Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, SA Divisional Branch
[2022] FWC 1355
•30 MAY 2022
| [2022] FWC 1355 |
| 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, SA Divisional Branch
(RE2022/282)
| COMMISSIONER RYAN | SYDNEY, 30 MAY 2022 |
Application by CFMMEU for issue of right of entry permit for Mark Timothy Palmer – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Palmer is a fit and proper person – permit issued.
Introduction
On 7 April 2022 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application to the Fair Work Commission (Commission) pursuant to s.512 of the Fair Work Act 2009 (Cth) (Act) for an entry permit for Mr Mark Timothy Palmer (Mr Palmer), who is employed by the CFMMEU as an organiser. Mr Palmer also holds the office of Divisional Branch Vice President.
In addition to the application and accompanying declarations, the CFMMEU filed further submissions in support of the application on 17 May 2022.
An entry permit confers a statutory right upon the permit holder to enter certain premises for the purposes of holding discussions with employees and investigating suspected contraventions of the Act, fair work instruments, and/or State or Territory work health and safety laws.
An entry permit can only be issued to an official of an organisation if the Commission is satisfied that the official is a fit and proper person to hold the entry permit.
In determining this application, I have had regard to all of the materials filed.
For the reasons that follow, I am satisfied that Mr Palmer is a fit and proper person to hold an entry permit and that it is appropriate to exercise my discretion to grant Mr Palmer an entry permit.
Relevant Legislative Provisions
Section 512 of the Act provides as follows:
FWC may issue entry permits
The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.
Section 513 of the Act provides as follows:
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.
Section 515 of the provides as follows:
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).
(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.
(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).
Approach to ‘fit and proper person’
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[1], 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] FWCFB4397, 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.”[2]
In Maritime Union of Australia v Fair Work Commission (MUA v FWC)[3], 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.’”[4]
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’.”[5]
Consideration
I now turn to a consideration of the permit qualification matters set out in s.513(1)(a)-(g) of the Act. In considering these matters, I have accepted the information in the declarations filed in support of the application.
s.513(1)(a)
Mr Palmer completed an approved right of entry training course on 23 March 2022. This weighs in favour of a conclusion that Mr Palmer is a fit and proper person to hold an entry permit.
s.513(1)(b)
Mr Palmer has never been convicted of an offence against an industrial law. This weighs in favour of a conclusion that Mr Palmer is a fit and proper person to hold an entry permit.
s.513(1)(c)
Mr Palmer 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.
However, Mr Palmer disclosed that on 16 May 2013 he was convicted of the offence of disorderly behaviour under the Summary Offences Act 1953 (SA).
The background to the matter was that Mr Palmer was involved in a fight in which he was defending his brother following an evening of heavy drinking.[6] While he was convicted of disorderly behaviour, the court discharged with matter without penalty.[7]
In the time since that offence, Mr Palmer has not been convicted of any other offence, does not use recreational drugs of any kind, and in relation to alcohol, Mr Palmer has been sober for approximately the last seven years.[8]
Mr Palmer regrets his actions in 2013.[9]
The CFMMEU submits that in considering whether Mr Palmer is a fit and proper person, little weight should be placed on the offence as it was at the lesser end of seriousness, occurred approximately nine years ago and was discharged by the court without penalty.[10]
The CFMMEU further submitted that in determining whether a proposed permit holder is a fit and proper person, the assessment to be made is “not a punitive one aimed at continuing to punish [the permit holder] for past wrongdoing”.[11]
While convictions of offences involving intentional use of violence against another person weigh against a conclusion that Mr Palmer is a fit and proper person to hold an entry permit, I am satisfied that Mr Palmer’s regret and the changes he has made to his lifestyle diminish (but do not extinguish) the adverse weight that I give to this matter.
s.513(1)(d)
Neither Mr Palmer 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 Palmer. This weighs in favour of a conclusion that Mr Palmer is a fit and proper person to hold an entry permit.
s.513(1)(e)
Mr Palmer has never had an entry permit under Part 3-4 of the Act, or a similar law of the Commonwealth revoked, suspended or made subject to conditions. This weighs in favour of a conclusion that Mr Palmer is a fit and proper person to hold an entry permit.
s.513(1)(f)
Mr Palmer has never had an entry permit under a State or Territory industrial or work, health and safety law cancelled, suspended or made subject to conditions, nor has he been disqualified from exercising or applying for an entry permit under such laws. This weighs in favour of a conclusion that Mr Palmer is a fit and proper person to hold an entry permit.
s.513(1)(g)
I am satisfied that there are no other relevant matters that I must consider.
Conclusion
After taking into account each of the permit qualification matters, I am satisfied, on balance, that Mr Palmer is a fit and proper person to hold an entry permit. The matters which weigh in favour of a finding that Mr Palmer is a fit and proper person to hold a right of entry permit outweigh those that weigh against such a conclusion.
I am also satisfied that no conditions should be imposed pursuant to s.515 of the Act.
Given my conclusion that I am satisfied that Mr Palmer is a fit and proper person to hold an entry permit and absent any discretionary reasons not to issue a permit, I consider that it is appropriate to exercise my discretion to issue an entry permit to Mr Palmer.
The Application is granted. An entry permit will be issued separately to this decision.
COMMISSIONER
[1] [2015] FWC 1522.
[2] Ibid at [32].
[3] [2015] FCAFC 56.
[4] Ibid at [17].
[5] Ibid at [42].
[6] Proposed Permit Holder Declaration at [4].
[7] Ibid.
[8] Ibid at [5]-[6].
[9] Ibid at [6].
[10] CFMMEU Submissions dated 17 May 2022 at [11].
[11] Ibid, citing Application by Communications, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union of Australia- Electrical, Energy and Services Division- Queensland and Northern Territory Divisional Branch [2017] FWC 96 at [34].
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