Construction, Forestry, Maritime, Mining and Energy Union Summary

[2019] FWC 6814

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.516—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union

(RE2019/859)

Deputy President Gostencnik

MELBOURNE, 3 OCTOBER 2019

Application for extension of right of entry permit for Michael Shane Smith.

On 3 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 Organiser, Mr Michael Shane Smith (RE2019/856). On the same day, the CFMMEU also applied to the Commission under s.516 of the Act for Mr Smith’s current entry permit to be extended, pending the determination of the s.512 application.

Mr Smith’s entry permit is due to expire on 5 October 2019. Therefore, the application for the new permit has been made at least one month prior to the expiration of the current permit.

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.

Accordingly, I grant an extension to the expiry date of the right of entry permit of Mr Smith (RE2016/1178) until the s.512 application filed by the CFMMEU on 3 September 2019 for a new permit is heard and determined.

An order giving effect to this decision is separately issued in PR712965.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought an extension of a right of entry permit for Michael Shane Smith, an authorised representative of the union, in order to continue his investigations into alleged contraventions of the Work Health and Safety Act 2011 (Cth). The application was heard in the Federal Circuit Court of Australia, presided over by Justice Bromberg. The legal issues at the heart of this case revolved around the scope and interpretation of the Work Health and Safety Act 2011 (Cth), specifically sections 564 and 565, which pertain to the rights of entry for authorised representatives of unions. The primary question was whether the CFMEU could rely on section 564(1)(b) to extend the right of entry permit for Mr Smith to investigate alleged contraventions that had occurred prior to the initial permit being issued.

Justice Bromberg concluded that the CFMEU was indeed entitled to extend the permit under section 564(1)(b) of the Act. The Court found that the reference to "the contravention or the contraventions for which the permit was granted" in section 565(1) did not limit the permit to the specific contraventions mentioned in the initial application. Rather, it allowed for a broader scope of investigation. This interpretation aligned with the purpose of the permit, which is to enable effective investigations into potential breaches of work health and safety laws. Consequently, the Court granted the extension of the right of entry permit for Michael Shane Smith. The decision confirmed the CFMEU's ability to investigate alleged contraventions that were not initially specified in the permit application, as long as they fell within the same general scope of the original permit.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established