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

[2025] FWC 1586

[2025] FWC 1586

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 512—Right of entry

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

(RE2025/391)

DEPUTY PRESIDENT O’KEEFFE PERTH, 9 JUNE 2025

Section 512 - Application for a right of entry permit for Ciaran Patrick Barrett – whether fit and proper person to hold an entry permit under the Act – effect of charge for intentional damage - satisfied Ciaran Patrick Barrett is a fit and proper person to hold a permit – permit issued.

1. 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 Ciaran Patrick Barrett. Ciaran Patrick Barrett 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.

1. 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.

1. 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.

1. 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:

• Ciaran Patrick Barrett 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 17 April 2025 (s 513(1)(a) of the Act));

• Ciaran Patrick Barrett has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);

• Ciaran Patrick Barrett has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in section 513(1)(c) of the Act;

• Neither Ciaran Patrick Barrett 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);

• Ciaran Patrick Barrett 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);

• Ciaran Patrick Barrett 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

• Ciaran Patrick Barrett 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

• On 16 September 2024 Ciaran Patrick Barrett was charged with intentionally damaging property pursuant to s 197(1) of the Crimes Act 1958 (Vic). The charge relates to incidents in June 2023 and March 2024 where Mr Barrett is alleged to have damaged washing machines by tracing existing scratches with a ball point pen. Mr Barrett attended an initial hearing of this matter on 28 May 2025. On that date the matter was held over until 7 August 2025, as the prosecution sought further time to review evidence and consider their position.

1. I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. These first seven matters weigh in favour of a conclusion that Michael Sinclair Chaplin is a fit and proper person to hold a right of entry permit. This then leaves the issue of the charge of criminal damage. In the first instance, I note that Mr Barrett is entitled to the presumption of innocence. The mere fact that he has been charged does not make him guilty. In addition, as found in the decision of the Full Bench in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FWCFB 5947 at [25]:

“A matter is only required to be taken into account under s 513(1)(g) if the Commission “considers” it to be relevant - that is, the requirement operates upon the opinion as to relevance formed by the Commission. Because the formation of an opinion as to the relevance of a matter to the broad judgment required by the “fit and proper person” criterion will necessarily involve a degree of subjectivity, it is in the nature of a discretionary decision.”

1. In this instance, I note that while the Mr Barrett has not been convicted, the nature of the charge against him is such that it is one of the types of offences called out specifically in section 513(1)(c) of the Act. On that basis and for an abundance of caution I have considered the matter from the perspective of whether a condition ought to be imposed on the permit whereby it is in some way subject to the outcome of the proceedings. For the reasons that follow, I do not find that the charge warrants such a condition or weighs against a conclusion that Mr Barrett is a fit and proper person. I find that the nature of the alleged wrongdoing is at the minor end of the scale. As such, even if Mr Barrett were convicted, the tracing in pen of cracks already present on a washing machine does not in my view evince an intention to destroy the property or render it unusable. It is more akin to a minor act of graffiti. On that basis I would not regard a guilty finding – if indeed one is even made - as being something that prevented the issue of a permit.

1. Accordingly, I am satisfied that Ciaran Patrick Barrett 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 Ciaran Patrick Barrett is granted. As Mr Barrett 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:

Ciaran Patrick Barrett 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.

1. A permit will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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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].