Construction, Forestry, Maritime, Mining and Energy Union

[2020] FWC 5604

[2020] FWC 5604

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union
(RE2020/675)

DEPUTY PRESIDENT COLMAN MELBOURNE, 21 OCTOBER 2020

Application for a right of entry permit for Mr Anthony Stott

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application under s 512 of the Fair Work Act 2009 (Act) for the issuance of a right of entry permit to its official Mr Anthony Stott.

[2] The Australian Building and Construction Commissioner filed a notification of an intention to intervene or lodge submissions in respect of this application pursuant to s 110 of the Building and Construction Industry (Improving Productivity)Act 2016 (Cth) or otherwise, but subsequently advised that he did not wish to be heard.

[3] The CFMMEU filed written submissions in support of its application and requested that I determine the matter on the papers. I consider it appropriate to do so.

[4] 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 to issue an entry permit must be exercised having regard to the ‘permit qualification matters’ set out in s 513(1) of the Act:

“513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law;

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.”

[5] The declarations filed by the CFMMEU in support of the application for the grant of an entry permit to Mr Stott attested to the following matters:

•  Mr Stott has never been convicted of an offence against an industrial law (s 513(1)(b));

•  Mr Stott has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, fraud, dishonesty, intentional use of violence against another person or intentional damage or destruction of property (s 513(1)(c));

•  Mr Stott 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)); and

•  Mr Stott has not had a State or Territory entry permit cancelled, suspended or made subject to conditions, nor has he been disqualified under State or Territory laws from exercising or applying for an entry permit (s 513(1)(f)).

[6] I accept the information in the declarations concerning these matters. Each of these permit qualification matters weighs in favour of a conclusion that Mr Stott is a fit and proper person to hold an entry permit, and that a permit should be issued to him.

[7] The CFMMEU submitted a certificate of completion which it issued to Mr Stott, certifying that on 27 July 2020 Mr Stott completed the course ‘Federal Right of Entry under the Fair Work Act 2009’, which appears to me to be appropriate training for the purpose of s 513(1)(a).

[8] The declarations make disclosures in relation to the permit qualification matter referred to in s 513(1)(d). They state that on 24 April 2018, in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Case) (No 3), 1 Collier J made a declaration that Mr Stott had contravened s 355 of the Act by organising a stoppage on 23 September 2016 at the Newstead Central Apartments Project site in Queensland, with the intent to coerce a person to engage a contractor covered by an enterprise agreement that also covered the CFMMEU. Her Honour made a further declaration that Mr Stott had contravened s 346 of the Act by having organised the stoppage because the person had engaged in an industrial activity (the activity being that the person had not complied with a request from the union to consult with it regarding the engagement of sub-contractors). The declarations were made by consent, as Mr Stott had admitted to the contraventions. The Court imposed on Mr Stott a single penalty for both contraventions in the amount of $5,000, which is in the mid-range of the maximum penalty of $10,800.

[9] The union submitted that the conduct to which Mr Stott admitted occurred on a single day and involved his organising a single meeting of two hours in length. It said that the conduct did not involve the exercise of right of entry and had occurred some four years ago, that there were no aggravating circumstances, and that there had been no allegations or findings of contraventions against Mr Stott since the Court’s decision. The union submitted that Mr Stott has held a permit for 8 years and that his contravening conduct described in The Nine Brisbane Sites Case was an isolated episode. It said that this was recognised by the Commission in considering Mr Stott’s last application for a permit in 2017, when it observed (albeit at a time when no penalty had yet been imposed) that Mr Stott’s admission of contraventions showed a level of acknowledgement of wrongdoing, and that in the context of Mr Stott having at that point held a permit for 5 years, the contraventions were isolated. 2

[10] The admitted contraventions are matters that I should take into account in determining whether Mr Stott is a fit and proper person to hold a permit. However, the contraventions were isolated when they were considered by the Commission in 2017 and they remain so now. They occurred four years ago. There has been no recurrence of the conduct. I take these matters into account in connection with my consideration of the permit qualification matters in ss 513(1)(d) and 513(1)(g).

Conclusion

[11] In the present case, the permit qualification matters in ss 513(1)(a), (b), (c), (e) and (f) weigh in favour of granting the application. As to the permit qualification matter in s 513(1)(d), the fact that Mr Stott was ordered to pay a penalty under the Act weighs against the granting of a permit, but the significance of this is moderated by the matters I have referred to above. In all the circumstances, I am satisfied that Mr Stott is a fit and proper person to hold an entry permit.

[12] I therefore exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Stott with an entry permit. The application is granted and an entry permit will be issued to Mr Stott separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR723720>

 1 [2018] FCA 564

 2   [2017] FWC 4836 at [18] – [19], per Gostencnik DP