Construction, Forestry and Maritime Employees Union-New South Wales Branch

[2024] FWC 2218

[2024] FWC 2218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512 - Application for a right of entry permit

Construction, Forestry and Maritime Employees Union-New South Wales Branch

(RE2024/829)

DEPUTY PRESIDENT BEAUMONT PERTH, 20 SEPTEMBER 2024

Application for a right of entry permit for Mr Joseph Uati

1. 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, Joseph Uati (Mr Uati). Mr Uati is an Organiser in the CFMEU – Construction & General Division, New South Wales Branch.[1]

1. Mr Uati was issued an entry permit on 15 September 2021.[2]  Whilst that entry permit was due to expire on 15 September 2024, on 20 August 2024, I issued a decision[3] granting an extension to the expiry date of the current permit until 29 September 2024.  It is therefore understood that at the time of writing Mr Uati’s right of entry permit had not expired and had therefore 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), 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.[4] 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,[5] 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,[6] which must be evaluated and accorded appropriate weight.[7]

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.[8]

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 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

1. In support of its application, the CFMEU filed declarations by Mr Uati and Darren Greenfield, Divisional Branch Secretary –CFMEU New South Wales (Declarations).

1. According to the Declarations and supporting material:

a)   Mr Uati 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 28 June 2024.[9] The course of training conducted by the CFMEU is a course approved by the Commission. In addition, Mr Uati had, as of 28 June 2024, completed TCF Right of Entry training, again, the course of training was an approved course conducted by the CFMEU.[10] The training completed by Mr Uati is relevantly appropriate (s 513(1)(a) of the Act).

b) Mr Uati has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[11]

c) Neither Mr Uati 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]

d) Mr Uati 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]

e) Mr Uati has not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes that Mr Uati 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

f) Mr Uati 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]

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 Uati 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, New South Wales Divisional Branch[16] (Uati Decision) the Deputy President outlined that Mr Uati had been convicted of offences, which included, intentional use of violence against another person in 2012.  Having outlined Mr Uati’s convictions, the Deputy President identified that the convictions were relevant to his assessment of Mr Uati’s fitness and propriety to hold a right of entry permit.[17]  At paragraphs [28] to [40] of the Uati Decision, the Deputy President provided comprehensive detail of: (a) the steps taken by Mr Uati to address his responsible use of alcohol; (b) Mr Uati’s acceptance of the responsibilities required of him by employers within the workplaces he had worked; (c) the responsibilities that arise from being the father of three daughters and the sole provider for his mother; and (d) the shame and remorse that Mr Uati had expressed concerning his past conduct. 

1. Mr Uati 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.[18]  However, in the Uati Decision the Deputy President accepted Mr Uati’s evidence and was ultimately satisfied that Mr Uati was a fit and proper person to hold a right of entry permit.[19]

1. The Declarations and supporting material filed indicate no recidivism and no further convictions.  The weight to be attributed to the matters referred to in the Declarations and the Uati Decision is diminished by reason of: (a) its 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 Uati Decision; (b) Mr Uati’s unequivocal regret and remorse for his conduct; and (c) evidence that Mr Uati has not reoffended. 

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

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

1. In the Uati Decision, the Deputy President outlined further matters that were relevant to his assessment as to whether Mr Uati was a fit and proper person and which he was obliged to taken into account.[20]  Those matters, in addition to those that have been detailed in the Uati Decision, were disclosed in the Declarations.  For the reasons detailed at paragraph [13] of this decision, I again consider, notwithstanding that the convictions included contravening a prohibition or restriction in an AVO in 2017 and 2018, that the weight to be afforded to these convictions is diminished given both the time that has passed and the conduct of Mr Uati since. 

1. There are no other matters of which I am aware that I consider relevant to the determination of whether Mr Uati 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

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 Uati is a fit and proper person to hold a right of entry permit. The matters which weigh in favour of a finding that Mr Uati is a fit and proper person to hold a right of entry permit outweigh those that weigh against such a conclusion.

1. I have considered whether any conditions should be imposed on any entry permit issued to Mr Uati conjointly with my consideration of whether he is a fit and proper person to hold an entry permit. My conclusion on that score is that no conditions should be imposed.

1. The application by the CFMEU for an entry permit to be issued to Mr Uati is granted.  A permit will be separately issued.

DEPUTY PRESIDENT

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

[2] RE2021/675.

[3] [2024] FWC 2222.

[4] 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].

[5] [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].

[6] 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.

[7] 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]).

[8] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24

[15], p 41.

[9] Form F42, Declaration by member of Committee of Management dated 9 August 2024 at (4); Form F42, Declaration by proposed permit holder dated 8 August 2024 at (a); Letter of 28 June 2024 Leah Charlson Legal/Industrial Officer CFMEU.

[10] Form F42, Declaration by member of Committee of Management dated 9 August 2024 at (4); Form F42, Declaration by proposed permit holder dated 8 August 2024 at (a); Letter of 28 June 2024 Leah Charlson Legal/Industrial Officer CFMEU.

[11] Form F42, Declaration by proposed permit holder dated 8 August 2024 (b); Declaration by member of Committee of Management dated 9 August 2024 (a).

[12] Form F42, Declaration by proposed permit holder dated 8 August 2024 (d); Declaration by member of Committee of Management dated 9 August 2024 (c).

[13] Form F42, Declaration by proposed permit holder dated 8 August 2024 (e); Declaration by member of Committee of Management dated 9 August 2024 (d).

[14] Form F42, Declaration by proposed permit holder dated 8 August 2024 (f); Declaration by member of Committee of Management dated 9 August 2024 (e).

[15] Form F42, Declaration by proposed permit holder dated 8 August 2024 (g); Declaration by member of Committee of Management dated 9 August 2024 (f).

[16] [2021] FWC 5922 [20]–[22].

[17] Ibid [22].

[18] Form F42, Declaration by proposed permit holder dated 28 June 2024 (c); Declaration by member of Committee of Management dated 2 August 2024 (b).

[19] Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch [2021] FWC 5922 [45].

[20] Ibid [23]–[43].

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