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

[2021] FWC 5066

[2021] FWC 5066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
(RE2021/782)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 19 AUGUST 2021

Application for a right of entry permit for Royce Graham Kupsch – whether fit and proper person to hold an entry permit under the Act – satisfied that Royce Graham Kupsch 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, Queensland Northern Territory Divisional Branch (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, Mr Royce Graham Kupsch. Mr Kupsch is employed by the CFMMEU as a Workplace Health and Safety Co-ordinator.

[2] Mr Kupsch has held a right of entry permit under the Act and its predecessor for about 22 years. Mr Kupsch’s current permit will expire on 20 August 2021.

[3] 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 10 August 2021 I was 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

[4] 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.

[5] In an application for a permit under s 512 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’ and is a matter which the decision maker is bound to take into account. 2 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 process3 and to evaluate it and give it due weight, having regard to all other relevant factors.4 All of the permit qualification matters identified in s 513(1) of the Act must be taken into account and 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 and not be merely noticed and disregarded.5 In weighing relevant matters, the weight given to a particular matter is ultimately a matter for the Commission subject to some qualification, which for example might lead a court to set aside a decision if the decision maker has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.6

[6] 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.

[7] I turn to consider the application.

Consideration

[8] In support of its application the CFMMEU filed declarations by Mr Kupsch and Mr Michael Ravbar, Divisional Branch Secretary (the Declarations).

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

[9] According to the Declarations:

•  Mr Kupsch 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 18 June 2021 (s.513(1)(a) of the Act));⁷

•  Mr Kupsch has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);⁸

•  Mr Kupsch 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;⁹

•  Neither Mr Kupsch 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);¹⁰

•  Mr Kupsch 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);¹¹

•  Mr Kupsch has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Kupsch 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);¹² and

•  Mr Kupsch 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).¹³

[10] 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 Kupsch is a fit and proper person to hold a right of entry permit.

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

[11] The Declarations disclosed that Mr Kupsch is a respondent to Federal Court proceedings in Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union & Ors. 14

[12] Relevantly, in Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union & Ors (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) 15 Collier J found that in relation to conduct occurring on 17 April 2018, Mr Kupsch contravened ss 497 and 500 of the Act. By order made on 7 November 2019, Collier J made the following declarations in relation to earlier findings:

The Eighth Respondent – Royce Kupsch

27. On 17 April 2018, the eighth respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 497 of the FW Act by continuing to exercise a State or Territory OHS right after having refused a lawful request by the occupier of the Site to produce his Federal entry permit for inspection.

28. In respect of the eighth respondent’s contravention of section 497 of the FW Act referred to in the previous declaration, the first respondent:

(a) engaged in the eighth respondent’s conduct by operation of section 793(1) of that Act and thereby participated in the contravention;

(b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting the contravention;

(c) was accordingly knowing concerned in the contravention within the meaning of section 550 of that Act; and

(d) thereby itself contravened section 497 of the FW Act on 17 April 2018.

29. On 17 April 2018, the eighth respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:

(a) refusing requests by the occupier of the Site to produce his Federal entry permit for inspection;

(b) refusing requests by the occupier of the Site to leave the Site;

(c) entering a work area, causing a representative of the occupier of the Site to instruct workers to stop work because the representative was concerned that the seventh respondent's presence would create a safety hazard; and

(d) failing to comply with requests from the Queensland Police Service to leave the Site.

30. In respect of the eighth respondent’s contravention of section 500 of the FW Act referred to in the previous declaration, the first respondent:

(a) engaged in the eighth respondent’s conduct by operation of section 793(1) of that Act and thereby participated in the contravention;

(b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting the contravention.

(c) was accordingly knowing concerned in the contravention within the meaning of section 550 of that Act; and

(d) thereby itself contravened section 500 of the FW Act on 17 April 2018.

[13] Subsequently on 18 November 2019 Mr Kupsch along with other respondents, filed a notice of appeal against the judgment and orders made by Collier J. On 24 November 2020 in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) 16a Full Court of the Federal Court dismissed the appeal. Thereafter an application for special leave in the High Court was made and on 8 April 2021 the special leave application was refused.

[14] Penalties have yet to be imposed on Mr Kupsch or on the CFMMEU in relation to Mr Kupsch’s contravening conduct. The proceeding is ongoing and is listed for hearing before Collier J as to penalty on 29 October 2021.

