Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch

[2021] FWC 5922

[2021] FWC 5922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch
(RE2021/675)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 15 SEPTEMBER 2021

Application by CFMMEU for issue of right of entry permit for Joseph Uati - satisfied that fit and proper person - permit issued.

[1] On 10 June 2021 the Construction, Forestry, Mining and Energy Union, New South Wales Divisional Branch (CFMMEU) 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 Joseph Uati, who is employed by the CFMMEU in the position of State Organiser.

[2] Mr Uati has not previously held a right of entry permit under the Act or any other legislation.

[3] The Australian Building and Construction Commissioner (ABCC) intervened in these proceedings and made submissions against the CFMMEU’s application for a right of entry permit for Mr Uati.

[4] On 13 September 2021 I conducted a hearing, by video conference, to determine the application for a right of entry permit for Mr Uati.

[5] The CFMMEU tendered, without objection, the following documents:

(a) declaration made by Mr Uati on 9 June 2021, statutory declaration made by Mr Uati on 2 August 2021 and supplementary statement made by Mr Uati on 23 August 2021;

(b) declaration made by Mr Darren Greenfield on 10 June 2021;

(c) statutory declaration made by Ms Rita Mallia on 2 August 2021;

(d) statutory declaration made by Mr Uati’s partner, Ms Rhiannon Anderson, on 2 August 2021;

(e) statement made by Mr Hayden Moore dated 2 August 2021;

(f) statement made by Mr Bradley Lord dated 19 August 2021;

(g) statement made by Mr Bill Karantonis dated 19 August 2021; and

(h) letter dated 28 May 2021 from the CFMMEU to Mr Uati in relation to right of entry training undertaken by him.

[6] The ABCC did not require Mr Uati or any of the other makers of declarations or statements to be made available for cross examination. The ABCC did not adduce any evidence. It filed written submissions and supplemented those submissions with oral submissions at the hearing on 13 September 2021.

[7] The evidence adduced by the CFMMEU in support of its application for an entry permit for Mr Uati is unchallenged, not inherently incredible and, in my view, there are no other circumstances which suggest it should be rejected. 1 I accept the evidence adduced by the CFMMEU in support of its application for an entry permit for Mr Uati.

Statutory Framework

[8] 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.

[9] 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. 2

[10] 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. 3 The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.4 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.5

[11] 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. 6

[12] 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.”

[13] 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).”

[14] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 7 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, CEPU 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.”

[15] In Maritime Union of Australia v Fair Work Commission (MUA v FWC) 8, 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.’” 9

[16] 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’.” 10

Consideration

[17] 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 Uati.

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

[18] According to the evidence filed by the CFMMEU in support of the application for the grant of an entry permit to Mr Uati:

(a) Mr Uati has received appropriate training about the rights and responsibilities of a permit holder (s 513(1)(a) of the Act). In particular, Mr Uati completed a structured right of entry course, delivered face-to-face, by a legal/industrial officer of the CFMMEU, using training materials approved by the Fair Work Commission on 24 October 2013. Mr Uati scored 19 out of 20 in a multiple-choice test at the conclusion of his right of entry training.

The ABCC contends that limited weight should be given to the fact that Mr Uati has received appropriate right of entry training in circumstances where r 51(1) of the Fair Work Commission Rules 2013 requires the Form F42 application to be accompanied by evidence that the person has undertaken appropriate training about the rights and responsibilities of a permit holder. I do not accept this contention. In my opinion, there is no logical basis for the significance of this statutorily mandated consideration being undermined by procedural rules about the making of a right of entry application.

The ABCC contends that a further reason why the Commission should not place too great an emphasis on s 513(1)(a) is because the Commission has not been given any real detail or insight as to Mr Uati’s level of understanding of the rights and responsibilities of a permit holder, beyond a generic recitation of those rights and responsibilities, and evidence that he answered 19 of 20 questions correctly in a multiple choice test designed to examine his knowledge. It is submitted that limited weight can be placed on the test result without evidence of the content of the questions, including the topics canvassed and their difficulty. In my view, this issue is relevant under s 513(1)(g) of the Act, but is not relevant to my assessment under s 513(1)(a) of whether Mr Uati has received appropriate training about the rights and responsibilities of a permit holder. The training which Mr Uati received involved training materials approved by the Commission. On that basis, I am satisfied that the training Mr Uati received in relation to his rights and responsibilities as a permit holder was appropriate.

