Construction, Forestry and Maritime Employees Union-Construction and General Division, WA Divisional Branch

[2024] FWC 2926

[2024] FWC 2926

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Construction, Forestry and Maritime Employees Union-Construction and General Division, WA Divisional Branch

(RE2024/1070)

DEPUTY PRESIDENT BEAUMONT PERTH, 6 NOVEMBER 2024

Application for a right of entry permit for Stephen Barry Parker

1. The Construction, Forestry and Maritime Employees Union (CFMEU) applied under s 512 of the Fair Work Act 2009 (Cth) (Act) for a right of entry permit to be issued to its employee, Stephen Barry Parker (Mr Parker). Mr Parker is an Organiser in the CFMEU – Construction & General Division, WA Divisional Branch.[1]

1. Mr Parker was issued an entry permit on 11 January 2022.[2] It is understood that at the time of writing this decision, Mr Parker’s right of entry permit has not expired and therefore has not been returned.

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) of the Act, 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.

1. 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]

1. 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]

1. 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.

1. 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 under s 513(1)(g) to be considered 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

1. In support of its application, the CFMEU filed declarations by Mr Parker and Michael Buchan, State Secretary – CFMEU Construction & General Division, WA Divisional Branch (Declarations).

1. According to the Declarations and supporting material Mr Parker has:

a) save for training about exercising rights under Subdivision AA of Division 2 of Part 3-4 of the Act, received 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 the CFMEU Construction & General Division National Office on 11 October 2024.[8] The training completed by Mr Parker is relevantly appropriate (s 513(1)(a) of the Act);

b) never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[9]

c) 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);[10]

d) not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes that Mr Parker 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);[11] and

e) 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).[12]

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 Parker is a fit and proper person to hold a right of entry permit.

Convicted of an offence – s 513(1)(c)

1. In Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, WA Divisional Branch[13] (Parker Decision/Parker) the Deputy President outlined that Mr Parker had been convicted of three offences in relation to two separate incidents which were three years apart.[14] The Deputy President identified that on both occasions where Mr Parker was charged, he pleaded guilty as soon as he could, and the penalties imposed indicated that the relevant magistrate was satisfied that Mr Parker was otherwise of good character and unlikely to reoffend.[15] In the Declarations, Mr Parker gave detail of the historical convictions, all of which attracted a fine of $300.00.[16]

1. Mr Parker has 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.[17] However, in the Parker Decision the Deputy President accepted Mr Parker’s evidence and was ultimately satisfied that Mr Parker was a fit and proper person to hold a right of entry permit.[18] In light of the Parker Decision and that the Declarations and supporting material filed show no recidivism and no further convictions at this time, there are no grounds on which to deviate from that which was found by the Deputy President in Parker.

Ordered to pay a penalty

1. In the Declarations it was noted that whilst Mr Parker had never been ordered to pay a penalty under the Act of any other industrial law in relation to action he had taken, the CFMEU had been ordered to pay a penalty in respect of action taken by Mr Parker in Federal Court proceedings WAD185/2019 and WAD197/2020. In both proceedings the CFMEU admitted a contravention of s 500 of the Act relating to, among other things, the improper conduct of Mr Parker which occurred on 15 February 2019 and 5 December 2019, respectively.

1. In the Parker Decision, the Deputy President contemplated Mr Parker’s actions as detailed in the two proceedings, the response of the Federal Court on each occasion and Mr Parker’s evidence.[19] The Deputy President further observed that the Australian Building and Construction Commission, who had brought the proceedings against the CFMEU on both occasions, had not chosen to make submissions opposing Mr Parker’s permit application on that occasion.[20] The Deputy President was not persuaded that the proceedings detracted from Mr Parker being assessed as a fit and proper person.

1. The weight to be attributed to the convictions and proceedings referred to in the Declarations, the Parker Decision and paragraphs [13] and [14] of this Decision, is diminished by reason of: (a) their historical nature, given that it has been years since the relevant conduct occurred and in that time such conduct has been assessed and weighed in the Parker Decision; and (b) evidence that at this time Mr Parker has not reoffended.

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

1. Pursuant to s 513(1)(g) of the Act, in deciding whether Mr Parker is a fit and proper person, I must take into account any other matters that I consider relevant to whether Mr Parker is a fit and proper person to hold a right of entry permit.

1. The Fair Work Ombudsman (FWO) was proffered the opportunity to provide materials in response to the application. In response, the FWO informed the Commission that Mr Parker is a respondent to proceedings PEG402/2024 Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union & Anor.

