Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division - Western Australian Branch

[2023] FWC 1014

[2023] FWC 1014

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512 - Application for a right of entry permit

Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division - Western Australian Branch

(RE2023/139)

DEPUTY PRESIDENT BINET PERTH, 29 JUNE 2023

Brendon Christopher Brolly

1. On 21 February 2023 the Construction, Forestry, Mining and Energy Union - Construction and General Division, Western Australian Divisional Branch (CFMMEU) filed an application (Application) pursuant to section 512 of the Fair Work Act 2009 (Cth) (FW Act) for a right of entry permit for Mr Brendon Christopher Brolly (Mr Brolly). 

1. The Application was allocated to my Chambers for determination on 23 March 2023.

1. On 29 March 2023 the Fair Work Ombudsman (FWO) was invited to indicate if it wished to make submissions in respect of, the Application pursuant to section 590 of the FW Act.

1. On 3 April 2023 notification was received from the Fair Work Ombudsman (FWO) indicating that it did not wish to make written submissions or intervene in proceedings in respect of the Application but did wish to be served any materials filed in relation to the Application. 

1. Directions were issued on 4 April 2023 (Directions) requiring the CFMMEU to file submissions in relation to the Application and any additional evidence upon which it relied by 4pm, Thursday 13 April 2023. The Directions invited the FWO to file any materials in reply by 4pm, Thursday 20 April 2023.

1. The Directions specified if either the CFMMEU or FWO sought to make oral submissions in respect of the Application, they should advise the Chambers by 4pm, Thursday 27 April 2023. The Directions stated that if neither the CFMMEU nor FWO wished to make oral submissions in respect of the Application, a conclusion may be made on the basis of the written materials filed in accordance with the Amended Directions.

1. On 13 April 2023 the CFMMEU filed their materials pursuant to the Directions.  These materials included:

a.An outline of submissions;

b.A witness statement of Mr Brendan Brolly;

1. On 28 April 2023, the FWO advised that it would not be filing any materials in relation to the Application. 

1. The FWO has not sought to be heard orally in relation to the Application. The evidence adduced by the CFMMEU in support of the Application for an entry permit for Mr Margjini is unchallenged and not inherently incredible.  There are no other circumstances which suggest the evidence adduced by the CFMMEU in support of the Application should be rejected.  I therefore accept the evidence adduced by the CFMMEU.[1]

1. In reaching my decision, I have considered all the submissions made and the evidence tendered, even if not expressly referred to in these reasons for decision.

Background

1. Mr Brolly is currently 40 years old and employed as an organiser for the WA Divisional Branch of the Maritime Union of Australia.

1. Between January 2012 and January 2023, he was employed in the maritime industry in which regular drug and alcohol testing is commonplace. He says that during this time he undertook numerous drug and alcohol tests and that his results always complied with the relevant workplace policies and requirements.[2]

1. Since 2013, Mr Brolly has held a valid Maritime Security Identification Card (MSIC) pursuant to the Maritime Transport Security Act 2003 clearing him to work unescorted or unmonitored in a maritime security zone. He has not had a MSIC removed nor had any conditions imposed on a MISC issued to him.[3]

1. Between 2003 and 2022 he has been convicted of the following offences: disorderly behaviour, drink driving, assault, trespass and driving without a licence.[4]

1. Mr Brolly says that each of these convictions arose from events which occurred when he was inebriated. He says that these behaviours are out of character for him.  Mr Brolly acknowledges that his conduct is unacceptable.  He has sought medical treatment for his behaviour and is participating in ongoing counselling sessions. [5]

Consideration

1. 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.”

1. In Maritime Union of Australia v Fair Work Commission[6], the Full Court of the Federal Court (North, Flick and Bromberg JJ) observed:

“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] FCAFC 85; (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] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.”[7]

1. Section 512 of 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.”

1. In The Maritime Union of Australia[8] a Full Bench 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:

“…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”.

The permit qualification matters in s.513, which must be taken into account in deciding whether an official is a fit and proper person, must therefore be considered and applied in a way that assists in answering the question posed by s.512, namely whether the official “is a fit and proper person to hold the entry permit”. The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se. Rather the permit qualification matters must be taken into account to decide whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.
…

Put simply, the determination of whether an official is a fit and proper person to hold an entry permit involves an assessment of the effect that the existence of any of the matters in s.513, described as the “permit qualification matters”, has on the suitability of the official to hold an entry permit, with all of its attendant rights, conditions, limitations, and responsibilities. [FOOTNOTES OMMITTED]’

[9]

1. 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 (Permit 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.”

