Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division
[2023] FWC 582
•10 MARCH 2023
| [2023] FWC 582 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division
(RE2023/17)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 10 MARCH 2023 |
Application for a right of entry permit for James John William Simpson – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Simpson is a fit and proper person to hold a permit – permit issued.
The Constructions, Forestry, Mining, Maritime and Energy Union (CFMMEU) has applied under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, James John William Simpson. Mr Simpson is employed by the CFMMEU as a National Organiser.
Relevant statutory provisions and application
The applicable principles for determining right of entry permit applications under s.512 are well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder the subject of an application for a permit is assessed taking into account the permit qualification matters set out in s.513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in some abstract sense. The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit, and to exercise the powers, functions and responsibilities attached to holding a permit.[1] The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.
The permit qualification matters contained in s.513(1) are mandatory considerations which must be taken into account, and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others,[2] that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision-making process,[3] which must be evaluated and accorded appropriate weight.[4]
The weight given to a particular matter is ultimately a matter for the Commission, however in ascribing weight to each matter care should be taken to ensure that a relevant factor of great importance is given adequate weight and that excessive weight to a relevant factor of no great importance is not ascribed.[5]
Having regard to the structure and content of s.513, in deciding whether a proposed permit holder is a fit and proper person to hold an entry permit, all the permit qualification matters identified in s.513(1) of the Act must be taken into account. The absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment, just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight.
Section 513(1)(g) of the Act requires the Commission to take into account any other matter it considers relevant. A matter will be relevant if it can rationally affect the assessment of whether the proposed permit holder is a fit and proper person to hold an entry permit. Matters that may be relevant and therefore fall to be considered under s.513(1)(g) are matters that relate to the personal characteristics of the proposed permit holder and are pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.
I turn to consider the application.
Consideration
In support of its application the CFMMEU filed declarations by Mr Simpson and Mr David Noonan, National Secretary of the CFMMEU – Construction and General Division (the Declarations).
Permit qualification matters – s.513(1)(a), (b), (c), (d), (e) and (f)
According to the Declarations:
· Mr Simpson has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 23 January 2018 and CFMMEU TCF Right of Entry training on 30 November 2022 (s.513(1)(a) of the Act));[6]
· Mr Simpson has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);[7]
· Mr Simpson has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act;[8]
· Mr Simpson 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) of the Act);[9]
· Mr Simpson has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Simpson held under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(i) of the Act);[10] and
· Mr Simpson has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(ii) of the Act).[11]
I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. These matters weigh in favour of a conclusion that Mr Simpson is a fit and proper person to hold a right of entry permit.
The Declarations disclose matters relevant to the permit qualification matter in s.513(1)(d) of the Act.[12] In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2)[13], Snaden J imposed pecuniary penalties on Mr Simpson and the CFMMEU for contraventions of s 499 and s 500 of the Fair Work Act in respect of conduct of Mr Simpson on 29 and 30 April and 9 May 2017. Snaden J’s finding of a s 500 contravention by Mr Simpson on 9 May 2017 and the penalty imposed on him (and the CFMMEU) in relation to that contravention were set aside by the Full Court of the Federal Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Monash Freeway Widening Case).[14] Instead, the Full Court imposed penalties on Mr Simpson and the CFMMEU for the s 499 and s 500 contraventions on 29 and 30 April 2017 in the amounts of $3,240 and $21,600, respectively.
These matters weigh against a conclusion that Mr Simpson is a fit and proper person to hold a right of entry permit, but do not outweigh the matters in favour, largely for the reasons canvased in In the matter of the Entry Permit of Mr James John William Simpson.[15] In that case I decided not to suspend or revoke Mr Simpson’s entry permit under s.510(1) of the Act, finding that it would be harsh and unreasonable in the circumstances. I concluded that taking action in relation to Mr Simpson’s entry permit would not be reasonable or rational because of the absence of any protective and corrective purpose and the fact that in my opinion, the necessary balancing of competing rights identified in s 480 of the Act has in my view been achieved though the corrective action undertaken by Mr Simpson, his acceptance of wrongdoing, the corrective training undertaken and his commitment to not engage. These same considerations reduce the weight that might otherwise be ascribed to the permit qualification matter disclosed.
Permit qualification matters – s.513(1)(g)
The Declarations disclose a further matter which may be relevant to the consideration of whether the permit holder is a fit and proper person to hold a permit. Mr Simpson is a respondent in an extant Federal Court proceeding in VID206/2022 (Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union and others)[16]. These contraventions are alleged and not proven, and no penalty has been imposed. In the circumstances, no weight is ascribe to this matter in determining whether Mr Simpson is a fit and proper person to hold a right of entry permit. There are no other matters relevant for the purposes of s 513(1)(g) of the Act.
Conclusion
Taking into account the permit qualification matters, I am satisfied that James John William Simpson is a fit and proper person to hold an entry permit. The application by the CFMMEU for an entry permit to be issued to Mr Simpson is granted.
A permit will be separately issued.
DEPUTY PRESIDENT
[1] Maritime Union of Australia [2014] FWCFB 1973 at [23]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, [2015] FWC 1522 at [32]
[2] [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional
Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the
Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]
[3] Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and
Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail
Association v Fair Work Commission [2014] FCAFC 118
[4] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184; (cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62]
and by Katzmann J in Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74
at [103])
[5] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15], p 41
[6] Form F42, Declaration by proposed permit holder dated 25 October 2022 at (a) and ACTU Federal Right of Entry Training Certificate of Completion dated 23 January 2018 and CFMMEU – TCF Right of Entry training completed 30 November 2022.
[7] Ibid at (b)
[8] Ibid at (c)
[9] Ibid at (e)
[10] Ibid at (f)
[11] Ibid at (g)
[12] Ibid at (d)
[13] [2021] FCA 1101
[14] [2022] FCAFC 59
[15] [2022] FWC 2074
[16] Pursuant to item 323 of Part 3 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, the name of the Applicant (Australian Building and Construction Commissioner) was changed to the Fair Work Ombudsman by order of Callaghan J on 13 December 2022
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