Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
[2023] FWC 782
•4 MAY 2023
| [2023] FWC 782 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
(RE2023/190)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 4 MAY 2023 |
Application for a right of entry permit for Phillip Shane Kennedy – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Kennedy is a fit and proper person to hold a permit – order revoking lost entry permit issued – permit with conditions to issue.
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, Phillip Shane Kennedy. Mr Kennedy is employed by the CFMMEU as an Organiser.
Mr Kennedy was issued an entry permit on 23 March 2022.[1] The expiry date for this permit is 23 May 2025. In a Statutory Declaration dated 7 March 2023, Mr Kennedy declared that on 25 February 2023, he left his entry permit in his motor vehicle, the vehicle was stolen and he reported the theft to police (report No. 260223060188859).
The Commission does not appear to have a general power under the Act to replace a lost or stolen entry permit. For Mr Kennedy to hold a valid entry permit and to be able 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 Kennedy, 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
In support of its application the CFMMEU filed a declaration by Mr Kennedy and Mr Warren Smith, CFMMEU Divisional Deputy National Secretary (the Declarations).
Permit qualification matters – s 513(1)(b), (c) and (d)
According to the Declarations:
· Mr Kennedy has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[2]
· Mr Kennedy 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 Kennedy 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]
Permit qualification matters – s 513(1)(a)
Mr Kennedy 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 12 April 2022.[5] 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. Whilst Mr Kennedy’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 Kennedy 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 Kennedy has received appropriate training about the rights and responsibilities of a permit holder. This matter weighs against a conclusion that Mr Kennedy is a fit and proper person to hold an unconditional right of entry permit.
However as the training undertaken by Mr Kennedy 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
On 27 March 2023, the CFMMEU consented to my adopting this approach in relation to this application.
Permit qualification matters – s 513(1)(e)
A condition was imposed on a previous permit held by Mr Kennedy as per an order of Senior Deputy President Lacy on 19 November 2008 which relevantly stated:
“The following condition is imposed on all current permits and all permits to be issued in the next 2 years in respect of the Construction and General Division, Western Australia Divisional Branch of the CFMEU:
‘The permit holder is not permitted to enter or remain on premises being construction sites in the company of, or in concert with, Joseph McDonald except where McDonald has been invited in advance on to those premises by an owner and has complied with the requirements of the direction in order 5.’”
The period in which the condition applied has long ago ceased. There is no other factor suggesting that some material weight ought to be given to the imposition of a condition almost 15 years ago. I do not consider this matter to be significant.
Permit qualification matters – s 513(1)(f)
An order was made by Justice Barker on 30 November 2015[6] restraining Mr Kennedy and others, until 31 December 2017 from:
a)organising or engaging in any industrial action at or in the vicinity of the New Children’s Hospital on the corner of Winthrop Ave and Monash Ave in Perth (Site);
b)doing any act which in any way obstructs or hinder or interferes with the passage of any person, whether on foot or in a vehicle proceeding to or from the Site;
c)abusing, threatening, besetting or harassing by words or gestures or physically harming, or attempting to physically harm, any persons approaching, leaving or on the Site;
d)standing in line or in any other formation on any roadway, lane or footpath in the path of vehicular or pedestrian traffic approaching or leaving the Site;
e)aiding, abetting, counselling, procuring or inducing, or being in any way by act or omission directly or
f)indirectly, knowingly concerned in or party to, any conduct that is restrained by paragraphs (a)-(d) above.
No penalties were imposed in relation to this matter and the order has lapsed. I do not consider this to be a material matter, nor do I consider the injunction issued to engaged with the permit qualification matters in s 513(1)(f) of the Act.
Permit qualification matters – s 513(1)(g)
Except as indicated above, there are no other matters of which I am aware that I consider relevant to the determination of whether Mr Kennedy is a fit and proper person to hold an entry permit.
For the reasons given above, taking into account the permit qualification matters and subject to an imposition pursuant to s 515 of the Act of the conditions set out below, I am satisfied that Mr Kennedy is a fit and proper person to hold an entry permit.
Mr Kennedy’s existing permit
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.
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 (seesubsection 598(2)).
(2) The FWC may vary or revoke a decision under this section:
(a) on its own initiative; or
…”
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).
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).
In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Mr Kennedy in matter RE2022/306.
Conclusion
Pursuant to s 603 of the Act, the entry permit RE2022/306 issued to Mr Kennedy by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR760774.
Taking into account the permit qualification matters, for the reasons earlier stated I am satisfied that Mr Kennedy is a fit and proper person to hold an entry permit with the following condition:
Mr Kennedy 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.
The application by the CFMMEU for an entry permit to be issued to Mr Kennedy is granted. A permit will be separately issued.
DEPUTY PRESIDENT
[1] RE2022/306
[2] Ibid at (b)
[3] Ibid at (c)
[4] Ibid at (d)
[5] Form F42, Declaration by proposed permit holder dated 2 March 2023
[6] WAD133/2013
Printed by authority of the Commonwealth Government Printer
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