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

(c) neither Mr Uati nor any other person has ever been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by Mr Uati (s 513(1)(d) of the Act);

(d) Mr Uati has not had any entry permit issued under Part 3–4 of the Act or a similar law of the Commonwealth revoked, suspended or made subject to conditions (s 513(1)(e) of the Act); and

(e) Mr Uati 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).

[19] I accept that the information set out in the previous paragraph, as disclosed in the evidence filed by the CFMMEU concerning these matters, is true and correct. The permit qualification matters set out in s 513(1)(a),(b) and (d) of the Act weigh in favour of a conclusion that Mr Uati is a fit and proper person to hold an entry permit. Given that Mr Uati has not previously held an entry permit, the permit qualification matters set out in s 513(1)(e) and (f) are neutral considerations.

Permit qualification matter – s 513(1)(c)

[20] Mr Uati has been convicted of the following offences in relation to intentional use of violence against another person. First, in 2012, Mr Uati pleaded guilty to the charges of assault occasioning actual bodily harm and affray in respect of an incident which took place at a nightclub on 1 September 2011. Mr Uati was 18 years old at the time of the offence. He had been drinking alcohol reasonably heavily during the evening. After a successful appeal against the severity of the sentence imposed by the Local Court, Mr Uati was given a 12 month suspended sentence with a bond to be of good behaviour for affray, and a five month suspended sentence with a bond to be of good behaviour for the assault occasioning actual bodily harm.

[21] Secondly, in 2016, Mr Uati was living with his partner, Ms Anderson, in her stepfather’s house in Newcastle. Ms Anderson was pregnant with their daughter but they had not yet told her stepfather. Mr Uati returned home following work and after consuming between five and ten beers. He was moderately intoxicated. That evening, Ms Anderson and Mr Uati told Ms Anderson’s stepfather that she was pregnant. He became very angry and said that he disowned Ms Anderson. Mr Uati argued with Ms Anderson’s stepfather. He said Mr Uati had to get out of the house and he called the police. Ms Anderson said that she did not want Mr Uati to leave. He stayed. When the police arrived, Ms Anderson’s stepfather made comments which offended Mr Uati, who decided to leave. On his way out, further comments were made which upset Mr Uati. On his way out of the house, Mr Uati punched and head-butted the wall and/or front door of the house. The police charged Mr Uati with destroying or damaging property, and obtained an apprehended violence order (AVO) against him in relation to Ms Anderson and her stepfather. The AVO required, amongst other things, Mr Uati not to approach or be in the company of Ms Anderson or her stepfather for at least 12 hours after drinking alcohol or taking illicit drugs. Mr Uati and Ms Anderson then moved into their first home together. Mr Uati pleaded guilty to the charge of destroying or damaging property. On 16 January 2017, Mr Uati was sentenced to six months to attend for counselling, educational development, drug or alcohol rehabilitation and was required to strictly comply with the AVO in relation to Ms Anderson’s stepfather. Mr Uati undertook counselling.

[22] These matters are relevant to my assessment of Mr Uati’s fitness and propriety to hold a right of entry permit. They weigh against a conclusion that he is a fit and proper person to hold such a permit.

Permit qualification matter – s 513(1)(g)

[23] Pursuant to s 513(1)(g) of the Act, in deciding whether Mr Uati is a fit and proper person I must take into account any other matters that I consider relevant. Any such matters must be relevant to whether Mr Uati is a fit and proper person to hold a right of entry permit.

Other police related matters

[24] On 10 April 2012, when Mr Uati was 19 years of age, he was out with a group of friends in Sydney. At the end of the night, in the early hours of 11 April 2012, Mr Uati and his friends left a pub and a couple of Mr Uati’s friends got into an argument with another group of teenagers. Some police officers were nearby. They gave both groups of teenagers move-along orders. Mr Uati and his friends left the area and headed towards the train station. They came across the same group of teenagers on their way to the train station. An argument broke out and became more heated but there was no violence. The police arrived and charged everyone in both groups with continuing intoxicating behaviour after a move on direction and behaving in an offensive manner in or near a public place or school. On 2 May 2012, Mr Uati was fined $150 for each of these offences and was ordered to pay $81 in court costs.

