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

[2025] FWC 331

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

(RE2025/19)

DEPUTY PRESIDENT O’KEEFFE

PERTH, 5 FEBRUARY 2025

Application for a right of entry permit for Michael Sinclair Chaplin – whether fit and proper person to hold an entry permit under the Act – satisfied Michael Sinclair Chaplin is a fit and proper person to hold a permit – permit issued.

The Construction, Forestry and Maritime Employees Union (CFMEU) has applied to the Commission under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to Michael Sinclair Chaplin. Michael Sinclair Chaplin is employed by the CFMEU as an Organiser. Section 512 permits the Commission to issue a right of entry permit if satisfied that the person who is the subject of the application is a fit and proper person to hold a permit.

The principles for determining right of entry permit applications are well settled. The fitness and propriety of a proposed permit holder 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 of the Act, 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 to exercise the powers, functions and responsibilities attached to holding a permit.[1] The Commission must be satisfied, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.

In support of its application the CFMEU filed declarations by Mr Josh Liley (CFMEU National Legal Officer) and Mr Michael Buchan, (Committee of Management Officer) (the Declarations). According to the Declarations:

· Michael Sinclair Chaplin has received appropriate 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 conducted on 27 November 2024 (s.513(1)(a) of the Act));

· Michael Sinclair Chaplin has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);

· Michael Sinclair Chaplin 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;

· Neither Michael Sinclair Chaplin 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);

· Michael Sinclair Chaplin has not had any entry permit issued 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);

· Michael Sinclair Chaplin has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr McIntyre 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); and

· Michael Sinclair Chaplin 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): and

· There are no other matters relevant to the application indicating that he is not a fit and proper person to hold a permit.

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 Michael Sinclair Chaplin is a fit and proper person to hold a right of entry permit.

Accordingly, I am satisfied that Michael Sinclair Chaplin is a fit and proper person to hold a right of entry permit taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act. The application by the CFMEU for an entry permit to be issued to Michael Sinclair Chaplin is granted. As Mr Chaplin has not completed training with respect to entry into premises for the purposes of investigating suspected contraventions with respect to TCF Award workers, I note the following condition with respect to his permit:

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

A permit will be issued separately.

DEPUTY PRESIDENT

[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].

Printed by authority of the Commonwealth Government Printer

The Construction, Forestry and Maritime Employees Union (CFMEU) applied to the Fair Work Commission for a right of entry permit for Michael Sinclair Chaplin. The application was made under section 512 of the Fair Work Act 2009, which allows the Commission to issue a permit if satisfied that the applicant is a fit and proper person to hold one. The CFMEU argued that Mr Chaplin, an Organiser employed by them, meets the necessary criteria and should be granted the permit. The case was heard by Deputy President O’Keeffe in Perth on February 5, 2025.

The legal issues before the Commission included whether Mr Chaplin had completed the necessary training to be deemed a fit and proper person to hold a right of entry permit, whether he had any prior convictions that would disqualify him, and if there were any other relevant factors indicating he was unfit to hold the permit. The Commission examined the qualifications set out in section 513 of the Act, including whether Mr Chaplin had received appropriate training, had any prior convictions, and if he had been ordered to pay penalties under the Act or any other industrial law.

The Commission found that Mr Chaplin had indeed received the required training and had no prior convictions that would disqualify him from holding a permit. The declarations provided by the CFMEU, including those from Mr Josh Liley and Mr Michael Buchan, supported Mr Chaplin's fitness and propriety. Although Mr Chaplin had not yet completed training related to entry into premises for investigating suspected contraventions concerning TCF Award workers, the Commission decided to grant the permit with a condition that he must complete this training before exercising certain rights under the Act. The Commission was satisfied that Mr Chaplin was a fit and proper person to hold a right of entry permit.

In light of the findings, the Fair Work Commission granted the application by the CFMEU for a right of entry permit to be issued to Michael Sinclair Chaplin. The permit will be issued separately, with a condition that Mr Chaplin must complete the relevant training and submit a certificate of completion to the Commission. This decision ensures that Mr Chaplin can exercise his rights under the Act while also maintaining the necessary standards of fitness and propriety required for a permit holder.

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

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established