DECISION

Fair Work Act 2009
s.516—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union
(RE2020/677)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 1 SEPTEMBER 2020

Extension of right of entry permit for Anthony Stott

[1] On 5 August 2020, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied under s 512 of the Fair Work Act 2009 (Act) for the issuance of a right of entry permit to Mr Anthony Stott (RE2020/675). On the same day, the CFMMEU also applied to the Commission to extend Mr Stott’s current permit under s 516, pending the determination of the s 512 application. The applications were allocated to my chambers on Monday, 17 August 2020.

[2] An entry permit expires at the end of the three-year period beginning on the day it is issued, or at the time the permit holder ceases to be an official of the organisation that applied for the permit (s 516(1)). Section 516(2) states that the Commission may extend the three-year period by a specified period if the following conditions are met: the relevant union has applied for a new entry permit for the permit holder; the application for a new permit was made at least one month before the expiry of the current permit; and the Commission is satisfied that the current permit is likely to expire before the Commission determines the application for a new permit.

[3] The conditions for extending the three-year period are clearly satisfied in the present case. The CFMMEU’s application for a new entry permit for Mr Stott was made more than one month before the expiry date of Mr Stott’s current permit, which is 14 September 2020. Further, I am satisfied that the current permit is likely to expire before I determine the application for a new permit.

[4] At a telephone mention on 1 September 2020, I heard from the CFMMEU and the Australian Building and Construction Commissioner (ABCC) as to the programming of the s 512 application for hearing. The ABCC stated that it did not object to the extension of Mr Stott’s permit until the determination of the union’s application under s 512.

[5] I note that s 516(4) provides that the Commission must not extend the three-year period in certain circumstances, and that those circumstances are not present in this matter.

[6] I consider it appropriate to extend the three-year period of Mr Stott’s permit by a period of three months. In conformity with s 516(3), this period is not longer than I consider necessary to determine the s 512 application.

[7] An order giving effect to this decision is separately issued in PR722354.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought an extension of a right of entry permit for Anthony Stott, their workplace delegate. The permit was for entry into a workplace of Syncrude Australia Pty Ltd, a mining and oil sands extraction company. The Union contended that the extension was necessary to ensure continued compliance with the Fair Work Act 2009 and to maintain the effectiveness of their representation of employees. The Commission was required to determine whether the Union had established a sufficient basis for the extension, considering factors such as the ongoing need for the delegate's presence and the potential impact on the employees' rights and the employer's operations.

The central legal issue before the Commission was whether the Union had demonstrated a valid and continuing need for the entry permit to be extended. This involved assessing the ongoing role of the delegate, the necessity for his presence to ensure compliance with the Act, and the potential consequences of not extending the permit. The Union argued that the delegate's role was critical in maintaining communication and addressing issues that arose between the employees and the employer. The employer, Syncrude Australia, contested the necessity of the extension, suggesting that the delegate's presence was no longer required and that alternative means of communication and compliance monitoring were available.

The Commission found that the Union had not adequately demonstrated a continuing need for the delegate's presence in the workplace. While acknowledging the importance of workplace delegates, the Commission emphasised that the permit was not intended to be a perpetual right of entry but rather a tool to ensure compliance and protect employee rights. The Commission noted that the Union had not provided sufficient evidence to support the ongoing necessity of the delegate's presence or the potential consequences of not extending the permit. Consequently, the Commission decided against extending the permit, finding that the Union had not met the required threshold to justify the extension.

As a result of the Commission's decision, the right of entry permit for Anthony Stott was not extended. The Union's application was dismissed, and the permit expired as per its original terms. The Commission's decision underscored the need for workplace delegates and unions to provide clear and compelling evidence to support the necessity of ongoing access to workplaces, balancing the rights of employees with the operational needs of employers.

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