Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commission
[2020] FWCFB 1099
•28 FEBRUARY 2020
| [2020] FWCFB 1099 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Maritime, Mining and Energy Union
v
Australian Building and Construction Commission
(C2019/7475)
VICE PRESIDENT HATCHER | SYDNEY, 28 FEBRUARY 2020 |
Appeal against decision [2019] FWC 7850 of Deputy President Saunders at Newcastle on 18 November 2019 in matter number RE2019/872.
Introduction and background
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal, for which permission to appeal is required, against a decision published by Deputy President Saunders on 18 November 2019 1 (decision) to dismiss an application for the re-issue of an entry permit to an official in its Maritime Union of Australia Division (MUA Division), Mr Paul McAleer. It contends that the decision was attended by appealable error in a number of respects, including that it was denied procedural fairness. The appeal was opposed by the Australian Building and Construction Commissioner (ABCC), which appeared in the appeal proceedings as of right under section 10(1) of the Building and Construction Industry (Improving Productivity) Act 2016.
[2] Mr McAleer has held entry permits since 2007, previously as an official of the Maritime Union of Australia (MUA) and more recently as an official of the CFMMEU. Mr McAleer’s most recent entry permit expired on 6 September 2019, and the application was made on 5 September 2019 by the MUA Division of the CFMMEU. At the time the application was made, Mr McAleer held the positions of Divisional Branch Secretary and National Vice President of the MUA Division of the CFMMEU.
[3] Part 3-4 of the Fair Work Act 2009 (FW Act) provides a framework within which officials of organisations may gain access to premises of employers and occupiers to represent members of organisations in the workplace, to hold discussions with members and potential members, and to investigate suspected contraventions of the FW Act, fair work instruments and State or Territory occupational health and safety laws.
[4] Section 512 of the FW Act empowers the Commission, on application by an organisation, to issue an entry permit to an official of the organisation if the Commission is satisfied that the official is a “fit and proper person” to hold the entry permit. In respect of the Commission’s consideration of whether the official is a fit and proper person to hold an entry permit, s 513(1) requires that a number of “permit qualification matters” be taken into account, 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.
[5] Section 515 relevantly provides that the Commission may impose conditions on an entry permit when it is issued and, in deciding whether to impose such conditions, the Commission is required to take into account the permit qualification matters.
[6] The application for Mr McAleer to be issued with an entry permit, and the accompanying statutory declaration, disclosed four decisions of the Federal Court which contained adverse findings concerning the conduct of Mr McAleer:
• DP World Sydney Limited v Maritime Union of Australia (No 2) 2 (DP World);
• Patrick Stevedores Holdings Pty Ltd v CFMMEU 3 (Patricks No. 1);
• Fair Work Ombudsman v Maritime Union of Australia 4 (Hutchison Ports); and
• Patrick Stevedores Holdings Pty Ltd v CFMMEU 5 (Patricks No. 2).
[7] DP World and Patricks No 1 were concluded matters at the time the application was made. In DP World the Court found that Mr McAleer had contravened s 417 of the FW Act by organising unlawful industrial action, and he was ordered to pay a pecuniary penalty of $30,000. In Patricks No 1 Mr McAleer was likewise found to have contravened section 417 of the FW Act by organising unlawful industrial action and was ordered to pay a pecuniary penalty of $6,000, with the MUA also being fined $30,000.
[8] Hutchison Ports and the Patricks No 2 were not concluded matters at the time of the proceedings before the Deputy President. Hutchison Ports had been the subject of appeal on the issue of penalties. It had been remitted by the Federal Court Full Court to the trial judge for reconsideration of penalties. The trial judge had previously found that the MUA had engaged in unlawful industrial action contrary to the FW Act. Though certain findings concerned conduct by Mr McAleer, the trial judge had imposed a penalty on the MUA only, not on Mr McAleer or other individuals. In Patricks No 2 the Court found that Mr McAleer and the CFMMEU had contravened ss 417, 421 and 340 of the FW Act and, although declarations of contravention had been made, penalties had not yet been determined or ordered.
[9] The application came before the Deputy President for a telephone directions hearing on 15 October 2019. The only appearance was by Ms Danalis, a legal officer employed by the CFMMEU. The transcript discloses that the following occurred:
“THE DEPUTY PRESIDENT: I’ve listed this matter for directions today because the file has been assigned to me to be dealt with. My usual approach in these matters is to give the applicant an opportunity to put on whatever submissions and further statutory declarations it wishes to rely upon in support of the application for the permit and then, unless there is some reason I need to hold a hearing, I decide the case in Chambers and issue a written decision. Is there any objection to that course in this case, Ms Danalis?