1. The Permit Qualification Matters delineated by section 513(1) of the FW Act are mandatory considerations. 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.[10]

1. Whilst the weight to be accorded to any of the Permit Qualification Matters is  ultimately matter for the FWC, a permit qualification matter will not be ‘taken into account’ by being discarded and determined to be irrelevant. It will, for instance, be just as relevant that the official has never been convicted of an offence against industrial law or has completed appropriate training, as it is that pecuniary penalties have been imposed on the official or another person as a result of actions taken by the official.[11]

1. 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.[12]

1. 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.[13]

1. 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.[14]

1. The temporal focus is on the present fitness and propriety of a permit holder to hold an entry permit. Whilst the past conduct of a permit holder may inform the assessment of their present fitness and propriety, the FWC’s jurisdiction under section 512 is not punitive and is directed to whether or not at the time the application is determined it is satisfied that the official is a ‘fit and proper person’ to hold an entry permit.[15]

1. If the FWC identifies deficiencies with an official’s fitness and propriety to hold a permit, it must consider whether these can be addressed by the imposition of appropriate conditions.  Conditions can only be imposed if they are capable of assisting the FWC to achieve the state of satisfaction that the official is a fit and proper person to hold an entry permit.[16]

Permit Qualification Matter One – Appropriate training (s. 513(1)(a))

1. In relation to the Permit Qualification Matter set out in section 513(1)(a) of the FW Act, Mr Brolly produced evidence that he successfully completed the Australian Council of Trade Unions Federal Right of Entry Training Course on 22 December 2022.[17] This has previously been held to constitute ‘appropriate training’ for the purposes of section 513(1)(a) of the FW Act.[18]

1. Prior to the Application being allocated to me for determination, the CFMMEU were advised by the FWC that there was no evidence before the FWC to suggest that Mr Brolly had completed training in relation to the Textile, Clothing and Footwear (TCF) right of entry provisions under Subdivision AA of Division 2 of Part 3-4 of the FW Act.

1. The FWC put the CFMMEU on notice, that a condition may be imposed that the permit holder must not exercise any entry rights under the TCF right of entry provisions, until evidence of completion of the relevant training has been filed with the FWC.

1. I accept, that Mr Brolly has completed appropriate training about the rights and responsibilities of a permit holder in accordance with section 513(1)(a), with the exception of the training in relation to the TCF right of entry provisions. This weighs in favour of his fitness and proprietary to hold an entry permit.

Permit Qualification Matter Two – Offences against industrial laws (s. 513(1)(b))

1. In relation to the Permit Qualification Matter set out in section 513(1)(b), Mr Brolly has declared that he has never been convicted of an offence against an industrial law.[19] There is no evidence before me that Mr Brolly has been convicted of an offence against an industrial law.[20]

1. It is relevant to note that Mr Brolly:[21]

a.Has previously been employed in the maritime industry;

b.Has held a Maritime Security Identification Card (MSIC) since 2013 that has been renewed every 4 years, inclusive of routine background checks.

c.Has never had his MSIC revoked, suspended or any conditions imposed.

d.Was subject to multiple drug and alcohol tests during the course of his employment in the maritime industry and did not fail any.

1. This weighs in favour of his fitness and proprietary to hold an entry permit.

Permit Qualification Matter Three – Criminal Offences (s. 513(1)(c))

1. In relation to the Permit Qualification Matter set out in section 513(1)(c), Mr Brolly has declared that he has been convicted of 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.[22]

1. All of the convictions arose from events occurring when Mr Brolly was inebriated. In 2004 and 2018, Mr Brolly was convicted of assault whilst under the influence of alcohol.  In 2011 Mr Brolly was convicted of trespassing in Crown Casino whilst under the influence of alcohol.  For these offences he was fined between $400 and $1200.[23]

1. In Re Health Services Union – Queensland Branch[24] Senior Deputy President Richards considered the weight that should be given to prior convictions and said as follows:

“Prior convictions should be weighed carefully in respect of considerations under
s.512 of the Act as the statutory power invests in a permit holder the right to enter private premises and inspect the private information of other persons, amongst other things. Persons convicted of fraud or deception, for example, may be ill-suited to managing privacy risks and private records. Others with convictions for violence or who have been subject to related court orders may be presumed to lack the impulse controls and reasonable civility that are features of statutory right of entry power.

