Construction, Forestry, Maritime, Mining and Energy Union - Manufacturing Division

[2021] FWC 1917

[2021] FWC 1917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union - Manufacturing Division
(RE2021/279)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 16 APRIL 2021

Application for a right of entry permit for David John Kirner – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Kirner is a fit and proper person to hold a permit – permit issued.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, David John Kirner. Mr Kirner is employed by the CFMMEU as an Organiser.

[2] Pursuant to s.112 of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) the Australian Building and Construction Commissioner was given notice of the application. The Commissioner has not sought, pursuant to s.110 of the BCIIP Act, to intervene or to make a submission in relation to this application. In the circumstances, I have decided to determine the application on the papers without holding a hearing.

Relevant statutory provisions and application

[3] The applicable principles for determining right of entry permit applications under s.512 are well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder the subject of an application for a permit is assessed taking into account the permit qualification matters set out in s.513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in someabstract sense. The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit, and to exercise the powers, functions and responsibilities attached to holding a permit.¹ The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.

[4] The permit qualification matters contained in s.513(1) are mandatory considerations which must be taken into account and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others,² that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision-making process,³ which must be evaluated and accorded appropriate weight.⁴

[5] The weight given to a particular matter is ultimately a matter for the Commission, however in ascribing weight to each matter care should be taken to ensure that a relevant factor of great importance is given adequate weight and that excessive weight to a relevant factor of no great importance is not ascribed.⁵

[6] Having regard to the structure and content of s.513, in deciding whether a proposed permit holder is a fit and proper person to hold an entry permit, all of the permit qualification matters identified in s.513(1) of the Act must be taken into account. The absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment, just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight.

[7] Section 513(1)(g) of the Act requires the Commission to take into account any other matter it considers relevant. A matter will be relevant if it can rationally affect the assessment of whether the proposed permit holder is a fit and proper person to hold an entry permit. Matters that may be relevant and therefore fall to be considered under s.513(1)(g) are matters that relate to the personal characteristics of the proposed permit holder and are pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.

[8] I turn to consider the application.

Consideration

[9] In support of its application the CFMMEU filed declarations by Mr Kirner and Ms Jennifer Kruschel, Branch Secretary (the Declarations).

Permit qualification matters – s.513(1)(a), (b) and (f)

[10] According to the Declarations:

•  Mr Kirner has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 15 March 2021 (s.513(1)(a) of the Act));⁶ 

•  Mr Kirner has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);⁷

•  Mr Kirner has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act;⁸

•  Mr Kirner has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(ii) of the Act).⁹

[11] I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. These matters weigh in favour of a conclusion that Mr Kirner is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s.513(1)(c) and (d)

[12] The declarations disclose that Mr Kirner and the CFMMEU were ordered to pay penalties under the Act in relation to action taken by Mr Kirner (s.513(1)(c)) and that Mr Kirner’s permit was subsequently suspended (s.513(1)(d)). 10

[13] On 20 November 2015, Justice White of the Federal Court of Australia in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union 11 (Liability Judgement) found that Mr Kirner contravened s.500 of the Act on 22 November 2013 by acting in an improper manner while seeking to exercise rights in accordance with Part 3–4 of the Act. On 22 April 2016, Justice White ordered Mr Kirner to pay a pecuniary penalty of $70012 and the CFMEU to pay a pecuniary penalty of $18,00013 in relation to this contravention.

[14] Mr Kirner’s contravening conduct was then considered by Commissioner Saunders in Fair Work Commission v David Kirner, resulting in a suspension of Mr Kirner’s entry permit for a period of three months.

[15] I considered these matters in a previous decision in relation to granting Mr Kirner a right of entry permit issued on 11 April 2018 (April 2018 Decision).  14 I did not then assess them as weighing so heavily as to determine Mr Kirner was not a fit and proper person to hold an entry permit.15

[16] While these matters are plainly relevant, I am satisfied that they are not so significant as to weigh against concluding Mr Kirner is a fit and proper person to hold an entry permit. The conduct occurred a considerable time ago and there has been no reoccurrence of this conduct.

Permit qualification matters – s.513(1)(g)

[17] On 11 November 2013, Senior Deputy President O’Callaghan instituted proceedings of his own motion under s.508 of the Act (RE2013/1710). The proceedings arose out of an application by Lendlease for orders pursuant to s.418 of the Act. In his decision of 23 December 2013, Senior Deputy President O’Callaghan found that officials of the CFMEU misused their entry rights with respect to sites occupied by Lendlease and set down further proceedings regarding the action to be taken under s. 508(2) of the Act. 16 A Full Bench of the Commission subsequently quashed the above decision on 24 April 201417 however, the Full Bench made its own findings that misuse of entry rights had occurred and remitted the matter back to the Senior Deputy President to determine what action should be taken under s.508(2) of the Act. Beyond Mr Kirner being present when a particular instance of misuse occurred on 30 October 2013, no findings regarding the particular conduct of Mr Kirner were made.18

[18] In Orders issued on 13 June 2014 19 Senior Deputy President O’Callaghan essentially suspended all entry rights exercised by all officials of the CFMEU with respect to sites controlled by Lendlease until proof of further right of entry training was filed with respect to particular officials. He made further Orders with respect to further particular officials of the CFMEU not including Mr Kirner; and proof of further training undertaken by Mr Kirner was subsequently provided and, in further Orders issued on 14 July 201420, the Senior Deputy President revoked the suspension against him and several other officials of the CFMEU.

[19] In the April 2018 Decision, I concluded that the conduct disclosed in the proceedings before Deputy President O’Callaghan should not be accorded any particular weight and that the matters had been appropriately dealt with. I see no reason to depart from this conclusion.

[20] There are no other matters of which I am aware that I consider relevant to the determination of whether Mr Kirner is a fit and proper person to hold an entry permit.

Conclusion

[21] Taking into account the permit qualification matters, for the reasons earlier stated I am satisfied that Mr David John Kirner is a fit and proper person to hold an entry permit. The application by the CFMMEU for an entry permit to be issued to Mr Kirner is granted.

[22] A permit will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR728470>

1 Maritime Union of Australia [2014] FWCFB 1973 at [23]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, [2015] FWC 1522 at [32]

² [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

³ Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

⁴ Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184; (cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74 at [103])

5 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15], p 41

6 Form F42, Declaration by proposed permit holder dated 16 March 2021 at (a) and Australian Trade Union Institute Statement of Completion dated 15 March 2021

7 Ibid at (b)

8 Ibid at (c)

9 Ibid at (g)

 10   Ibid at (d) and (e)

 11 [2015] FCA 1287.

 12   Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 414 at [47] (Penalty Judgement).

 13   Ibid at [57]

 14   [2018] FWC 2041 at paragraphs [10] to [17] and [27].

 15   [2018] FWC 2041 at paragraphs [10] to [17] and [27].

 16   [2013] FWC 10168

 17   [2014] FWCFB 2709

 18 See paragraphs [200] - [204] and endnote 170 of [2014] FWCFB 2709.

 19   PR551967

 20   PR553054