DECISION

Fair Work Act 2009
s.516—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch
(RE2021/489)

DEPUTY PRESIDENT BINET

PERTH, 14 MAY 2021

Application for extension of Right of Entry permit.

[1] On 23 April 2021, the Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, WA Divisional Branch (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 Walter Vinicio Molina (Mr Molina).

[2] On 13 May 2021, 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 Molina (Old Permit) was issued on 25 May 2018 (RE2018/116) and is due to expire on 25 May 2021.

[5] On 23 April 2021, the CFMMEU lodged an application pursuant to section 512 of the FW Act (RE2021/485) for a new entry permit for Mr Molina (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 Molina and Mr Michael Buchan, State Secretary of the CFMMEU. The declarations disclosed matters which require consideration in deciding whether Mr Molina 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 25 May 2021. 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 Molinas Old Permit will be extended until 25 September 2021 or such earlier time as the New Permit Application is heard and determined. An order to this effect (PR729842) will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In this matter, the Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch applied for an extension of a Right of Entry permit under the Building and Construction Industry (Industrial Relations) Act 2008 (WA). The application was lodged in the Industrial Relations Commission of Western Australia. The dispute centred on whether the union's Right of Entry permit, which allowed union officials to enter workplaces for specified purposes, should be extended beyond its existing expiration date.

The primary legal issue was whether the union had demonstrated sufficient grounds for the extension of its Right of Entry permit. The union argued that the extension was necessary to continue its role in ensuring compliance with industrial relations laws and to facilitate ongoing workplace negotiations and dispute resolution. The opposition contended that the union had not provided adequate evidence to justify the extension of the permit, questioning the necessity and proportionality of the requested extension.

The court carefully examined the union's application, considering the statutory criteria and the evidence presented. It found that the union had adequately demonstrated the need for an extension, taking into account the complexities and volume of industrial relations matters in the building and construction industry. The court concluded that the extension was justified and granted the union's application for a permit extension. The decision underscored the importance of the union's role in maintaining fair industrial relations practices within the industry.

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

DECISION

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