Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Australian Capital Territory Divisional Branch

[2020] FWC 4486

[2020] FWC 4486

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit

Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Australian Capital Territory Divisional Branch
(RE2020/602)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 25 AUGUST 2020

Application by CFMMEU for issue of right of entry permit for Anthony Paul Vitler – satisfied that fit and proper person – permit issued Anthony Paul Vitler.

[1] The Construction, Forestry, Maritime, Mining & Energy Union, Construction and General Division, ACT Divisional Branch (CFMMEU) has made an application to the Fair Work Commission (Commission) under s 512 of the Fair Work Act 2009 (Cth) (Act) for an entry permit for Mr Anthony Paul Vitler, who is employed by the CFMMEU in the position of Compliance Organiser.

[2] The previous right of entry permit held by Mr Vitler expired on 24 September 2015. Mr Vitler's previous period of employment with the CFMMEU ended on 20 January 2016. Mr Vitler's current period of employment with the CFMMEU commenced on 3 June 2020. In the intervening period, Mr Vitler was employed by an industry training body in the ACT.

[3] The Australian Building and Construction Commissioner (ABCC) notified the Commission that it did not wish to intervene in these proceedings or make any submissions against the CFMMEU’s application for a right of entry permit for Mr Vitler.

[4] The application for a new right of entry permit for Mr Vitler was determined on the ‘papers’.

Statutory Framework

[5] Part 3–4 of the Act provides a framework within which officials of organisations may gain access to premises of employers and occupiers to represent members of organisations in the workplace, to hold discussions with members and potential members, and to investigate suspected contraventions of the Act, fair work instruments and State or Territory occupational health and safety laws.

[6] The object of Part 3–4 of the Act is to establish a framework that balances the right of organisations to represent their members, hold discussions with potential members and investigate suspected contraventions of relevant laws and instruments, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. 1

[7] Part 3–4 of the Act confers upon a permit holder a statutory right to enter premises owned or controlled by the occupier or employer that diminishes the common law rights of the occupier or employer. 2 The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.3 Accordingly, the right of entry scheme established by Part 3–4 of the Act should not be construed as giving any greater right than which is necessary to achieve the express or implied statutory purpose of the scheme.4

[8] 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 whether or not to issue an entry permit is not conferred in general, unqualified terms. The discretion must be exercised having regard to the “permit qualification matters” set out in s 513(1) of the Act and in a way that is not arbitrary, capricious or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose. 5

[9] Section 513 of the Act sets out the permit qualification matters as follows:

“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.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.”

[10] Section 515 of the Act allows the Commission to impose conditions on entry permits. It relevantly provides as follows:

“515 Conditions on entry permit

(1) The FWC may impose conditions on an entry permit when it is issued.

(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.

(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).”

[11] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 6 Vice President Hatcher set out the following principles relevant to the interpretation and application of sections 512 and 513(1) of the Act as follows:

“[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia [2014] FWCFB 1973, CFMMEU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397, Director of the Fair Work Building Industry Inspectorate v CFMMEU [2014] FWCFB 5947, Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland [2014] FWCFB 7154 and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2014] FWFCB 7194. The relevant principles may be summarised as follows:

•  A “fit and proper” standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.

•  The expression “fit and proper person” in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit.

•  The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se, but rather whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.

•  The question of whether an official is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights.

•  The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.

•  The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.

•  While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).

•  Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.”

[12] In Maritime Union of Australia v Fair Work Commission (MUA v FWC) 7, a Full Court of the Federal Court of Australia observed the following in relation to the phrase “a fit and proper person”:

“[17] The phrase a ‘fit and proper person’ is used in many different statutory contexts: e.g., Customs Act 1901 (Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase ‘fit and proper person’ by expressly including a reference to whether an individual is of ‘good fame, integrity and character...’: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:

‘The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.’” 8

[13] In MUA v FWC, the Full Court ultimately concluded as follows:

“[42] When deciding whether to issue an entry permit pursuant to s 512 of the Fair Work Act, those considerations relevant to the exercise of the power are not confined (for example) to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the decision-maker – at least initially. The prospect remains for judicial review founded upon (for example) alleged ‘unreasonableness’.” 9

Consideration

[14] I will now take into account all of the permit qualification matters specified in s 513(1) of the Act in relation to the application for an entry permit for Mr Vitler.

