Construction, Forestry, Maritime, Mining and Energy Union

[2019] FWC 6091

[2019] FWC 6091

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union

(RE2019/595)

DEPUTY PRESIDENT COLMAN MELBOURNE, 4 OCTOBER 2019

Application for a right of entry permit for Mr Derek Stapleton

1. On 24 June 2019, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application 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 official, Mr Derek Stapleton, who is employed as an organiser in the South Australian Branch of the CFMMEU.

1. The Australian Building and Construction Commission (ABCC) was informed of the application in respect of an entry permit for Mr Stapleton. The Commission did not receive any notification from the ABCC of an intention by it 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.

1. On 9 July 2019, a staff member of the Registered Organisations Section of the Commission wrote to the CFMMEU noting that the training undertaken by Mr Stapleton for the purpose of s 513(1)(a) of the Act, referred to in the application, occurred on 19 May 2016. The union was requested to make a submission as to why this training should be considered ‘appropriate’ for the purpose of s 513(1)(a). The union’s application was then referred to my chambers.

1. On 3 September 2019, I conducted a telephone mention at which I heard briefly from the union concerning the question of training. Shortly afterwards the union advised that Mr Stapleton intended to undertake further training and requested that the application be held open until this had occurred. On 3 October 2019, the union provided to my chambers evidence of Mr Stapleton’s completion of further training.

1. I have decided to grant the application for the issue of a permit for the following reasons.

1. 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 is not conferred in unqualified terms. The discretion must be exercised having regard to the ‘permit qualification matters’ set out in s 513(1) of the Act.  

1. Section 513 of the Act sets out the permit qualification matters:

“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.”

1. The declarations filed by the CFMMEU in support of the application for the grant of an entry permit to Mr Stapleton attested to the following matters:

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

(b)Mr Stapleton 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));

(c)Mr Stapleton has never been ordered to pay a penalty under the Act or any other industrial law (s 513(1)(d));

(d)Mr Stapleton 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

(e)Mr Stapleton 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)).

1. I accept the information in the declarations concerning these matters. Each of these permit qualification matters weighs in favour of a conclusion that Mr Stapleton is a fit and proper person to hold an entry permit.

1. The declarations also stated that Mr Stapleton received appropriate training about the rights and responsibilities of a permit holder within the meaning of s 513(1)(a). Submitted with the application for a permit was a certificate of completion issued by the ACTU Organising Centre, certifying that Mr Stapleton had completed the course ‘Federal Right of Entry’, dated 19 May 2016. Mr Stapleton’s declaration explained that the course was conducted on line, and completed on 19 May 2016.

1. The question asked of the union by the Registered Organisations Section was essentially directed at the currency of the training and whether it could be considered ‘appropriate’ for the purpose of s 513(1)(a), given that it had occurred three years ago. There is no rule about how recent relevant training must be, in order to be considered ‘appropriate’. I note that there have not been legislative changes to the right of entry provisions in the Act since the training undertaken by Mr Stapleton in May 2016 however there have been important developments in the relevant case law since that time.

1. The concern raised by the Registered Organisations Section about the currency of the training in May 2016 is now moot because Mr Stapleton has undergone further training. Mr Stapleton submitted to the Commission a statement of completion of the training course ‘Federal Right of Entry’ conducted at the ACTU Organising Centre on 2 October 2019. As other members of the Commission have done, I take the view that the training provided through the ACTU Organising Centre about federal right of entry is relevant and appropriate for the purpose of s 513(1)(a).

1. There are no other matters that I consider to be relevant under s 513(1)(g).

1. In the present case, all of the permit qualification matters in s 513(1) weigh in favour of granting the application.

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

DEPUTY PRESIDENT

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