[15] As is evident from the above Collier J declared that Mr Kupsch contravened s 497 of the Act by continuing to exercise a State or Territory OHS right after having refused a lawful request by the occupier of the relevant site to produce his Federal entry permit for inspection. Collier J declared that Mr Kupsch contravened s 500 of the Act when attending and entering the site and when exercising a State or Territory OHS right, by acting in an improper manner by:

•  refusing requests by the occupier to produce his Federal entry permit for inspection;

•  refusing requests by the occupier to leave the site;

•  entering a work area, causing a representative of the occupier of the site to instruct workers to stop work because the representative was concerned that the presence of Mr Partfitt, another official of the CFMMEU, would create a safety hazard; and

•  failing to comply with requests from the Queensland Police Service to leave the site.

[16] Section 494 of the Act provides that an official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder. At the time of the contravention Mr Kupsch was a permit holder. Section 497 of the Act provides that a permit holder must not exercise a State or Territory OHS right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer. At the time of attending the premises at which entry was sought Mr Kupsch, and other CFMMEU officials, asserted that they wished to enter the site pursuant to s 81(3) of the Work Health and Safety Act 2011 (Qld) (WHS Act). The officials were told that they were not permitted to enter the site without producing entry permits and were requested to produce their entry permits for inspection. Mr Kupsch and the other officials did not produce their entry permits for inspection and subsequently entered and walked around parts of the site. The contravening conduct occurred in circumstances where Mr Kupsch and the other officials contended that they were not exercising a State or Territory OHS right in that s 81(3) of the WHS Act is no more than facilitative and does not create a legal authority or legal entitlement to enter premises, and so they were not exercising a State or Territory OHS right.

[17] Section 81 of the WHS Act provides:

Resolution of health and safety issues

(1) This section applies if a matter about work health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion between the parties to the issue.

(2) The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed in the regulations.

(3) A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue.

[18] Although the contravening conduct in which Mr Kupsch has been found to have engaged is contrary to the rights and obligations afforded a permit holder and is highly relevant in assessing whether Mr Kupsch is a fit and proper person to hold an entry permit, I accept that Mr Kupsch’s conduct was not an act of deliberate contravening in the sense that he knew that he was exercising a State or Territory OHS right and could not do so without producing his entry permit requested. Instead, he held the erroneous belief that the entry that he sought was not the exercise of a State or Territory OHS right.

[19] I accept that his point of view was at least arguable at the time, although in light of the consideration of s 494 of the Act by the Full Court in Australian Building and Construction Commissioner v Powell 17 which concerned the effect of s 58(1)(f) of the Occupational Health and Safety Act 2004 (Vic) and whether it conferred a State or Territory OHS right, in my view not strongly arguable. The Full Court concluded that a relevant provision conferred a right on a union official to enter premises for the purposes of s 494 of the Act.

[20] As to the contravening conduct concerning the s 500 contravention, Collier J said:

I am satisfied that the conduct of Messrs Parfitt and Kupsch constituted a breach of the standards of conduct that would be expected of persons in their position by reasonable persons with knowledge of the duties, powers and authority of the position. In the circumstances of the case, their conduct was improper within the meaning of s 500.

[21] Taken together, these matters weigh against a conclusion that Mr Kupsch is a fit and proper person to hold a right of entry permit. That said, I accept that the contravening conduct occurred during a single site visit on 17 April 2018 and that Mr Kupsch has not been found to have contravened the Act or an industrial law before, or since that day. I also accept that over his otherwise unblemished 22-year career as a permit holder, the conduct appears isolated and motivated not by deliberate defiance of the law but by an erroneous understanding of it, and about which he has now been disabused. These matters are relevant to the weight which might otherwise attach to this kind of contravening conduct in assessing a proposed permit holder’s fitness and propriety.

[22] Ultimately, appropriately weighing these matters in the context of the other permit qualification matters which are favourable in an assessment of Mr Kupsch’s fitness and propriety, I conclude that the contravening conduct in which he was found to have engaged on 17 April 2018, does not weigh so heavily as to warrant a conclusion that Mr Kupsch is not a fit and proper person to hold an entry permit.

Conclusion

[23] Taking into account the permit qualification matters, for the reasons earlier stated I am satisfied that Mr Royce Graham Kupsch 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 Kupsch is granted.

[24] A permit will be separately issued.

DEPUTY PRESIDENT

Written submissions:

Applicant, 16 August 2021

Printed by authority of the Commonwealth Government Printer

<PR732884>

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   Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [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

 5   Ibid

 6   Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15]

7 Form F42, Declaration by proposed permit holder dated 9 July 2021 at (a) and CFMMEU, Certificate of Achievement dated 18 June 2021

8 Ibid at (b)

9 Ibid at (c)

10 Ibid at (d)

11 Ibid at (e)

12 Ibid at (f)

13 Ibid at (g)

 14   QUD238/2018

 15 [2019] FCA 1737

 16 [2020] FCAFC 203

 17 [2017] FCAFC 89; (2017) 251 FCR 470