MS DANALIS: No, Deputy President.
THE DEPUTY PRESIDENT: How long would you like to put on the additional material by way of submissions with statutory declarations and documents, if you want to rely upon any other documents?
MS DANALIS: Two weeks, please.
THE DEPUTY PRESIDENT: Two weeks. All right. I’ll make a direction that the material be put on in two weeks and I’ll decide it in Chambers unless I believe it’s necessary for a hearing. Is there any other direction you wish to be made or any other matter you want to raise this morning?
MS DANALIS: No, Deputy President, unless there were any specific concerns you have that you wanted addressed in those submissions?
THE DEPUTY PRESIDENT: Well, it’s a matter for you to decide whatever material you want to put on by way of statutory declaration, documents and submissions, but Mr McAleer has obviously been involved in and had findings made in relation to his conduct in various Federal Court proceedings, and no doubt you’re aware of those. I’ll be considering those matters in deciding this application, amongst all the other criteria I need to consider under the Act.
MS DANALIS: Thank you.
THE DEPUTY PRESIDENT: Anything else you’d like to raise this morning?
MS DANALIS: No thanks.
THE DEPUTY PRESIDENT: Thank you for your time this morning, each of you. I’ll have those directions issued today and then I’ll wait for the material to come in and consider it. Thank you very much. Good morning.
MS DANALIS: Thank you.”
[10] The chambers of the Deputy President then issued the following directions later the same day:
“[1] The Applicant (Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division) is directed to file with the Fair Work Commission any statutory declarations, submissions and other documents the Applicant intends to rely on in support of its application for an entry permit for Mr McAleer by 4:00pm on 29 October 2019.
[2] The Deputy President will consider the application and materials filed pursuant to direction one in Chambers, unless he determines that a hearing is required.
[3] If the Applicant wishes to vary these directions, he can make an application to do so in writing directly the Member’s Chambers.”
[11] Pursuant to these directions, the CFMMEU filed submissions and a statement of evidence made by Mr McAleer in support of the application. Mr McAleer’s statement attached full copies of the four Federal Court decisions referred to above. While the submissions and the statement summarised the findings and conclusions in those decisions relevant to Mr McAleer, they did not advance any matters in the nature of explanation, contextualisation, mitigation or contrition in relation to those findings beyond anything contained in the decisions themselves.
[12] The ABCC indicated, by correspondence dated 15 October 2019, that it did not wish to exercise its statutory right to be heard in relation to the application.
The decision
[13] At the outset of the decision, the Deputy President said that he accepted Mr McAleer’s evidence that he needed a right of entry permit in order to undertake parts of his role with the CFMMEU, including meeting with union members in their workplaces for a variety of reasons, negotiating enterprise agreements, providing updates to employees on enterprise agreement negotiations, and carrying out his duties and functions under the rules. 6 The Deputy President next set out the statutory framework and summarised the applicable principles derived from previous Commission and Court decisions in an uncontroversial manner.
[14] The Deputy President then dealt with each of the permit qualification matters in s 513(1) in turn. In relation to s 513(1)(d), the Deputy President considered at length the decisions in DP World and Patricks No 1. The decisions in Hutchison Ports and Patricks No 2 were considered in relation to s 513(1)(g). The conclusion reached by the Deputy President was:
“[39] In my view, Mr McAleer is not a fit and proper person to hold a right of entry permit. I have reached this conclusion after taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act and addressed in paragraphs [19] to [38] above.”
[15] The Deputy President’s reasons for this conclusion were as follows:
“[40] Although there are a number of permit qualification matters which support a finding that Mr McAleer is a fit and proper person to hold a right of entry permit, they are outweighed by the permit qualification matters which tell against such a conclusion. A permit holder under the Act has important rights and obligations which non-permit holders do not have. One important consideration when undertaking the evaluative assessment of whether a person is a fit and proper person to hold an entry permit is the personal characteristics of the individual concerned in relation to the activities of a permit holder. Past conduct is relevant to the assessment of such personal characteristics. It is apparent from Mr McAleer’s conduct in the Patricks No.1 proceedings, Patricks No.2 proceedings, DP World proceedings, and Hutchison Ports proceedings that he has repeatedly been involved in organising unlawful industrial action. Even in the context of his lengthy period since 2007 as a union official and prior to that time as a workplace delegate, Mr McAleer’s conduct in organising unlawful industrial action has taken place over a considerable period of time (2012, 2015, 2017 and 2018). Further, there is no evidence to suggest that Mr McAleer will conduct himself differently in the future.
