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

[2019] FWC 4271

[2019] FWC 4270

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch
(RE2019/382)

DEPUTY PRESIDENT BINET PERTH, 5 JULY 2019

Application for right of entry permit for Peter David Joshua – Application granted

[1] On 1 May 2019, the Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, WA Divisional Branch (CFMMEU) filed an application (Permit Application) pursuant to section 512 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) for a right of entry permit for Mr Peter David Joshua (Joshua).

[2] On 27 May 2019, the Australian Building and Construction Commission (ABCC) notified the FWC that the ABCC Commissioner did not intend to make submissions in respect of, and/or intervene pursuant to section 110 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) in the Application.

Background

[3] Mr Joshua is currently 36 years old. He commenced working in the construction industry on a full time basis in 2005. From 2010 until February 2014 he was employed as an official of the CFMMEU. He returned to work in the construction industry for 6 months before returning to work as an official of the CFMMEU on 28 August 2014. In late May 2017 he returned to working in the construction industry. On 1 May 2019 he commenced employment as an official of the CFMMEU. 1

[4] Mr Joshua does not currently hold an entry permit issued under the FW Act. He does however hold an entry permit issued by the Western Australian Industrial Relations Commission pursuant to section 49I of the Industrial Relations Act 1979 (WA) which was issued to him on 24 May 2019. He has previously held an entry permit issued under the FW Act which was issued to him on 12 September 2014 and returned on 29 May 2017 when he returned to work in the construction industry. 2

Relevant Statutory Provisions

[5] The provisions concerning entry permits are found in Part 3-4 of the FW Act. The object of Part 3-4 is set out in section 480 of the FW Act:

“480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(a) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(b) the right of occupiers of premises and employers to go about their business without undue inconvenience.”

[6] In Maritime Union of Australia v Fair Work Commission (MUA v FWC) 3, the Full Court of the Federal Court (North, Flick and Bromberg JJ) observed that:

“[15] Section 480 … sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited (1979) 143 CLR 499 at 540 per Mason J.”

[7] Section 512 of the FW Act states that:

“512 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.”

[8] In The Maritime Union of Australia 4 a Full Bench of the FWC (Deputy President Gostencnik, Deputy President Wells and Commissioner Blair) considered the question of whether a person is a fit and proper person in the context of the right of entry regime established by Part 3–4 of the FW Act and observed that:

“[23] …the relevant question, in determining whether the Commission is permitted to exercise the discretion to issue an entry permit to an official of an organisation under s 512, is whether the official “is a fit and proper person to hold an entry permit”. The description “fit and proper person” in s.512 is not defined and standing alone, it carries no precise meaning. Generally, though, the description is used as a measure of suitability to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. However, the description will take its meaning from its context, from the activities in which the person to be assessed is or will be engaged and the ends to be served by those activities. Taking into account context, the structure of s.512 and the activities to be engaged in by an official if an entry permit will issue, it seems to us clear that that description is to be applied by reference to the suitability of the official “to hold the entry permit”.

[9] The focus of the FWC’s inquiry is therefore not whether the proposed permit holder is a fit and proper person per se. Rather, it is whether the proposed permit holder is a fit and proper person to hold an entry permit. 5

[10] Whether a proposed permit holder is a fit and proper person to hold an entry permit will require consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attached to the exercise of those rights and the responsibilities that must be discharged in the exercise of those rights. 6

[11] Section 513(1) of the FW Act sets out the matters that are to be taken into account in determining whether a proposed permit holder is a fit and proper person to hold a right of entry permit (Permanent Qualification Matters) as follows:

“513 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.”

[12] The Permit Qualification Matters delineated by section 513(1) are mandatory considerations. Each of the Permit Qualification Matters must be considered and given appropriate weight. There is no statutory indication that any particular Permit Qualification Matter should be given more weight than any other. 7

[13] Consideration of Permit Qualification Matters is to be directed to the personal characteristics of the proposed permit holder pertinent to the discharge of the functions and the exercise of the rights associated with holding a permit.⁸

Consideration

[14] The FWC may issue a permit to a proposed permit holder if the FWC is satisfied that the proposed permit holder is a fit and proper person to hold an entry permit. In deciding whether the official is a fit and proper person, the FWC must take into account each of the Permit Qualification Matters. 9

[15] In relation to the Permit Qualification Matter set out in section 512(1)(a) of the FW Act, Mr Joshua produced evidence that he completed the Australian Council of Trade Unions Right of Federal Right of Entry training course on 29 April 2019. 10 In the seven years prior to this he undertook training conducted internally by the CFMMEU on three occasions.11 I am satisfied that Mr Joshua has completed training about the rights and responsibilities of a permit holder in accordance with section 512(1)(a) of the FW Act.

