Construction, Forestry and Maritime Employees Union-Construction and General Division, Victoria-Tasmania Divisional Branch
[2024] FWC 2183
•16 AUGUST 2024
| [2024] FWC 2183 |
| 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
(RE2024/794)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 16 AUGUST 2024 |
Application for a right of entry permit for Cameron James Wright
The Construction, Forestry and Maritime Employees Union (CFMEU) applies under s 512 of the Fair Work Act 2009 (Cth) (Act) for a right of entry permit to be issued to its employee, Cameron James Wright. Mr Wright is an Organiser in the CFMEU – Construction & General Division, Victoria/Tasmania.[1]
Mr Wright was issued an entry permit on 13 November 2015,[2] which expired on 13 November 2018. That entry permit was returned to the Commission on 16 November 2018, which was within the seven days of its expiration date.
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.[3] 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,[4] 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,[5] which must be evaluated and accorded appropriate weight.[6]
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.[7]
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.
Consideration
In support of its application, the CFMEU filed declarations by Mr Wright and Robert Graauwmans, Divisional Branch President – Construction & General Division, Victoria/Tasmania (Declarations).
According to the Declarations and supporting material, Mr Wright has:
a) Mr Wright has received training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry on 27 June 2024.[8] The course of training conducted by the ACTU Trade Union Institute is a course approved by the Commission and the training completed by Mr Wright is relevantly appropriate (s 513(1)(a) of the Act). In addition, Mr Wright had completed TCF Right of Entry, approved training, as of 26 June 2024;[9]
b) Mr Wright has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[10]
c) Mr Wright 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;[11]
d) Neither Mr Wright nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him (s 513(1)(d) of the Act);[12]
e) Mr Wright has 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);[13]
f) Mr Wright has not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes that Mr Wright 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);[14] and
g) Mr Wright 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 safe law (s 513(1)(f)(ii) of the Act).[15]
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 Wright is a fit and proper person to hold a right of entry permit.
Permit qualification matters – s 513(1)(g)
There are no other matters of which I am aware that I consider relevant to the determination of whether Mr Wright is a fit and proper person to hold an entry permit. I understand that the Fair Work Ombudsman has been proffered the opportunity to provide materials in response of the application but has not done so.
Conclusion
Taking into account the permit qualification matters, and for the reasons earlier stated, I am satisfied that Mr Wright 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 Wright is granted.
A permit with the abovementioned condition will be separately issued.
DEPUTY PRESIDENT
Determined on the papers.
[1] Form F42 – Application for an entry permit CFMEU dated 28 June 2024.
[2] RE2015/1588.
[3] Maritime Union of Australia [2014] FWCFB 1973 [23]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522 [32].
[4] [1986] HCA 40, (1986) 162 CLR 24; see alsoGriffiths v The Queen [1989] HCA 39, (1989) 167 CLR 372, 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 [65].
[5] 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.
[6] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 184 (cited with approval by Hely J in Elias v Federal Commissioner of Taxation [2002] FCA 845, (2002) 123 FCR 499 [62]).
[7] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24
[15], p41.
[8] ACTU Federal Right of Entry Training Certificate of Completion dated 27 June 2024; Form F42, Declaration by member of Committee of Management dated 2 August 2024 at (4); Form F42, Declaration by proposed permit holder dated 28 June 2024.
[9] Form F42, Declaration by member of Committee of Management dated 2 August 2024 at (4); Form F42, Declaration by proposed permit holder dated 28 June 2024 at (a); Declaration in accordance with s 513(1)(a) of David Vroland dated 28 June 2024.
[10] Form F42, Declaration by proposed permit holder dated 28 June 2024 (b); Declaration by member of Committee of Management dated 2 August 2024 (a).
[11] Form F42, Declaration by proposed permit holder dated 28 June 2024 (c); Declaration by member of Committee of Management dated 2 August 2024 (b).
[12] Form F42, Declaration by proposed permit holder dated 28 June 2024 (d); Declaration by member of Committee of Management dated 2 August 2024 (c).
[13] Form F42, Declaration by proposed permit holder dated 28 June 2024 (e); Declaration by member of Committee of Management dated 2 August 2024 (d).
[14] Form F42, Declaration by proposed permit holder dated 28 June 2024 (f); Declaration by member of Committee of Management dated 2 August 2024 (e).
[15] Form F42, Declaration by proposed permit holder dated 28 June 2024 (g); Declaration by member of Committee of Management dated 2 August 2024 (f).
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