[41] As demonstrated in the Federal Court proceedings to which I have referred, Mr McAleer has repeatedly preferred the interests of his union and/or its members over compliance with industrial laws. That was particularly the case in the DP World proceedings and the Hutchison Ports proceedings. In DP World, Mr McAleer’s actions in organising unlawful industrial action involved ‘deliberate conduct which had the consequence that there was some disruption to work during each of the three shifts on 18/19 December 2012 [and] the contraventions were, in essence, an over-reaction on the part of the Respondents [including Mr McAleer] to the decision to dismiss Mr Wills’. In Hutchison Ports, Mr McAleer was one of the MUA officials who, in what the MUA ‘perceived to be a war for its own existence’, organised unlawful industrial action and thereby preferred the interests of his union and its members over his interest in complying with the law.
[42] I recognise and have taken account of the fact that Mr McAleer’s conduct the subject of the proceedings in Patricks No. 1 and Patricks No. 2 was somewhat different. In Patricks No. 1, Mr McAleer admitted to organising unlawful industrial action, but it is clear from the extracts from the judgment of Justice Flick in paragraph [26] above that Mr McAleer believed that the employees concerned had the right under clause 4.10 of Part B of the applicable enterprise agreement to engage in ‘no work’. In Patricks No.2, Mr McAleer and another MUA official took a ‘coordinated and tactical course in putting the Ban in place’, which they thought was a ‘proportionate and appropriate remedial response to an action which was perceived to be a broader plan by Patricks and contrary to the interests of the Union and its members’. Justice Lee was ‘not satisfied that… Mr McAleer subjectively believed that [he was] engaging in a contravention of the law…’ Nonetheless, as Justice Lee noted ‘Mr McAleer’s belief that his conduct was lawful does not make it so’.
[43] I understand and have given appropriate weight to the fact that the Federal Court proceedings to which I have referred have not involved breaches of Mr McAleer’s obligations under Part 3–4 of the Act.”
[16] The Deputy President summarised his reasons for concluding that Mr McAleer was not a fit and proper person to hold a right of entry permit in the following terms:
“[44] For the reasons given, I do not have confidence that Mr McAleer would, if granted a right of entry permit, comply with his obligations under Part 3–4 of the Act when faced with the competing interests between his union and/or its members and compliance with his legal obligations as a permit holder.”
Appeal grounds and submissions
[17] The appeal seeks to set aside the decision of the Deputy President on two broad bases: first, that the applicant union and Mr McAleer were denied procedural fairness and, second, that the Deputy President made errors of reasoning so as to warrant quashing the decision.
[18] The errors of reasoning (grounds 1 to 4) are said to be:
(1) That the Deputy President erred in finding that inferences drawn from and findings of fact made in certain decisions of the Federal Court concerning Mr McAleer were relevant to the exercise of his discretion;
(2) That the Deputy President erred in relying on extraneous materials (being the inferences drawn from and findings of fact made in certain decisions of the Federal Court concerning Mr McAleer);
(3) That the Deputy President erred in considering it reasonable to rely on inferences drawn from and findings of fact made in certain decisions of the Federal Court concerning Mr McAleer; and
(4) That the Deputy President failed to take into account a relevant fact (that Mr McAleer required a right of entry permit to perform his functions under the Appellant’s rules).
[19] In support of grounds 1-3, the CFMMEU submitted:
• s 191 of the Evidence Act 1995 (Cth) provides that a finding of fact in an Australian proceeding is not admissible to prove the existence of a fact in another proceeding, and s 191 of the same Act makes it clear that agreed statements of fact only relate to the proceedings from which they are made and do not constitute admissions for all purposes;
• having regard to the purpose of these provisions, the findings and inferences of fact from the four court decisions had so little probative value that it was erroneous for the Deputy President to rely upon them to conclude that Mr McAleer chose the interests of his union and member ahead of compliance with the law;
• alternatively, the Deputy President did not give appropriate weight to findings in the decision which did not support this conclusion, including that in DP World Mr McAleer’s conduct was characterised as warranting a penalty in the lower range, and in Patricks No 2 it was found that Mr McAleer did not subjectively believe he was engaging in a contravention of the law.
