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

[2023] FWC 1698

[2023] FWC 1698

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

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

(RE2023/548)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 14 JULY 2023

Application for a right of entry permit for Adam Edward Lain – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Lain is a fit and proper person to hold a permit – order revoking lost entry permit issued – 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, Adam Edward Lain. Mr Lain is employed by the CFMMEU as an Organiser.

1. Mr Lain was issued an entry permit on 18 May 2023.[1] The expiry date for this permit is 18 May 2026. In a Statutory Declaration dated 3 July 2023, Mr Lain declared that the permit the permit was received by the National Office of the CFMMEU on 23 May 2023 and was posted by express post on 24 May 2024 to Mr Lain’s home address however the permit cannot be found despite inquiring with Australia Post. Mr Lain further declared that if the entry permit arrives he will immediately return it to the Commission.

1. The Commission does not appear to have a general power under the Act to replace a lost or stolen entry permit. In order for Mr Lain to hold a valid entry permit and to be in a position to produce it when requested by an occupier to do so, the existing permit, which has been lost, must be revoked and an application for a new permit to be issued must be made. To issue a permit to Mr Lain, I need to be satisfied that he is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters. The applicable principles for determining right of entry permit applications under s 512 are well settled and not controversial. They need not be restated.

Consideration

1. In support of its application the CFMMEU filed declarations by Mr Lain and Mr Anthony Maher, General President of the CFMMEU Mining and Energy Division (the Declarations).

Permit qualification matters – s 513(1)(b), (c), (d) and (f)

1. According to the Declarations:

·   Mr Lain has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[2]

·   Mr Lain 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;[3]

·   Neither Mr Lain nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him (s 513(1)(d) of the Act);[4]

·   Mr Lain has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Lain held under a State or Territory industrial law or a State or Territory occupational health and safety law (s 513(1)(f)(i) of the Act);[5] and

·   Mr Lain 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).[6]

1. 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 Lain is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s 513(1)(a)

1. Mr Lain has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training about federal right of entry conducted on 14 April 2023. ^[7]   However, the course undertaken did not include training about the exercise of entry rights under Subdivision AA of Division 2 of Part 3-4 of the Act, which deals with entry to investigate suspected contraventions relating to TCF award workers. Whilst Mr Lain’s position may not require him to exercise entry rights under Sub-division AA of Division 2 of Part 3-4 of the Act, the rules of the CFMMEU since the amalgamation of the formerly registered Textile, Clothing and Footwear Union of Australia and the Maritime Union of Australia with the formerly named Construction, Forestry, Mining and Energy Union, cover TCF award workers.  As such, the grant of an unconditional entry permit to Mr Lain would permit him to exercise those rights without having undertaken relevant training. I am therefore not satisfied, given the breadth of the CFMMEU’s rules, that Mr Lain has received appropriate training about the rights and responsibilities of a permit holder. This matter weighs against a conclusion that Mr Lain is a fit and proper person to hold an unconditional right of entry permit.

1. However as the training undertaken by Mr Lain is otherwise appropriate training about the rights and responsibilities of a permit holder (that is a permit holder who would not exercise rights under Sub-division AA of Division 2 of Part 3-4 of the Act) the concern under s 513(a) can be resolved by the imposition of a condition on the entry permit when issued to the effect that the permit holder must not exercise rights under Sub-division AA of Division 2 of Part 3-4 of the Act unless appropriate training in relation to that subdivision has been completed and a copy of the training completion certificate has been filed in the Commission

Permit qualification matters – s 513(1)(e)

1. Mr Lain’s most recent entry permit issued (RE2023/366) contained the condition referred to above, that:

Adam Edward Lain must not exercise rights under Subdivision AA of Division 2 of Part 3-4 of the Act until he has completed appropriate training in relation to that subdivision and he has filed a copy of the training completion certification in the Fair Work Commission.[8]

1. I do not consider, given the circumstances, that this matter is be a barrier to finding that Mr Lain is a fit and proper person to hold a permit because for reasons set out earlier I propose to impose a condition substantially to the same effect.

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

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

Mr Lain’s existing permit

1. As mentioned earlier, the Commission does not have a general power under the Act to replace an entry permit that is lost or stolen. A revocation of the existing permit is required and a new permit may be issued subject to the requirements in s 512 of the Act.

1. The relevant power to revoke is found in s 603 of the Act which relevantly provides:

“603 Varying and revoking the FWC’s decisions

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note:       If the FWC makes a decision to make an instrument, the FWC
                may vary or revoke the instrument under this subsection (see

subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

…”

1. The reference to “decision” in s 603 of the Act carries the meaning ascribed to it by s 598. Subsection 603(1) confers a discretion to vary or revoke ‘a decision of the FWC that is made under [the] Act’ (other than a decision referred to in s 603(3)). Section 603(3) expressly excludes certain classes of decisions from the scope of the general power to vary or revoke in s 603(1).

1. A decision of the Commission to issue an entry permit is a decision which falls within the scope of s 603(1) in that it is a decision made by the Commission under the Act that does not fall within the scope of the exclusions in s 603(3).

1. In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Mr Lain in matter RE2023/366.

Conclusion

1. Pursuant to s 603 of the Act, the entry permit RE2023/366 issued to Mr Lain by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR764199.

1. Taking into account the permit qualification matters, for the reasons earlier stated I am satisfied that Adam Edward Lain is a fit and proper person to hold an entry permit with the following condition:

1.   Mr Lain must not exercise rights under Subdivision AA of Division 2 of Part 3-4 of the Act unless he has completed appropriate training in relation to that subdivision and he has filed a copy of the training completion certificate in the Commission.

1. The application by the CFMMEU for an entry permit to be issued to Mr Lain is granted. A permit with the abovementioned condition will be separately issued.

DEPUTY PRESIDENT

[1] RE2023/366

[2] Ibid at (b)

[3] Ibid at (c)

[4] Ibid at (d)

[5] Ibid at (f)

[6] Ibid at (g)

[7] Form F42, Declaration by proposed permit holder dated 3 July 2023 at (a) and CFMEU Mining & Energy Division Approved Right of Entry Training Statement of Attainment dated 14 April 2023

[8] Ibid at (e)

Printed by authority of the Commonwealth Government Printer

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