Permit qualification matters – ss 513(1)(a), (b), (d), (e) and (f)

[15] According to the declarations filed by the CFMMEU in support of the application for the grant of an entry permit to Mr Vitler:

(a) Mr Vitler has received appropriate training about the rights and responsibilities of a permit holder (s 513(1)(a) of the Act). Mr Vitler completed an approved right of entry training course on 18 June 2020;

(b) Mr Vitler has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);

(c) Mr Vitler 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, or fraud or dishonesty, or intentional use of violence against another person or intentional damage or destruction of property (s 513(1)(c) of the Act);

(d) In 2014 the Federal Court found that Mr Vitler contravened s 500 of the Act on 7 April 2014 by acting in an improper manner while exercising, or seeking to exercise, rights as a permit holder in accordance with s 484 of the Act. Mr Vitler was ordered to pay a pecuniary penalty of $1,100 and the CFMMEU was ordered to pay a pecuniary penalty of $30,000 in respect of the conduct of Mr Vitler and other officers and employees of the CFMMEU. This matter weighs against a finding that Mr Vitler is a fit and proper person to hold an entry permit (s 513(1)(d) of the Act);

(e) On 1 May 2015, Justice Boulton of the Commission ordered, by consent, that the entry permit held by Mr Vitler be suspended for a period of three months commencing on 4 May 2015 and the issue of a further entry permit to Mr Vitler be banned for a period of three months commencing on 4 May 2015. These orders were made as a consequence of Mr Vitler’s conduct in contravening s 500 of the Act on 7 April 2014. This matter weighs against a finding that Mr Vitler is a fit and proper person to hold an entry permit (s 513(1)(e) of the Act);

(f) Mr Vitler has not had an entry permit under State or Territory industrial or occupational health and safety laws which has been cancelled, suspended or been made subject to conditions, nor has he been disqualified under such laws from exercising or applying for an entry permit (s 513(1)(f) of the Act); and

(g) Apart from the matters I have considered above, there are no other matters that I consider relevant to the present application (s 513(1)(g) of the Act).

Conclusion

[16] I am satisfied that Mr Vitler is a fit and proper person to hold a right of entry permit. I have reached this overall conclusion after taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act. I am satisfied that Mr Vitler’s contravention of s 500 of the Act in 2014 is outweighed by the permit qualification matters which tell in favour of a finding that Mr Vitler is a fit and proper person to hold an entry permit, particularly in circumstances where the contravening conduct occurred in 2014 and there is no suggestion on the material before the Commission that Mr Vitler has contravened the Act at any other time.

[17] I have considered whether any conditions should be imposed on any entry permit issued to Mr Vitler conjointly with my consideration of whether he is a fit and proper person to hold an entry permit. 10 My conclusion on that score is that no conditions should be imposed, because I have reached the necessary state of satisfaction that Mr Vitler is a fit and proper person to hold an entry permit without any conditions being imposed on it.

[18] For the reasons given, I exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Vitler with an entry permit.

DEPUTY PRESIDENT

Representation:

Ms R Read, Senior Legal Officer, forthe CFMMEU.

Printed by authority of the Commonwealth Government Printer

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 1 Section 480 of the Act

 2   Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85; (2012) 203 FCR 389 at 405 [57] per Flick J

 3   Ibid at 405 [56] per Flick J

 4   Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481 – 1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403; and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]

 5   Construction, Forestry, Mining and Energy Union v Fair Work Commission[2017] FWCFB 4141

 6   [2015] FWC 1522

 7 [2015] FCAFC 56

 8   Ibid at [17]

 9   Ibid at [42]

 10   MUA v FWC at [32] & [43]