Construction, Forestry, Maritime, Mining and Energy Union

[2020] FWC 944

[2020] FWC 944

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.516—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union
(RE2020/66)

DEPUTY PRESIDENT COLMAN MELBOURNE, 24 FEBRUARY 2020

Application for extension of right of entry permit for Roland Cummins

[1] On 31 January 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 Roland Cummins (RE2020/65). On the same day, the CFMMEU also applied under s 516 of the Act for Mr Cummins’ current entry permit to be extended, pending the determination of the s 512 application.

[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 Cummins was made more than one month before the expiry date of Mr Cummins’ current permit, which is 13 March 2020. Further, I am satisfied that the current permit is likely to expire before I determine the application for a new permit, having regard to the following matters.

[4] First, the application for a new permit will be contested, as the Australian Building and Construction Commissioner (ABCC) opposes the application. Secondly, the declarations filed by the CFMMEU in support of its s 512 application disclose that Mr Cummins recently admitted to contraventions of s 500 of the Act in proceedings brought against him in the Federal Court by the ABCC, that a penalty hearing occurred on 13 December 2019, and that the Court has reserved its decision.

[5] At a telephone mention on 20 February 2020, the CFMMEU and the ABCC agreed that the decision of the Court is likely to have a bearing on argument presented at the hearing of the application under s 512. It was also noted that if the Court imposes a penalty on Mr Cummins, the Commission will be required by s 510 to consider whether to revoke or suspend the current permit. For these reasons, the parties agreed that it would be appropriate that I adjourn the s 512 application and relist it for mention once the decision of the Court is handed down. I agreed that this was a sensible approach to adopt at this stage and adjourned the s 512 application.

[6] As to the s 516 application, the CFMMEU contended that I should extend Mr Cummins’ current permit under s 516 until the s 512 application is determined. The ABCC did not object to this course. However, I raised with the parties my concern as to whether such an extension would be for a ‘specified period’, as contemplated by s 516(2). The CFMMEU pointed out that various decisions of the Commission have previously adopted the approach of extending a permit under s 516 pending determination of an application under s 512. Nevertheless, I am not convinced that such an extension would be for a specified period. To ‘specify’, in the present context, means to identify something specifically or definitely. Extending a permit until a particular event occurs delimits the extension period to a certain degree, but it does not definitely identify the period. The Parliament could have simply made provision for the Commission to extend the permit pending the determination of the application for a new permit. Instead it has allowed the Commission to extend the permit only for a ‘specified period’.

[7] I doubt that there is power to extend a permit in the manner for which the union contends. If such power exists, I would not be inclined to exercise it in the present case. The reason for doing so would essentially be to await the handing down of the penalty decision, regardless of when this might occur. However, if the decision is not handed down in the coming months, it may be appropriate to revisit the question of whether the s 512 application should remain in abeyance or simply be determined, and also the question of what period is ‘necessary’ for the Commission to determine the s 512 application (see s 516(3)).

[8] I consider it appropriate to extend the three-year period of Mr Cummins’ 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. Should the CFMMEU seek a further period of extension it may make application to the Commission under s 603 of the Act to vary this decision.

[9] An order giving effect to this decision is separately issued in PR716932.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR716931>