[25] On 4 September 2017, Mr Uati and Ms Anderson had an argument. Mr Uati had been drinking alcohol. Mr Uati threw a pot plant. Ms Anderson called the police. They attended the house and charged Mr Uati with contravention of the AVO. On 4 October 2017, Mr Uati pleaded guilty to this charge. He was given a two year $200 bond which required him to attend for counselling, educational development or drug and alcohol rehabilitation. For about four or five months, Mr Uati attended weekly Alcoholics Anonymous meetings under the supervision of the probation services in Newcastle.

[26] On 22 March 2018, Mr Uati came home after a celebration for his football club. Mr Uati had been drinking alcohol and planned to stay at a friend’s place for the evening in order to comply with his AVO. But Ms Anderson called Mr Uati and told him that their baby was not well; Ms Anderson asked Mr Uati to come home. She picked him up from the football club. Later that evening, there was a loud argument in a nearby terrace house. Mr Uati went to the front door of his house to see what was going on. The police arrived while Mr Uati was out the front of his house. He was charged with contravening his AVO, on the basis that he was in the presence of Ms Anderson after consuming alcohol. On 31 May 2018, Mr Uati was convicted of contravening his AVO. He was sentenced to a community service order of 125 hours, and was required to enter into a bond. Mr Uati completed the 125 hours of community service and was released from his bond. Mr Uati also underwent counselling between April and July 2018 and March and May 2019, for support in relation to reducing his alcohol use.

[27] These three other police related matters weigh against a conclusion that Mr Uati is a fit and proper person to hold a right of entry permit.

Changes in Mr Uati’s life

[28] Mr Uati had a difficult start to life. He was born in Samoa and was the oldest of nine children. Mr Uati came to Australia at the age of nine with an uncle. He left his mother and siblings back home in Samoa. Mr Uati was sent by his mother to live in Australia so that he could get better schooling and have more opportunities. He was adopted by an aunt in Cabramatta, who was a single mother with a son and a daughter. Mr Uati’s aunt worked long hours to provide for the three children. After about five years of living with his aunt, Mr Uati was moved around between aunts and uncles for the remainder of his school years.

[29] Mr Uati could not speak English when he started primary school in Cabramatta. He was picked on. He got into fights with other children and was suspended on two occasions. Mr Uati struggled through primary school as a result of his limited English.

[30] Mr Uati started high school in Cabramatta. He joined the wrong crowd and was introduced to excessive alcohol consumption in year 7. Mr Uati also saw a lot of drug use in the apartment block in which he lived in Cabramatta. He was expelled from Cabramatta High School in year 8 for fighting. He was kicked out of his aunt’s house and went to live with an uncle and aunt in Fairfield. Although he attended high school in Fairfield, Mr Uati continued to socialise and consume alcohol with his friends from the Cabramatta area. With the alcohol came violence.

[31] Mr Uati was expelled from Fairfield High School in year 9 for fighting. He was kicked out of the house in which he was living and went to live with another aunt and uncle in Penrith. He went to high school in south Penrith. Mr Uati completed his higher school certificate but continued to consume alcohol to excess.

[32] Mr Uati obtained employment as an apprentice roof tiler after completing high school. He undertook that work for two years and then changed jobs to become a steel fixer. Mr Uati has worked for a number of companies as a steel fixer for the past eight or nine years.

[33] Mr Uati first became a CFMMEU delegate about five years ago and was a delegate from time to time until he was employed by the CFMMEU as an organiser on 25 May 2021.

[34] Mr Uati is now 29 years of age. He lives with his partner and daughter, who is three years old. Mr Uati also has two other daughters from a previous relationship. They are eight and six years old respectively. Mr Uati looks after his two other children every second weekend. Mr Uati pays child support for those two children.

[35] Mr Uati supports his mother at home in Samoa. He sends money to her every month. That is her only source of income.

[36] Mr Uati attended counselling on a number of occasions in his early years as a young adult. Those counselling sessions did not have any real impact on Mr Uati. However, I accept Mr Uati’s evidence that after completing counselling in 2018 and 2019 he was able to grow and change his ways, particularly insofar as alcohol is concerned. I accept Mr Uati’s evidence, supported by Ms Anderson’s evidence, that he only drinks on special occasions and is careful about the environment in which he drinks alcohol. Ms Anderson gave evidence, which I accept, that in the last three years she could count on one hand the number of times Mr Uati has touched alcohol, and on those occasions it has only been one or two drinks.

