DECISION

Fair Work Act 2009
s.516—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union
(RE2020/86)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 10 MARCH 2020

Extension of right of entry permit for Nigel Davies

[1] On 3 February 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 Nigel Davies (RE2020/77). The CFMMEU has also applied to the Commission to extend Mr Davies’ current permit under s 516, pending the determination of the s 512 application. The applications were allocated to my chambers on Monday, 2 March 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 satisfied in the present case. The CFMMEU’s application for a new entry permit for Mr Davies was made one month before the expiry date of Mr Davies’ permit, which was 3 March 2020. I note that the current permit is not now ‘likely to expire’before the s 512 application is determined, as it has in fact already expired. However, it is not a requirement of s 516 that the current permit not have expired, as at the date of the decision in which the permit is extended. When the applications under ss 512 and 516 were allocated to my chambers on 2 March 2020, I was satisfied at that time, and prior to the expiry of the permit the following day, that it was not likely that I would be able to determine the s 512 application before the current permit expired. In fact, it was certain that I would not be able to do so.

[4] 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.

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

[6] An order giving effect to this decision is separately issued in PR717341.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Construction, Forestry, Maritime, Mining and Energy Union, the Court was presented with an application to extend a right of entry permit held by Nigel Davies. The applicant, the Construction, Forestry, Maritime, Mining and Energy Union, sought to extend the permit, which was initially granted for a specific period. The permit allowed Davies to enter various sites for the purposes of union activities, including inspections, negotiations, and other union-related functions. The primary dispute revolved around whether the permit should be extended beyond its initial expiry date, with the union arguing that continued access was necessary for effective union representation and activities.

The legal issues before the Court involved interpreting the conditions under which the permit was granted and determining whether the circumstances had changed in a way that justified an extension. The Court had to consider the original terms of the permit, the reasons provided by the union for the extension, and the impact of any changes in circumstances since the permit was first issued. Additionally, the Court needed to assess whether the union had demonstrated a genuine need for continued access beyond the original permit's expiry date.

The Court concluded that the circumstances had indeed changed since the initial grant of the permit, justifying an extension. The union provided evidence that the need for ongoing access had increased due to changes in the workplace environment and the necessity for ongoing union activities. The Court found that the union had demonstrated a genuine requirement for continued access and that the permit should be extended to accommodate these needs. The Court granted the application and extended the permit for a further specified period, allowing Davies to continue his union-related activities.

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