DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union
(RE2021/90)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 22 APRIL 2021

Application by CFMMEU for issue of right of entry permit for Michael Kenneth Robinson – satisfied that fit and proper person – permit issued.

[1] On 8 February 2021 the Construction, Forestry, Mining and Energy Union (CFMMEU) made an application to the Fair Work Commission (Commission) under s 512 of the Fair Work Act 2009 (Cth) (Act) for an entry permit for Mr Michael Kenneth Robinson (Application). Mr Robinson is employed by the CFMMEU as an organiser and holds an elected position within the CFMMEU.

[2] Mr Robinson has been employed by the CFMMEU since 2008 and has held a right of entry permit continuously from 2008 to 2017 and then from 2018 to present.

[3] The Australian Building and Construction Commissioner (ABCC) was notified of the application by the CFMMEU for a new right of entry permit for Mr Robinson but elected not to intervene in these proceedings.

[4] I have determined this application on the basis of the CFMMEU’s written submissions dated 20 April 2021, together with the information in the Application and the declarations accompanying it.

Statutory Framework

[5] Part 3-4 of the Act provides a framework within which officials of organisations may gain access to premises of employers and occupiers to represent members of organisations in the workplace, to hold discussions with members and potential members, and to investigate suspected contraventions of the Act, fair work instruments and State or Territory occupational health and safety laws.

[6] The object of Part 3–4 of the Act is to establish a framework that balances the right of organisations to represent their members, hold discussions with potential members and investigate suspected contraventions of relevant laws and instruments, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. 1

[7] Part 3-4 of the Act confers upon a permit holder a statutory right to enter premises owned or controlled by the occupier or employer that diminishes the common law rights of the occupier or employer. 2 The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.3 Accordingly, the right of entry scheme established by Part 3-4 of the Act should not be construed as giving any greater right than which is necessary to achieve the express or implied statutory purpose of the scheme.4

[8] Section 512 of the Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a “fit and proper person” to hold the entry permit. The Commission’s discretion whether or not to issue an entry permit is not conferred in general, unqualified terms. The discretion must be…

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: [2021] FWC 2218
Decision Date: 22 APRIL 2021

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for the issuance of a right of entry permit for Michael Kenneth Robinson. The permit was sought to enable Robinson to enter and inspect various worksites under the Fair Work Act. The Commission was tasked with determining whether Robinson was a fit and proper person to hold such a permit. The dispute centred on Robinson’s past conduct and whether it rendered him unsuitable for the role.

The central legal issues were whether Michael Kenneth Robinson's past conduct disqualifies him from being deemed a fit and proper person and if there were sufficient grounds to issue the permit based on his qualifications and experience. The Commission considered the statutory criteria for determining fitness and propriety, weighing Robinson's professional experience against any past actions that could cast doubt on his suitability. The CFMMEU argued that Robinson's extensive experience and adherence to legal standards outweighed any negative past conduct.

After examining the evidence, the Commission concluded that Michael Kenneth Robinson met the criteria for being a fit and proper person. The Commission acknowledged Robinson’s significant experience and his commitment to upholding the law and industry standards. Despite some past conduct, the Commission found that it did not sufficiently undermine Robinson’s overall suitability. Consequently, the application for the right of entry permit was granted. The Commission's decision was based on a detailed analysis of Robinson's professional qualifications and a balanced assessment of his past conduct in the context of his overall fitness for the role.

Orders