[16] In relation to the Permit Qualification Matter set out in section 512(1)(b), Mr Joshua has declared that he has not been convicted of any offence against an industrial law. 12 There is no evidence before me that Mr Joshua has been convicted of an offence against an industrial law. Mr Joshua has been a participant in the building and construction industry since 2005 as a worker, unionist and/or official. That he has not committed an offence against an industrial law in this period weighs in favour of his fitness and proprietary to hold an entry permit.

[17] In relation to the Permit Qualification Matter set out in section 512(1)(c), Mr Joshua declared that he has been convicted of only two offences against a law of the Commonwealth, a State, a Territory or a foreign country involving: entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. 13

[18] The first offence was committed in 2002 and involved damage to an ATM. The second offence was committed in 2004 and involved damage to a rental property. A fine of $2,000 was imposed in relation to the first offence and he was ordered to perform 120 hours of community service in relation to the second offence. 14

[19] According to Mr Joshua:

“These convictions arose from incidents involving the excessive consumption of alcohol. After the second of these incidents, I undertook counselling in accordance with the Court’s orders. This was on the of the best things I have done. The counselling enabled me to deal with issues I had about anger management, but probably more importantly, with my alcohol consumption. My alcohol consumption was not controlled at this time and I behaved in a away that I am ashamed of and regret deeply. I am remorseful for my conduct. I have not behaved in this way since.”

[20] These offences occurred more than 14 years ago when Mr Joshua was in his early twenties. The offences occurred before Mr Joshua entered the construction industry. The offences occurred when Mr Joshua was experiencing difficulties in managing his alcohol consumption. He has taken steps to address this and the lack of offending since 2004 suggests that those steps have been successful.

[21] Having regard to the circumstances of the offences and lack of subsequent offending I am satisfied that these convictions do not militate against a finding that Mr Joshua is presently a fit and proper person to hold an entry permit.

[22] In relation to the Permit Qualification Matter set out in section 512(1)(d), Mr Joshua has declared that he has only been ordered to pay a penalty under the FW Act or any other industrial law in relation to action taken by him on one occasion. 15

[23] That penalty was imposed after Mr Joshua was found to have contravened section 348 of the FW Act on 22 October 2013 when he participated in a blockade to prevent workers accessing the Perth International Airport site with the intention of coercing the payment of outstanding wages and contractual entitlements of employees of Concealed Interiors and Exteriors Pty Ltd.

[24] While his actions might have been premised on concerns about employees not being paid their lawful entitlements it does not detract from the fact that the conduct constituted a serious breach of industrial law.

[25] In support of this Application it is submitted on his behalf that 16:

a. Mr Joshua facilitated the course of justice by making admissions at an early stage of proceedings.

b. The conduct did not relate to Mr Joshua’s exercise of rights of entry.

c. The conduct occurred in 2013 and is the only contravention by Mr Joshua in a period of seven years as an organiser.

[26] Mr Joshua says that he has been taken through the judgements of the Federal Court and Full Federal Court in the matter by a legal officer of the CFMMEU who has explained to him how his conduct breached the FW Act. In his evidence in these proceedings Mr Joshua was able to articulate an understanding of the adverse action laws and the consequences for breaching them. He was also able to articulate an understanding of the right of entry laws. 17

[27] The contravention weighs against the granting of a permit. I also note that Mr Joshua has not expressed contrition in relation to his conduct. Talk can be cheap. Words of contrition are of little value if they are hollow and not reflected in action. In Mr Joshua’s case notwithstanding the lack of expression of contrition his actions with the exception of the one contravention demonstrate a pattern of compliance with the relevant industrial laws.

[28] In relation to the Permit Qualification Matter set out in section 512(1)(e) of the FW Act, Mr Joshua has declared that he has not had an entry permit under the FW Act, or under a similar law of the Commonwealth, revoked, suspended or made subject to conditions. 18

[29] In relation to the Permit Qualification Matter set out in section 512(1)(f) of the FW Act, Mr Joshua has declared that he has not had an entry permit under a State or Territory industrial law or a State or Territory OHS law, cancelled, suspended or made subject to conditions nor been disqualified exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under such laws.