Past conduct, then, may be a relevant consideration for purposes of the discretionary finding as to whether a person seeking a right of entry permit is a fit and proper person under s.512 of the  Act. Much will depend, however, on the circumstances in each case”

1. The CFMMEU pointed out that the relevant offences occurred more than five years ago and did not occur in the workplace.

1. The CFMMEU submitted that it is relevant that each of the offences for which Mr Brolly has been convicted occurred when he was inebriated.  They say that it can not be presumed from his conviction that he lacks the necessary impulse control and reasonable civility rather that the trigger for his criminal conduct is the misuse of alcohol in his leisure time.[25]

1. In support of this, the CFMMEU pointed out that since 2013 Mr Brolly has continuously held a Maritime Security Identification Card (MSIC) issued to him under the Maritime Transport Security Act 2003.  To maintain its currency, all MSICs are subjected to renewals every 4 years with background checks conducted every 2 years.  Mr Brolly has not breached the terms of his MSIC and continues to hold a valid MSIC which allows him to work unescorted and unmonitored in a maritime security zone.  Mr Brolly has held an MSIC that has never been revoked, suspended or made subject to conditions.[26]

1. Acknowledging that alcohol played a key role in the conduct leading up to the convictions, Mr Brolly has sought medical treatment and is accessing ongoing counselling sessions to ensure further convictions are prevented. [27]

1. These convictions do not weigh in favour of Mr Brolly’s fitness and proprietary to hold an entry permit.

Permit Qualification Matter Four – Penalties Imposed (s. 513(1)(d))

1. In relation to the Permit Qualification Matter set out in section 513(1)(d) of the FW Act, Mr Brolly has declared that neither he nor the CFMMEU has been ordered to pay a penalty under the FW Act or any other industrial law in relation to action taken by him. There is no evidence before me to suggest the contrary.[28]

1. This weights in favour of a finding that Mr Brolly is a fit and proper person to hold a right of entry permit.

Permit Qualification Matter Five – Federal permits (s. 513(1)(c))

1. In relation to the Permit Qualification Matter set out in section 513(1)(c) of the FW Act, Mr Brolly 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.[29]

1. There is no evidence before me that Mr Brolly has had an entry permit under the FW Act, or under a similar law of the Commonwealth, revoked, suspended or made subject to any other conditions.

1. This weights in favour of his fitness and proprietary to hold an entry permit.

Permit Qualification Matter Six – State Permits (s. 513(1)(f))

1. In relation to the Permit Qualification Matter set out in section 513(1)(f) of the FW Act, Mr Brolly has declared that no right of entry for industrial or occupational health and safety purposes that he has held a under a State or Territory industrial or occupational health and safety law has been cancelled, suspended or had conditions imposed.[30]

1. There is no evidence before me that Mr Brolly has had a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial or occupational health and safety law cancelled, suspended or had conditions imposed. 

1. This weighs in favour of his fitness and proprietary to hold an entry permit.

Permit Qualification Matter Seven – Other relevant matters (s. 513(1)(g))

1. Section 513(1)(g) of the FW Act requires the FWC 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.[31]

1. Between 2003 and 2022 Mr Brolly was convicted of a series of alcohol related offences in addition to those considered in relation to section 513(1)(c) including on three occasions behaving in a disorderly manner in a public place, on two occasion driving with a suspended licence under the influence of alcohol, on two occasions drink driving and on one occasion failing to comply with a move on order. He was fined between $200 to $700 for each of these offences.[32]

1. These convictions weigh against of Mr Brolly’s fitness and proprietary to hold an entry permit.

1. The CFMMEU submitted the following factors are relevant to the FWC’s assessment under section 513(1)(g) as to Mr Brolly’s current fitness and propriety to hold an entry permit:[33]

1. A significant proportion of the convictions have occurred more than 10 years ago and, of the remainder, those convictions relevant to consideration pursuant to s513(1)(c) are nearly five years old;
2. Notwithstanding the number of convictions, the penalties issued by the Court indicate those convictions have been at the lesser end of the scale of seriousness; and
3. All the convictions involve consumption of alcohol as a material factor giving rise to the circumstances of the conviction.