1. Several decisions of this Commission have considered circumstances where there are pending proceedings against an applicant and a proposed permit holder, or a permit holder.[21] It was noted in Construction, Forestry, Mining and Energy Union – Construction and General Division, SA Divisional Branch[22], by the then Vice President, that probative evidence that the permit holder had committed contraventions (in that case of ss 348 and 355) of the Act would clearly be a relevant matter required to be considered under s 513(1)(g) of the Act.

1. The CFMEU was provided the opportunity to respond to the FWO’s correspondence. It submitted that the proceedings in PEG402/2024 were served on the CFMEU and Mr Parker on 23 October 2024, and involved allegations which were, at this time, mere assertions. The CFMEU submitted that there was no evidence, let alone probative evidence, before the Commission that Mr Parker engaged in the contravening conduct alleged in PEG402/2024, and that the fact that allegations of contravention had been made against Mr Parker could not bear, directly or indirectly, on the assessment of his fitness and proprietary to hold an entry permit. It followed, said the CFEMU, that the instigation of the proceedings against Mr Parker and the allegations made against him in the proceedings, therefore, could not be taken into account under s 513(g) of the Act or otherwise in assessing his present fitness and proprietary to be issued an entry permit.

1. Consistent with the approach taken by the Commission in relation to extant proceedings, proceedings PEG402/2024 is not a factor to take into account in determining whether Mr Parker is a fit and proper person to hold a right of entry permit.

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

Conclusion

1. After taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act, I am satisfied, on balance, that Mr Parker is a fit and proper person to hold a right of entry permit. The matters which weigh in favour of a finding that Mr Parker is a fit and proper person to hold a right of entry permit outweigh those that may weigh against such a conclusion.

1. I have considered whether any conditions should be imposed on any entry permit issued to Mr Parker conjointly with my consideration of whether he is a fit and proper person to hold an entry permit. Whilst satisfied that Mr Parker is a fit and proper person to hold an entry permit, that entry permit is subject to the following condition:

Stephen Barry Parker must not exercise rights under Subdivision AA of Division 2 of Part 3-4 of the Act until he had completed appropriate training in relation to that subdivision and he has filed a copy of the training completion certificate to the Fair Work Commission.

1. In the circumstances, I am satisfied that it is appropriate to exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Parker with an entry permit. An entry permit will be separately issued.

DEPUTY PRESIDENT

[1] Form F42 – Application for an entry permit CFMEU dated 9 August 2024.

[2] RE2021/1217.

[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,

41 [15].

[8] Form F42, Declaration by member of Committee of Management dated 15 October 2024, [3.1(a)]; Form F42, Declaration by proposed permit holder dated 15 October 2024, [3.1(a)].

[9] Form F42, Declaration by member of Committee of Management dated 15 October 2024, [3.1(b)]; Form F42, Declaration by proposed permit holder dated 15 October 2024, [3.1(b)].

[10] Form F42, Declaration by member of Committee of Management dated 15 October 2024, [3.1(e)]; Form F42, Declaration by proposed permit holder dated 15 October 2024, [3.1(e)].

[11] Form F42, Declaration by member of Committee of Management dated 15 October 2024, [3.1(f)]; Form F42, Declaration by proposed permit holder dated 15 October 2024, [3.1(f)]. 

[12] Form F42, Declaration by member of Committee of Management dated 15 October 2024 [3.1(g)]; Form F42, Declaration by proposed permit holder dated 15 October 2024, [3.1(g)]. 

[13] [2022] FWC 41, [54]–[55].

[14] Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch [2022] FWC 41, [54].

[15] Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch [2022] FWC 41, [54].

[16] Form F42, Declaration by member of Committee of Management dated 15 October 2024, [3.1(c)]; Form F42, Declaration by proposed permit holder dated 15 October 2024, [3.1(c)]. 

[17] Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch [2022] FWC 41, [54].

[18] Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch [2022] FWC 41, [54].

[19] Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch [2022] FWC 41, [56] – [63].

[20] Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch [2022] FWC 41, [63].

[21] See for example: Application by Construction, Forestry, Mining and Energy Union – Construction and General Division, SA Divisional Branch [2016] FWC 161, [34]; Construction, Forestry, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch [2018] FWC 379, [33]; Application by the Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit to be issued to Mr Michael Ravbar [2018] FWC 2377, [22].

[22] [2016] FWC 161.

Printed by authority of the Commonwealth Government Printer

<PR780468>