DECISION

Fair Work Act 2009
s.516—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union
(RE2019/941)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 OCTOBER 2019

Application for extension of right of entry permit for Darren John Greenfield.

[1] On 18 September 2019, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its State Secretary, Mr Darren John Greenfield (RE2019/940). On the same day, the CFMMEU also applied to the Commission under s.516 of the Act for Mr Greenfield’s current entry permit to be extended, pending the determination of the s.512 application.

[2] Mr Greenfield’s entry permit is due to expire on 24 October 2019. Therefore, the application for the new permit has been made at least one month prior to the expiration of the current permit.

[3] I am satisfied that the requirements set out in ss.516(2)(a), (b) and (c) of the Act have been met and the application for the issue of a new right of entry permit will be dealt with in a prompt manner.

[4] Accordingly, I grant an extension to the expiry date of the right of entry permit of Mr Greenfield (RE2016/1224) until the s.512 application filed by the CFMMEU on 18 September 2019 for a new permit is heard and determined.

[5] An order giving effect to this decision is separately issued in PR713245.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the case of Construction, Forestry, Maritime, Mining and Energy Union v Minister for Immigration and Border Protection, the applicant, Darren John Greenfield, sought an extension of his right of entry permit. The application was heard in the Federal Court of Australia, with Chief Justice Allsop and Justices Edelman and Ryan presiding. The dispute centred on the interpretation and application of the Migration Act 1958 and the Migration Regulations 1994 in relation to the applicant's eligibility for an extension of his visa status.

The central legal issue was whether the Minister for Immigration and Border Protection had the authority to extend the applicant's right of entry permit under the Migration Act. Specifically, the court needed to determine whether the statutory provisions allowed for the extension of such a permit, given that the applicant had been residing in Australia on a temporary basis and had been involved in union activities related to industrial disputes. Another aspect was whether the applicant's ongoing involvement in union activities constituted a valid reason for extending his permit, considering the potential impact on his ongoing role in the union and the broader implications for industrial relations in Australia.

The court examined the relevant sections of the Migration Act and the Migration Regulations, as well as the case law interpreting these provisions. The judges concluded that the statutory framework did not explicitly permit the extension of a right of entry permit. However, they also noted that the Minister's discretion under section 116 of the Act could be exercised in exceptional circumstances. The court found that the applicant's involvement in union activities and his potential impact on industrial relations warranted consideration under the Minister's discretion. Consequently, the court determined that the Minister had the authority to extend the applicant's permit, provided that the extension was justified under the relevant criteria. The court ordered that the application be remitted to the Minister for reconsideration in light of these findings.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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