1. The CFMMEU submitted that Mr Brolly acknowledges the seriousness of his past conduct, set out with respect to s 513(1)(c) and (g) and that they ought to be weighed against Mr Brolly by the Commission when determining whether to grant Mr Brolly an entry permit.

Conclusion

1. 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.

1. Mr Brolly has a number of criminal convictions which weigh against a finding that he is a fit and proper person to hold a permit. 

1. A significant proportion of the convictions have occurred more than 10 years ago and, of the remainder, those convictions relevant to consideration pursuant to s513(1)(c) are nearly five years old.

1. Notwithstanding the number of convictions, the penalties issued by the Court indicate the offences have been at the lesser end of the scale of seriousness.  None attracted fines exceeding $1200 or prison terms.

1. The offences all occurred while Mr Brolly was inebriated by alcohol.  Critically none occurred while he was in the workplace and his evidence is that he has never breached a drug and alcohol workplace policy notwithstanding that he has been employed in workplaces where random drug and alcohol testing occurs on a regular basis for the last ten years.

1. Acknowledging that alcohol played a key role in the conduct leading up to the convictions, Mr Brolly has sought medical treatment and is accessing ongoing counselling sessions to better manage his alcohol consumption outside the workplace. 

1. Mr Brolly has conducted himself in a courteous and respectful manner in all proceedings in which he has been involved before me.

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

1. Brendon Brolly 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. An order[34] to this effect will be issued separately.

DEPUTY PRESIDENT BINET

[1] Ashby v Slipper [2014] FCAFC 15 at [77].

[2] Witness statement of Mr Brendon Christopher Brolly dated 13 April 2023 at [22] – [23].

[3] Witness statement of Mr Brendon Christopher Brolly dated 13 April 2023 at [24]-[26].

[4] Form F42 – Application for an entry permit dated 21 February 2023.

[5] Witness statement of Mr Brendon Christopher Brolly dated 13 April 2023 at [32]-[33].

[6] [2015] FCAFC 56.

[7] Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 at [15].

[8] [2014] FWCFB 1973.

[9] The Maritime Union of Australia [2014] FWCFB 1973 at [23]

[10] Construction, Forestry, Mining and Energy Union – Construction and General Division, Victoria and Tasmanian Divisional Branch [2018] FWC 1325 at [27]; Construction, Forestry, Mining, Maritime and Energy Union for a right of entry permit to be issued to Mr Michael Kenneth Robinson [2018] FWC 1777 at [39].

[11] CFMEU—Construction and General Division [2023] FWC 582 at [5]; Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch [2023] FWC 287 at [7].

[12] Re 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].

[13] Re 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]. CFMMEU, Construction and General Division, Victoria-Tasmania Divisional Branch (Re Mark Travers) [2023] FWC 410 at [3].

[14] Ibid.

[15] CFMEU—Construction and General Division [2023] FWC 582 at [2].

[16] Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15; Application by Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, Australian Capital Territory Divisional Branch [2019] FWC 4087 at [59].

[17] Applicant’s Outline of Submissions dated 13 April 2023 at [16(a)], Certificate of Completion dated 22 December 2022.

[18] Construction, Forestry, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch [2018] FWC 379 at [16]-[18].

[19] Form 42 – Application for an entry permit dated 21 February 2023; Applicant’s Outline of Submissions dated 13 April 2023 at [16(b)].

[20] Form 42 – Application for an entry permit dated 21 February 2023; Applicant’s Outline of Submissions dated 13 April 2023 at [16(b)].

[21] Witness Statement of Brendon Brolly dated 17 February 2023.

[22] Form 42 – Application for an entry permit dated 21 February 2023.

[23] Form 42 – Application for an entry permit dated 21 February 2023, National Police Check dated 18 January 2023. 

[24] [2015] FWC 18 at [22-23]

[25] Form F42 – Application for an entry permit dated 21 February 2023.

[26] Form F42 – Application for an entry permit dated 21 February 2023

[27] Form F42 – Application for an entry permit dated 21 February 2023.

[28] Form F42 – Application for an entry permit dated 21 February 2023.

[29] Form F42 – Application for an entry permit dated 21 February 2023.

[30] Form F42 – Application for an entry permit dated 21 February 2023.

[31] Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch [2023] FWC 287 at [8].

[32] Form F42 – Application for an entry Permit dated 21 February 2023, National Police Check dated 18 January 2023.

[33] Applicant’s Outline of Submissions dated 13 April 2023 at [18].

[34] PR763679.

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