Construction, Forestry, Maritime, Mining and Energy Union - [2022] FWC 101

[2022] FWC 101

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union

(RE2021/1162)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 FEBRUARY 2022

Application for a right of entry permit for Roland Cummins – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Cummins is a fit and proper person to hold a conditional permit – permit with conditions to issue.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied for the issue of a right of entry permit under s 512 of the Fair Work Act 2009 (Act) to its official, Mr Roland Cummins an organiser in its employ who is based in Cairns. Pursuant to s 112 of the Building and Construction Industry (Improving Productivity) Act 2016, the Australian Building and Construction Commissioner (Commissioner) was given notice of the application and has in turn given written notice on 22 October 2021 that he intervenes in the proceeding pursuant to s 110 of that Act. The Commissioner filed written submissions and subsequently made oral submissions during the hearing of the application.

I have decided to issue an entry permit to Mr Cummins. I have also decided that the following conditions will be imposed on the entry permit when it is issued:

a. Mr Cummins must not use this entry permit to exercise entry rights (unless he is accompanied by another CFMMEU official who holds an entry permit without conditions) until he undertakes and completes training provided by an independent legal practitioner experienced in industrial relations law in relation to the rights and obligations of a permit holder under Part 3-4 of the Fair Work Act 2009 (Act) and the following decisions of the Federal Court of Australia and the Fair Work Commission (Commission) about his conduct in the following matters:

i. Australian Building and Construction Commissioner v Arturo Menon & Ors [2020] FCA 1418; and

ii. JKC Australia LNG Pty Ltd v CFMEU & Ors[2016] FWC 536

b. At all times after completing the training above, and until this permit expires, Mr Cummins must:

i. Carry a certificate of competition signed by the independent legal practitioner whenever he is exercising entry rights under the Act; and

ii. Produce the certificate whenever he is asked to produce his entry permit for inspection under ss 489 or 497 of the Act.

c. Mr Cummins must:

i. Within 7 days of completing the training above, provide the Commission with a certificate of completion signed by the independent legal practitioner; and

ii. Promptly notify the Australian Building and Construction Commissioner and the Commission if any Court makes a finding that Mr Cummins has contravened an obligation imposed by the Act or if the Commission makes any adverse findings about his conduct while exercising entry rights under the Act.

My reasons for this decision follow.

The applicable principles for determining right of entry permit applications under s 512 are well settled and not controversial. Shortly stated,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 101
Decision Date

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied for a right of entry permit for Mr Roland Cummins, an organiser in its employ. The Australian Building and Construction Commissioner intervened in the proceeding. The Deputy President, Gostencnik, decided to issue an entry permit to Mr Cummins with conditions. The Deputy President concluded that Mr Cummins was a fit and proper person to hold a conditional permit. The permit qualification matters set out in s 513(1) were considered, with appropriate weight given to each matter. Although Mr Cummins had a conviction for trespass in 2010, it was of little moment in assessing his fitness and propriety given the time that had elapsed, the isolated nature of the conduct, and the fact that the conduct did not occur in an industrial or employment-related context. The Deputy President also considered Mr Cummins' conduct in the Palmerston Police Station case, in which penalties were imposed on him for acting in an improper manner while exercising entry rights. The Deputy President found that the conduct was serious in nature and Mr Cummins was or should have been aware of his obligations as a permit holder. The Deputy President also considered the findings made by Commissioner Simpson in relation to Mr Cummins in JKC Australia, in which he engaged in inappropriate conduct while exercising entry rights. The Deputy President found that Mr Cummins' failure to adhere to the limitations imposed when exercising entry rights and the standards of proper conduct expected of permit holders when exercising those rights raised serious concerns about whether Mr Cummins properly understood the rights he may exercise as a permit holder, the limitations on the exercise of those rights, and the kinds of conduct that he must avoid in exercising those rights. The Deputy President concluded that a condition imposing an additional training requirement, taking into account the permit qualification matters, satisfied the reservations expressed. The Deputy President agreed with the Commissioner that additional training beyond that provided in the training undertaken on 20 August 2021 when completing a CFMMEU course is required. The Deputy President also considered it appropriate, given the nature of the reservations, that Mr Cummins does not exercise entry rights alone until the training is completed. The Deputy President imposed conditions on the entry permit, including that Mr Cummins must not use the entry permit to exercise entry rights until he undertakes and completes training provided by an independent legal practitioner experienced in industrial relations law in relation to the rights and obligations of a permit holder under Part 3-4 of the Fair Work Act 2009 and the following decisions of the Federal Court of Australia and the Fair Work Commission about his conduct in the following matters: Australian Building and Construction Commissioner v Arturo Menon & Ors [2020] FCA 1418; and JKC Australia LNG Pty Ltd v CFMEU & Ors[2016] FWC 536. The Deputy President also imposed conditions that Mr Cummins must carry a certificate of completion signed by the independent legal practitioner whenever he is exercising entry rights under the Act and produce the certificate whenever he is asked to produce his entry permit for inspection under ss 489 or 497 of the Act. The Deputy President also imposed conditions that Mr Cummins must provide the Commission with a certificate of completion signed by the independent legal practitioner within 7 days of completing the training and promptly notify the Australian Building and Construction Commissioner and the Commission if any Court makes a finding that Mr Cummins has contravened an obligation imposed by the Act or if the Commission makes any adverse findings about his conduct while exercising entry rights under the Act.

Orders