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

[2021] FWC 2351

[2021] FWC 2351

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
(RE2021/364)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 29 APRIL 2021

Application for a right of entry permit for Anthony Dimitriou – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Dimitriou is a fit and proper person to hold a permit – permit issued.

[1] The Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch (CFMMEU) has 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 official, Anthony Dimitriou. Mr Dimitriou is employed by the CFMMEU as New South Wales Organiser.

[2] Pursuant to s.112 of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) the Australian Building and Construction Commissioner (ABCC) was given notice of the application. On 6 April 2021 we were advised that the ABCC did not wish to be heard in relation to this application. In the circumstances, I have decided to determine the application on the papers without holding a hearing.

Relevant statutory provisions and application

[3] 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 someabstract 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.

[4] 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

[5] 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

[6] 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 of 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.

[7] 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.

[8] I turn to consider the application.

Consideration

[9] In support of its application the CFMMEU filed declarations by Mr Dimitriou and Mr Darren Greenfield, New South Wales Divisional Branch Secretary (the Declarations).

Permit qualification matters – s.513(1)(a), (b), (c), (d), (e) and (f)

[10] According to the Declarations:

•  Mr Dimitriou 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 11 February 2021 (s.513(1)(a) of the Act));⁶ 

•  Mr Dimitriou has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);⁷

•  Mr Dimitriou 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

•  Neither Mr Dimitriou nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him (s.513(1)(d) of the Act);⁹

•  Mr Dimitriou 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);¹⁰

•  Mr Dimitriou has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Dimitriou 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);¹¹ and

•  Mr Dimitriou 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).¹²

[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 Dimitriou is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s.513(1)(g)

[12] The declarations disclose that Mr Dimitriou is a respondent to Federal Court proceedings brought by the ABCC. 13 Mr Dimitriou filed a defence in the proceedings, denying the contraventions alleged against him. The proceedings are part heard before Justice Katzmann, with proceedings in respect of liability concluding on 23 November 2020. Justice Katzmann’s decision as to liability is reserved.

[13] While it is appropriate that the matter has been disclosed, as the decision is reserved and no adverse finding has been made against Mr Dimitriou at this stage, I will not take this into account in determining whether Mr Dimitriou is a fit and proper person to hold an entry permit.

[14] There are no other matters of which I am aware that I consider relevant to the determination of whether Mr Dimitriou is a fit and proper person to hold an entry permit.

Conclusion

[15] Taking into account the permit qualification matters, for the reasons earlier stated I am satisfied that Anthony Dimitriou 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 Dimitriou is granted.

[16] A permit will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR729032>

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 30 March 2021 at (a) and CFMMEU Letter dated 12 February 2021

7 Ibid at (b)

8 Ibid at (c)

9 Ibid at (d)

10 Ibid at (e)

11 Ibid at (f)

12 Ibid at (g)

 13   NSD2057/2019