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

[2018] FWC 7586

[2018] FWC 7586

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
(RE2018/1163)

DEPUTY PRESIDENT BINET PERTH, 13 DECEMBER 2018

Application for right of entry permit for Stephen Barry Parker – application granted.

[1] On 12 October 2018, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) filed an 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 (Permit Application) for Mr Stephen Barry Parker (Mr Parker).

[2] On 7 November 2018, 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.

Relevant Statutory Provisions

[3] 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

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

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

[4] In Maritime Union of Australia v Fair Work Commission (MUA v FWC) 1, 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.”

[5] 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.”

[6] In The Maritime Union of Australia 2 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”.

[7] 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.”

[8] The principles applicable to the assessment of whether a proposed permit holder is a fit and proper person to hold an entry permit can be summarised from the relevant authorities as follows:³

•  The question of 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.

•  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.

•  The permit qualification matters must be considered in the context of whether the proposed permit holder is a fit and proper person to hold an entry permit, not whether the proposed permit holder is a fit and proper person per se.

•  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.

•  For a matter to be relevant for the purposes of section 513(1)(g), the matter must relate to the personal characteristics of the proposed permit holder and be pertinent to the discharge of the functions and the exercise of the rights associated with holding a permit.

Consideration

[9] 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. 4

[10] In relation to the Permit Qualification Matter set out in section 512(1)(a) of the FW Act, Mr Parker produced evidence that he completed the Australian Council of Trade Unions Right of Entry Training Course on 24 September 2018. 5 I am satisfied that Mr Parker has completed training about the rights and responsibilities of a permit holder in accordance with section 512(1)(a) of the FW Act.

[11] In relation to the Permit Qualification Matter set out in section 512(1)(b), Mr Parker has declared that he has not been convicted of any offence against an industrial law. There is no evidence before me that Mr Parker has been convicted of an offence against an industrial law.

[12] In relation to the Permit Qualification Matter set out in section 512(1)(c), Mr Parker declared that the only 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 that he has been convicted of, are the following offences for which he received the penalties set out below:

Date of Conviction	Offence	Penalty
30 April 2010	Give false details to police contrary to section 16(8) of the Criminal Investigation (Identifying People) Act 2002 (WA).	Spent conviction Fine: $300
30 April 2009	Disorderly behaviour in public contrary to section 74A(2)(a) of the Criminal Code (WA).	Spent conviction Fine: $300
21 November 2012	Stealing contrary to section 378 of the Criminal Code (WA).	Fine:$300 Compensation $8.68

[13] The offences of which Mr Parker was convicted on 30 April 2010 arise from an incident which occurred on 5 November 2009. Mr Parker described the incident as follows:

“The incident took place at Warwick train station in Perth, Western Australia on 5 November 2009. I had been out drinking in the city with friends and was returning home by train when I was approached by a transit officer at the station. I had been intoxicated at the time and had consumed a lot of alcohol after I broke up with a girlfriend.

The transit officer asked for my name and I responded that my name was “Donald Duck”. The transit officer then asked for my address and gave him a false address.

The transit officer then asked to see my train ticket. I responded by twisting my ticket in front of the officer so he could not see it.

I pleaded guilty to the charges as soon as I could. At sentencing, the Magistrate took into account the minor nature of the offences, my previous good character and that I was unlikely to commit a similar offence again. I was granted a spent conviction and ordered to pay a fine of $300.00, plus $119.20 in court costs, for each offence.”

[14] At the time of sentencing, Magistrate Flynn made a Spent Conviction Order (SPO) pursuant to section 45 of the Sentencing Act 1995 (WA)(Sentencing Act). Pursuant to section 45(1) of the Sentencing Act, a SPO can only be made if the court considers the offender is unlikely to commit such an offence again and that the offence is trivial and/or the previous good character of the offender is such that the offender should be relieved of the adverse effect that the conviction might have on the offender. 6

[15] The offence of which Mr Parker was convicted on 21 November 2012 occurred on 7 November 2012. Mr Parker described the incident as follows:

“The incident had occurred on 7 November 2012, when I went to the Beaumaris Shopping Centre IGA in Perth. I had been intoxicated and hungry but did not have any money on me. I took a frozen packaged lasagne from the freezers and tried to steal it from the shop. I was stopped by a security guard leaving the shop and I was charged with stealing.

Again, I pleaded guilty to the charges as soon as I could. At sentencing, the Magistrate took into account that I was not likely to reoffend. I was granted a conditional release order for 6 months and ordered to pay a fine of $300.00, plus $8.68 in compensation and $66.00 in court costs.”

[16] At the time of sentencing, Magistrate Gluestein made a Conditional Release Order pursuant to section 47 of the Sentencing Act (CRO). A CRO can only be imposed if the relevant magistrate is satisfied that the offender will not reoffend during the term of the CRO.

[17] Mr Parker says that both of these incidents occurred when he was intoxicated. He says he has since acknowledged the undesirable effect consuming alcohol has on his behaviour and that he has been sober for over four years now. He says he has learned from his mistakes and is adamant that he will not reoffend. 7

[18] In relation to the Permit Qualification Matter set out in section 512(1)(d), Mr Parker has declared that he has never been ordered to pay a penalty under the FW Act or any other industrial law in relation to action taken by him. 8 There is no evidence before me that he has been ordered to pay a penalty under the FW Act or any other industrial law in relation to action taken by him.

[19] In relation to the Permit Qualification Matter set out in section 512(1)(e), Mr Parker 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. 9

[20] In relation to the Permit Qualification Matter set out in section 512(1)(f), Mr Parker 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.

[21] With respect to the Permit Qualification Matter set out in section 512(1)(g), Mr Parker says that if he is not granted an entry permit he will hampered in his capacity to perform his duties as an Organiser ensuring workers receive their correct entitlements and work in a safe environment, a role which Mr Parker says he is passionate about. 10

Conclusion

[22] Mr Parker has had three convictions recorded against him in relation to two separate incidents three years apart. On both occasions he was charged, Mr Parker pleaded guilty as soon as he could. The penalties imposed upon him indicate that the relevant magistrate was satisfied that Mr Parker was otherwise of good character and unlikely to reoffend. 11

[23] Both incidents occurred when Mr Parker was intoxicated. Mr Parker has acknowledged the adverse impact alcohol has on his behaviour and says that he has been sober for over four years. 12 Mr Parker has not been changed or convicted of any offences in the last six years. He has never been convicted of offences involving breaches of state or federal industrial laws.

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

[25] I have considered the Permit Qualification Matters and have given weight to each.¹³ Taking into account the totality of the material and for the reasons already given, I am satisfied that Mr Parker is a fit and proper person to hold an entry permit subject to the conditions outlined above.

[26] Pursuant to section 512 of the FW Act, the application for a right of entry permit is granted. An order to this effect (PR703139) will be issued separately.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 27 November 2018.

Printed by authority of the Commonwealth Government Printer

<PR703138>

 1 [2015] FCAFC 56.

 2   [2014] FWCFB 1973.

3 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].

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

 5   Attachment to Form F42 filed on 12 October 2018.

 6   CFMMEU submissions filed on 27 November 2018 at [16]–[17].

 7   Affidavit of Stephen Barry Parker dated 27 November 2018 at [15]–[16].

 8   Form F42 filed on 12 October 2018.

 9   Ibid.

 10 Affidavit of Stephen Barry Parker dated 27 November 2018 at [18].

 11   CFMMEU submissions filed on 27 November 2018 at [16]–[17] and [27]–[30].

 12 Affidavit of Stephen Barry Parker dated 27 November 2018 at [16].

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