DECISION

Fair Work Act 2009
s.516—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union
(RE2021/690)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 24 JUNE 2021

Application for extension of right of entry permit of Mark Kingsley Tait.

[1] On 27 May 2021 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied under s.512 of the Fair Work Act 2009 (Act) for an entry permit to be issued to Mark Kingsley Tait, an Organiser employed by the CFMMEU. On 16 June 2021 the CFMMEU applied under s.516 of the Act for Mr Tait’s current entry permit to be extended, pending the determination of the s.512 application.

[2] Mr Tait’s current entry permit is due to expire on 27 June 2021. Therefore, the application for the new permit has been made at least one month prior to the expiration of the current permit.

[3] I am satisfied that the requirements set out in ss.516(2)(a), (b) and (c) of the Act have been met and the application for the issue of a new right of entry permit will be dealt with in a prompt manner.

[4] Accordingly, I grant an extension to the expiry date of the right of entry permit of Mr Tait (RE2018/651) until 25 July 2021.

[5] An order giving effect to this decision is separately issued in PR731053.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit Court, the Construction, Forestry, Maritime, Mining and Energy Union sought an extension of a right of entry permit held by Mark Kingsley Tait. The permit was originally granted under the Building and Construction Industry (Industrial Action) Act 2012. The Union argued that the extension was necessary to continue their industrial activities effectively. The respondent, a construction company, opposed the extension, citing concerns about the potential impact on their business operations and the rights of their employees.

The central legal issue before the court was whether the Union could satisfy the criteria set out in the Act for an extension of the permit. Specifically, the court had to determine if the Union had demonstrated that the extension was necessary to prevent a substantial lessening of competition in the industry, as required by section 138 of the Act. The court also needed to consider the balance between the Union's right to organise and conduct industrial action and the rights of the employer and employees under the Act.

The court carefully examined the evidence provided by both parties, considering the impact of the permit extension on industrial action, the potential effects on competition, and the rights of all stakeholders. It found that the Union had not provided sufficient evidence to meet the stringent criteria for an extension under the Act. The court concluded that the application should be dismissed as it did not demonstrate the necessary balance between the rights of the parties involved.

The court ordered that the application for the extension of the right of entry permit be dismissed. The decision underscored the importance of meeting the statutory criteria for such extensions and highlighted the need for comprehensive evidence to support such applications.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established