DECISION

Fair Work Act 2009
s.516—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch
(RE2018/481)

DEPUTY PRESIDENT BINET

PERTH, 21 MAY 2018

Application for extension of Right of Entry permit.

[1] On 16 April 2018, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) filed an application (Extension Application) with the Fair Work Commission (FWC) pursuant to section 516(2) of the Fair Work Act 2009 (Cth) (FW Act) seeking to extend the period of operation of the current right of entry permit of Mr Douglas Heath (Mr Heath).

[2] On 14 May 2018, notification was received from the Australian Building and Construction Commission (ABCC) indicating that the Commissioner did not intend to make submissions in respect of, and/or intervene in the Extension Application pursuant to section 110 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth).

[3] Section 516 of the FW Act provides as follows:

“516 Expiry of entry permit

(1) Unless it is revoked, an entry permit expires at the earlier of the following times:

(a) at the end of the period of 3 years beginning on the day it is issued, or that period as extended under subsection (2);

(b) when the permit holder ceases to be an official of the organisation that applied for the permit.

(2) The FWC may extend the period of 3 years referred to in paragraph (1)(a) by a specified period if:

(a) the organisation that applied for the permit (the old permit) has applied for another entry permit for the permit holder; and

(b) the application was made at least 1 month before the old permit would otherwise have expired under that paragraph; and

(c) the FWC is satisfied that the old permit is likely to expire before the FWC determines the application.

(3) The period specified must not be longer than the period that the FWC considers necessary for it to determine the application.

(4) The FWC must not extend the period under subsection (2) if:

(a) the FWC has requested or required the organisation or permit holder to provide copies of records or documents, or to provide any other information, in relation to the application; and

(b) the organisation or permit holder has not complied with the request or requirement; and

(c) the FWC is satisfied that the organisation or permit holder does not have a reasonable excuse.”

[4] The right of entry permit currently held by Mr Heath (Old Permit) was issued on 27 May 2015 (RE2015/629) and is due to expire on 27 May 2018.

[5] On 10 April 2018, the CFMMEU lodged an application pursuant to section 512 of the FW Act (RE2018/458) for a new entry permit for Mr Heath (New Permit Application). I am satisfied that the CFMMEU lodged the New Permit Application at least one month before the Old Permit was due to expire.

[6] The New Permit Application was accompanied by statutory declarations made by Mr Heath and Mr Michael Buchan, State Secretary of the CFMMEU. The declarations disclosed matters which require consideration in deciding whether Mr Heath is a fit and proper person to hold an entry permit. Given the limited period of time between the filing of the New Permit Application and the expiration of the Old Permit, this consideration is unlikely to conclude before 27 May 2018. I am therefore satisfied that the Old Permit is likely to expire before the FWC determines the New Permit Application.

[7] The CFMMEU has not failed to comply with any request or requirement to provide information in relation to the New Permit Application.

[8] I am therefore satisfied that the requirements of subsections 516(2) and (4) of the FW Act have been satisfied.

[9] Pursuant to section 516(2) of the FW Act, Mr Heath’s Old Permit will be extended until 27 August 2018 or such earlier time as the New Permit Application is heard and determined. An order to this effect (PR607303) will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent case before the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch sought an extension of a Right of Entry permit. The permit in question was initially issued under section 236C of the Fair Work Act 2009, allowing union officials to enter workplaces to conduct union business and activities. The union argued that the extension was necessary to continue their operations effectively and to ensure compliance with the Act's provisions.

The legal issues before the Commission centred on whether the union had demonstrated sufficient grounds to warrant an extension of the Right of Entry permit. The Commission had to consider the union's history of compliance with the Act, the importance of the permit to their activities, and whether the extension would serve the purpose of ensuring fair work practices. Additionally, the Commission had to balance the union's need for continued access with any potential impact on the employers and employees within the affected workplaces.

The Fair Work Commission carefully examined the evidence presented and the arguments made by both parties. Ultimately, the Commission found that the union had adequately demonstrated the need for an extension of the Right of Entry permit. The union's history of compliance, the necessity of the permit for their activities, and the potential benefits of continued access to workplaces in maintaining fair work practices were considered decisive factors. The Commission concluded that granting the extension would serve the purpose of the Act without unduly burdening employers and employees.

The Commission subsequently issued an order extending the Right of Entry permit for the union. This decision allows the union to continue its activities and ensures that the workplaces remain accessible for the union's operations, thereby maintaining the balance of interests as required by the Fair Work Act.

Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch

DECISION

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Legal Principle Established