Construction, Forestry, Maritime, Mining and Energy Union re Craig Anthony Smith

[2022] FWC 2596

[2022] FWC 2596

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union re Craig Anthony Smith

(RE2022/952)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 6 OCTOBER 2022

Application for a right of entry permit for Craig Anthony Smith – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Smith is a fit and proper person to hold a conditional permit – permit issued.

1. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied under s.512 of the Fair Work Act 2009 (Act) for a right of entry permit to be issued to its Divisional Assistant Secretary and First Super Member & Employer Services Co-ordinator Contract Manager, Craig Anthony Smith.

Relevant statutory provisions and application

1. 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 some abstract 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.

1. 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]

1. 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]

1. 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.

1. 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.

1. I turn to consider the application.

Consideration

1. In support of its application the CFMMEU filed declarations by Mr Smith and Jennifer Kruschel, TCF National Secretary – Manufacturing Division (the Declarations).

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

1. According to the Declarations:

·   Mr Smith has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);[6]

·   Mr Smith 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;[7]

·   Neither Mr Smith 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);[8]

·   Mr Smith has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s.513(1)(e) of the Act);[9]

·   Mr Smith has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Smith 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);[10] and

·   Mr Smith 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).[11]

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

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

1. Except as indicated below, there are no other matters of which I am aware that I consider relevant to the determination of whether Mr Smith is a fit and proper person to hold an entry permit.

Appropriate training about the rights and responsibilities of a permit holder – s.513(1)(a)

1. Mr Smith has received 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 16 July 2022.[12] However, the course undertaken did not include training in relation to 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. Although the CFMMEU stated that Mr Smith’s position does 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 Smith 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 Smith has received appropriate training about the rights and responsibilities of a permit holder. This matter weighs against a conclusion that Mr Smith is a fit and proper person to hold an unconditional right of entry permit.

1. However as the training undertaken by Mr Smith 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), and since I am otherwise satisfied that Mr Smith is a fit an proper person to hold an entry permit, I proposed imposing 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 until appropriate training in relation to that subdivision has been completed and a copy of the training completion certificate has been filed in the Commission.

1. On 16 September 2022, the CFMMEU consented to my adopting this approach in relation to this application.

Conclusion

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

1.Mr Smith 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 certificate in the Commission.

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

DEPUTY PRESIDENT

[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 8 August 2022 at (b)

[7] Ibid at (c)

[8] Ibid at (d)

[9] Ibid at (e)

[10] Ibid at (f)

[11] Ibid at (g)

[12] Form F42, Declaration by proposed permit holder dated 8 August 2022 at (a) and ACTU certificate of participation dated 16 July 2022

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