Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch

[2023] FWC 1057

[2023] FWC 1057

The attached document replaces the document previously issued with the above code on 5 May 2023.

Correction to paragraph numbering

Associate to Deputy President Gostencnik

Dated 8 May 2023

[2023] FWC 1057 [Note: a correction has been issued to this document]

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, Queensland Northern Territory Divisional Branch

(RE2023/252)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 5 MAY 2023

Application for a right of entry permit for William Kane Lowth – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Lowth is a fit and proper person to hold a permit – order revoking lost entry permit issued – permit issued.

1. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied to the Fair Work Commission (Commission) under s 0512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, William Kane Lowth. Mr Lowth is employed by the CFMMEU as the Divisional Branch Assistant Secretary.

1. Mr Lowth was issued an entry permit on 19 October 2021.[1] The expiry date for this permit is 19 October 2024. In a Statutory Declaration dated 14 March 2023, Mr Lowth declared that on a work trip sometime between Monday, 27 February 2023 and Friday, 3 March 2023, he misplaced the permit. Mr Lowth further stated that he conducted searches of the places where it may have been misplaced and searched the Queensland Police Lost and Found database, however he was unable to find the permit.

1. The Commission does not appear to have a general power under the Act to replace a lost or stolen entry permit. For Mr Lowth to hold a valid entry permit and to be in a position to produce it when requested by an occupier to do so, the existing permit, which has been lost, must be revoked and an application for a new permit to be issued must be made. To issue a permit to Mr Lowth, I need to be satisfied that he is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters.

1. The applicable principles for determining right of entry permit applications under s 512 are well settled and not controversial. They need not be restated.

Consideration

1. In support of its application the CFMMEU initially filed declarations by Mr Lowth and Mr Michael Ravbar, Divisional Branch Secretary on 24 March 2023. Upon review of the declarations, the Registered Organisations team of the Commission identified that the declarations of 24 March 2023 incorrectly stated that Mr Lowth had not had any conditions imposed on previous entry permits which he held and the Commission sought amended declarations via email to the CFMMEU on 13 April 2023. Amended declarations were filed with the Commission on 24 April 2023 (the Declarations).

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

1. According to the Declarations:

·   Mr Lowth 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 completed on 2 September 2021 (s 513(1)(a) of the Act));[2]

·   Mr Lowth has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[3]

·   Mr Lowth 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;[4]

·   Mr Lowth has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Lowth 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);[5] and

·   Mr Lowth 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).[6]

1. 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 Lowth is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s 513(1)(d)

1. As a result of Mr Lowth’s conduct, civil penalties were imposed on Mr Lowth’s then employer, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, on 13 August 2009.[7] However, these penalties were later quashed on appeal by the Full Court of the Federal Court,[8] and the application was later dismissed.[9]

1. I do not consider this to be a material matter.

Permit qualification matters – s 513(1)(e)

1. On 18 September 2014, findings were made against Mr Lowth and his right of entry permit was suspended for one month. However, the suspension was later quashed on appeal by the Full Bench of the Commission.  This matter is therefore not material.

1. On 4 December 2015 Mr Lowth has had the following conditions imposed on previous entry permits:[10]

1. Mr Lowth must take steps to verify that his entry permit is current before he issues any entry notice under the Fair Work Act 2009.

2. Mr Lowth must have his entry permit on his person at any time he exercises entry rights under Part 3-4 of the Fair Work Act 2009 and must produce that entry permit in accordance with the requirements of ss 489 and 497 (as applicable).

3. The period in which the condition applied has ceased.  There is no other factor suggesting that some material weight ought to be given to the imposition of this condition previously. I do not consider this matter to be significant.

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

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

Mr Lowth’s existing permit

1. As mentioned earlier, the Commission does not have a general power under the Act to replace an entry permit that is lost or stolen. A revocation of the existing permit is required and a new permit may be issued subject to the requirements in s 512 of the Act.

1. The relevant power to revoke is found in s 603 of the Act which relevantly provides:

“603 Varying and revoking the FWC’s decisions

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note:       If the FWC makes a decision to make an instrument, the FWC
                may vary or revoke the instrument under this subsection (see

subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

…”

1. The reference to “decision” in s 603 of the Act carries the meaning ascribed to it by s 598. Subsection 603(1) confers a discretion to vary or revoke ‘a decision of the FWC that is made under [the] Act’ (other than a decision referred to in s 603(3)). Section 603(3) expressly excludes certain classes of decisions from the scope of the general power to vary or revoke in s 603(1).

1. A decision of the Commission to issue an entry permit is a decision which falls within the scope of s 603(1) in that it is a decision made by the Commission under the Act that does not fall within the scope of the exclusions in s 603(3).

1. In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Mr Lowth in matter RE2021/1056.

Conclusion

1. Pursuant to s 603 of the Act, the entry permit RE2021/1056 issued to Mr Lowth by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR761631.

1. Taking into account the permit qualification matters, for the reasons earlier stated I am satisfied that William Kane Lowth 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 Lowth is granted.

1. A permit will be separately issued.

DEPUTY PRESIDENT

[1] RE2021/1056

[2] Form F42, Declaration by proposed permit holder dated 24 April 2023 at (a)

[3] Ibid at (b)

[4] Ibid at (c)

[5] Ibid at (f)

[6] Ibid at (g)

[7] John Holland Pty Ltd (CAN 004 282 268) v Construction, Forestry, Mining and Energy Union (No. 2) [2009] FCA 865

[8] Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (includes Corrigendum dated 27 July 2010) [2010] FCAFC 90

[9] John Holland Pty Ltd (CAN 004 282 268) v Construction, Forestry, Mining and Energy Union (No. 2) [2011] FCA 770

[10] RE2015/1043 and RE2015/1044

Printed by authority of the Commonwealth Government Printer

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