[37] I accept Mr Uati’s evidence that he is truly remorseful for and ashamed of his actions in relation to his past behaviour. Mr Uati’s expression of remorse is supported by the fact that he has not been involved in any criminal matters for more than three years.

[38] Mr Uati uses his income as a CFMMEU organiser to provide for his extended family. He is aware that holding an entry permit under the Act is a critical part of his job, and he will not continue to be employed by the CFMMEU if he does not obtain a right of entry permit. I accept that these factors will provide a real incentive for Mr Uati to comply with his obligations as a right of entry permit holder.

[39] Importantly, there is no suggestion in the material before the Commission that Mr Uati has ever responded with aggression or violence in the workplace. His behaviour in that regard seems to have been closely connected to his consumption of alcohol outside the workplace. Mr Uati’s reliability and integrity as an employee is supported by the statements provided by Mr Karantonis and Mr Lord. Mr Karantonis is a director of Steel City Group Pty Ltd. Mr Uati was employed by that organisation as a general hand and later as a supervisor. Mr Lord is the General Manager of Backam Group, which employed Mr Uati as a construction worker. Both Mr Karantonis and Mr Lord expressed confidence in their evidence that Mr Uati will comply with his obligations as a permit holder if he is issued a right of entry permit under the Act.

[40] Since Mr Uati turned his life around in about the past three years, he has started giving back to the community. In particular, he has helped out with a youth group for troubled young men in their teens and has been involved, as a member of a committee, in helping a range of community groups with various projects.

[41] I am satisfied that Mr Uati has matured, learned to deal with alcohol in a responsible way and turned his life around. He is responsible for the financial security of others and genuinely passionate about his work with the union. Mr Uati appreciates that he will lose that employment, together with the financial security that it brings, if he behaves inappropriately while exercising rights of entry. Those matters weigh in favour of the contention that Mr Uati is a fit and proper person to hold an entry permit.

Mr Uati’s understanding of his rights and responsibilities as a permit holder

[42] Even though Mr Uati has not previously held a right of entry permit, I am satisfied on the basis of the unchallenged evidence given by Mr Uati that he has a solid understanding of his rights and responsibilities as a permit holder. This weighs in support of the contention that he is a fit and proper person to hold an entry permit.

Adequacy of information disclosed by Mr Uati

[43] Submissions were made to the effect that Mr Uati has failed to disclose sufficient information about his past conduct. I do not accept those submissions. Mr Uati made a statutory declaration on 2 August 2021 in which he made detailed disclosures about his past, including his criminal history and the incidents which gave rise to those offences. Mr Uati’s evidence is supported by that given by Ms Anderson. There are some relatively minor differences in their accounts of some incidents, but their evidence is mostly consistent. Mr Uati accepts that Ms Anderson’s account is more likely to be more accurate than his own having regard to his consumption of alcohol in connection with the relevant events. Further, all the witnesses who made declarations and statements in support of the application, including Mr Uati and Ms Anderson, were available for cross examination.

Conclusion

[44] Ultimately, the assessment to be made is not a punitive one aimed at continuing to punish Mr Uati for his past wrongdoing. I accept Mr Uati’s evidence that he has changed his life and his troublesome past relationship with alcohol, and that he has a strong incentive to remain in stable employment with the CFMMEU and comply with his obligations under Part 3–4 of the Act.

[45] 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, on balance, that Mr Uati is a fit and proper person to hold a right of entry permit. The matters which weigh in favour of a finding that Mr Uati is a fit and proper person to hold a right of entry permit outweigh those that weigh against such a conclusion.

[46] I have considered whether any conditions should be imposed on any entry permit issued to Mr Uati conjointly with my consideration of whether he is a fit and proper person to hold an entry permit. My conclusion on that score is that no conditions should be imposed.

[47] In the circumstances, I am satisfied that it is appropriate to exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Uati with an entry permit.

DEPUTY PRESIDENT

Representation:

Mr P Boncardo, of counsel, forthe CFMMEU.

Mr M Seck, of counsel, on behalf of the ABCC.

Printed by authority of the Commonwealth Government Printer

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 1   Ashby v Slipper [2014] FCAFC 15 at [77]

 2 Section 480 of the Act

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

 4   Ibid at 405 [56] per Flick J

 5   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]

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

 7   [2015] FWC 1522

 8 [2015] FCAFC 56

 9   Ibid at [17]

 10   Ibid at [42]