[30] That Mr Joshua has not had a State or Federal entry permit revoked, suspended or made subject to conditions weighs in favour of Mr Joshua’s fitness and proprietary to hold an entry permit.

[31] With respect to the Permit Qualification Matter set out in section 512(1)(g) of the FW Act, Mr Joshua says that as an organiser based in the Perth CBD if he is not granted an entry permit he will hampered in his capacity to perform his duties as an Organiser as a majority of sites would not permit him entry without a permit. Mr Joshua describes these duties as follows:

•  Meet and Communicate with union members and assist them in relation to industrial other issues, including speaking to young workers about their workplace entitlements and superannuation.

•  Providing support to workers with mental health issues by referring them to Mates in Construction (MIC) which is a mental health programme developed to support and assist workers with mental health issues.

•  Meet with and communicate with workers who are not members of the union to convince them of the benefits of joining the Union.

•  Investigate suspected contraventions of the Fair Work Act, enterprise agreements and Awards on behalf of union members.

•  Investigate suspect contravention of the OSH Act that relate to or affect workers.

[32] In support of his application Mr Joshua tendered a character reference. The letter attests to the assistance Mr Joshua provided to its writer to access the MATES in Construction program. The letter is unsigned and undated but does exemplify the importance of the program in the construction industry and the critical role organisers can play in encouraging workers to access the program.

Conclusion

[33] Mr Joshua has had two convictions recorded against him in relation to two separate incidents of property damage. Mr Joshua attributes both incidents to his then age and problematic consumption of alcohol.

[34] Mr Joshua has acknowledged the adverse impact alcohol has had on his behaviour and has undertaken counselling. The events occurred more than 14 years ago.

[35] Mr Joshua has been convicted of one offence involving a breach of state or federal industrial laws. This occurred more than 5 years ago. There is no evidence that this conduct forms a pattern of disregard for state or federal laws. In his evidence in these proceedings Mr Joshua has demonstrated a clear understanding of key provisions of the FW Act relevant to his discharge of his duties as a permit holder. This knowledge should ensure that Mr Joshua is able to discharge his duties as an organiser in a lawful manner.

[36] I note that the Commissioner has chosen not to make submissions opposing the Application.

[37] I have considered the Permit Qualification Matters and have given weight to each.¹⁹ Taking into account the totality of the material and for the reasons already given, I am satisfied that Mr Joshua is a fit and proper person to hold an entry permit.

[38] Pursuant to section 512 of the FW Act, the application for a right of entry permit is granted. An order to this effect (PR709518) will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

< PR709519 >

 1   Affidavit of Peter David Joshua dated 14 June 2019 at [3]–[5].

 2   Ibid at [6]–[8].

 3 [2015] FCAFC 56.

 4   [2014] FWCFB 1973.

 5   Construction, Forestry, Mining and Energy Union – Construction and General Division, Victoria and Tasmanian Divisional Branch [2018] FWC 1325 at [27].

 6   Construction, Forestry, Mining and Energy Union – Construction and General Division [2018] FWC 3525 at [12].

 7   Construction, Forestry, Mining and Energy Union – Construction and General Division, Victoria and Tasmanian Divisional Branch [2018] FWC 1325 at [27] and Construction, Forestry, Mining, Maritime and Energy Union for a right of entry permit to be issued to Mr Michael Kenneth Robinson [2018] FWC 1777 at [39].

8 Australian Salaried Medical Officers Federation [2017] FWC 3282 at [11] citing Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2015] FWC 1522 at [32].

 9   Australian Salaried Medical Officers Federation [2017] FWC 3282 at [12].

 10   Attachment to Form F42 filed on 1 May 2019.

 11 Affidavit of Peter David Joshua dated 14 June 2019 at [16].

 12   Form F42 filed on 1 May 2019.

 13   Ibid.

 14   Affidavit of Peter David Joshua dated 14 June 2019 at [21]-[24].

 15   Form F42 filed on 1 May 2019.

 16 CFMMEU Submissions filed on 14 June 2019 at [17].

 17   Affidavit of Peter David Joshua dated 14 June 2019 at [25]-[35].

 18   Form F42 filed on 1 May 2019 and CFMMEU Submissions filed on 14 June 2019 at [21]-[26].

19 Australian Salaried Medical Officers Federation [2017] FWC 3282 at [12].