceedings against him; and
iii)He is a “removed person” for the purposes of s177A of the FW Act and s.323MB of the FWRO Act and that his status as a removed person has arisen automatically and solely pursuant to s.177A(1)(a)(i) of the FW Act and s.323MA(1)(a)(i) of the FWRO Act upon the commencement of the operation of the Fair Work (Registered Organisation) (CFMEU Construction and General Division Administration) Determination 2024 and that his status as a removed person is not attributable to any specified conduct on Mr Deans’ part.
Upon review of Mr Deans’ application, I am satisfied that the application meets the requirement for approval. The material indicated Mr Deans’ applications were also provided to the Fair Work Ombudsman (FWO) for their review and comment on 1 November 2024.
Mr Deans’ application was referred by my Chambers on 14 November 2024.
On reviewing Mr Deans’ application and supporting material, on 27 November 2024, I again wrote to the FWO and requested any further information or concerns relevant to the considerations required under s.513 of the Act. This was to be provided to my Chambers by 5 December 2024.
I have not received any further information. Accordingly, I have determined to matter on the material before me.
The Legislative 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 for 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 application
(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 issued 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 or 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.
Consideration
In CFMEU, Victoria-Tasmania Division [2017] FWC 666 referencing the decision of Justice Hatcher (Vice President Hatcher, as his Honour was then) in Communications, Electrical, Electronic, Energy, Information, Postal, Pluming and Allied Services Union of Australia,[3] Deputy President Gostencnik helpfully set out the contemporary principles relevant to the interpretation and application of s.512 and 513(1).[4] I have applied these principles to the circumstances of this application.
Mr Deans was previously granted a right of entry permit on 10 December 2021. Since that time there have been no occasions when Mr Deans has been found to have acted contrary to his obligations under the Act as an authorised permit holder that have been brought to my attention.
I have taken steps to further satisfy myself that this is the case. On receipt of Mr Deans’ application and supporting materials, I have sought further confirmation from the FWO on whether there was any additional information or concerns it held with respect to Mr Deans’ application for it to be provided to the Commission.
No additional information or concerns have been identified or provided.
Both Mr Deans and Mr Smith attest in their declarations to the Commission that there has been no specified conduct on the part of Mr Deans with respect to his status as a removed person. There is no evidence before me to the contrary and I am satisfied this is the case.
Further, I am satisfied that Mr Deans has received appropriate training about his rights and responsibilities as a permit holder and that he is successfully complied with the requirements of his existing entry permit since it was issued in December 2021 (s. 513(1)(a)).
I have considered the declarations provided by both Mr Deans and Mr Smith with respect of the requirements of s.513 and I accept the information in the declarations concerning these requirements. On this basis, I am satisfied that Mr Deans has never been convicted of an offence against a law of the Commonwealth, State or Territory or foreign country involving; entry to premises; fraud or dishonesty; intentional use of violence against a person; intentional damage or destruction of property (s.513(1)(c)).
Similarly, I have considered, and I am satisfied that Mr Deans has never had an entry permit revoked, suspended or made subject to conditions (s.513(1)(e).
With respect to whether Mr Deans has ever been convicted of an offence relevant to the requirements of s.513(1)(b) and whether he has ever been ordered to pay and penalty under the FW Act or any other industrial law in relation to actions by him (s.513(1)(d), I have considered Mr Deans’ disclosures in this regard that date back to 2006. It is accepted that past conduct is a relevant consideration for the purposes of the discretionary finding of whether a person seeking a right of entry permit is a fit and proper person under s.512 and that much will depend on the circumstances of each case.[5]
In the circumstances of this case, I have also considered that Mr Deans has previously been granted an entry permit and that the evidence before the Commission is that he has successfully met the requirements conferred on him by this privilege. I have also considered both the declarations of Mr Smith and Mr Deans in this regard and Mr Deans’ disclosures. I am satisfied these factors outweigh what Mr Deans has disclosed about his conduct almost 20 years ago.
In the present case, I do not consider there to be any other relevant matters that should be taken into account for the purposes of s.513(g). On this basis, having regard to the above and all the permit qualification matters, I am satisfied Mr Deans is a fit and proper person to hold an entry permit. He will accordingly be issued a permit.
As I have determined to grant this application, Mr Deans’ application for an extension (RE2024/1133) is dismissed.
COMMISSIONER
[1] RE2021/1295.
[2] RE2024/1133.
[3] [2015] FWC 1522 at [32].
[4] [2017] FWC 666 at [4]-[9].
[5] [2017] FWC 666.
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