[20] In relation to ground 4, the CFMMEU submitted that although at the outset of the decision the Deputy President accepted that Mr McAleer needed an entry permit to perform important aspects of his work duties, he did not deal with this matter or give it weight in his consideration of whether Mr McAleer was a fit and proper person to hold an entry permit.
[21] The procedural fairness grounds (grounds 5 and 6) contend that Mr McAleer was not given the opportunity to be heard on considerations that were central to the decision to refuse the right of entry permit, namely the inference and findings of fact in the four Federal Court decisions and the issue of how Mr McAleer might conduct himself in the future. In support of these grounds, the CFMMEU submitted:
• procedural fairness was required to be afforded to any applicants for an entry permit, and this in turn required that the applicant be advised of matters not agitated before the decision-maker which might lead to the application being determined adversely to the interests of the applicant;
• the Deputy President took into account three matters that had not been agitated in the materials filed in support of the application: (1) the manner in which the Federal Court cases were to be considered; (2) the proposition that Mr McAleer would prefer the interests of his union and its members over compliance with the law; and (3) the consideration that the applicant had not proposed any conditions on the issue of a permit for the purpose of s 515;
• the Deputy President did not advise the CFMMEU that he intended to take these matters into account and provide an opportunity to deal with them by way of further evidence and submissions, but determined the matter on the papers in a way which denied any such opportunity.
Consideration
Permission to appeal
[22] We consider the permission to appeal should be granted, because the appeal raises issues of general application concerning the procedures for the hearing and determination of applications for the issue of entry permits to union officials.
Procedural fairness issues – grounds 5 and 6
[23] It is convenient to turn first to grounds 5 and 6 of the appeal, which allege a denial of procedural fairness, since they were given a place of prominence in the CFMMEU’s conduct of its appeal at the hearing and constitute the basis upon which we have decided to grant permission to appeal.
[24] It is uncontroversial that it is necessary for the Commission to afford procedural fairness to an applicant for an entry permit. The issue which arises in this appeal concerns the circumstances in which it is necessary for the Commission to advise an applicant of an issue which may be taken into account in a way adverse to the applicant’s interests in order to afford procedural fairness. The applicable principle was stated in the Full Bench decision in Re Construction, Forestry, Mining and Energy Union 7as follows:
“[24] It is plainly the case that if a decision-maker intends to dispose of an application in a manner that is adverse to the interests of a party to the proceeding by reference to some consideration which was not agitated before the decision-maker, then the decision-maker is required to give that party an opportunity to respond to that consideration before the decision-maker decides a matter. This is just another way of illustrating the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that the person may have an opportunity of dealing with it.”
[25] This statement was made in the context of an appeal from a decision concerning an entry permit application in which the decision-maker attached a condition to the issue of a permit pursuant to s 515 of the FW Act without giving prior advice to the applicant that such a course was under consideration. This was held to involve a denial of procedural fairness. This outcome represented the application of the following general principle of law stated by a Full Court of the Federal Court in Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd 8(quoted with approval in the High Court decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs9 ):
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”
[26] The Full Court in Alphaone also said however that:
“A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted.” 10
[27] In respect of applications for the issue of entry permits under s 512 of the FW Act, we consider that the following matters are critical in relation to the application of the above propositions:
(1) It is a prerequisite to the issue of an entry permit that the Commission be satisfied that the relevant union official is a fit and proper person to hold such a permit. The burden of persuasion as to the fitness and propriety of the official remains with the applicant organisation, notwithstanding that (as is the case with the large majority of entry permit applications) the application is not opposed. It is a matter for the applicant organisation to place such material before the Commission as is necessary to discharge that burden. An applicant organisation cannot complain if such material proves to be insufficient or is not accepted.
(2) The permit qualification matters specified in s 513(1) identify the issues which will necessarily arise in the consideration of the relevant official’s fitness and propriety. A number of those matters concern any instances of non-compliance with industrial and other laws. Once any such instances of non-compliance are identified, an applicant can have no legitimate expectation of being advised or forewarned that these matters will be taken into account.
(3) Where, as required by the Commission’s standard forms for entry permit applications and accompanying statutory declarations, an applicant discloses specific matters relevant to any of the permit qualification matters specified in s 513(1), the applicant can have no legitimate expectation that it will be advised that such specific matters may be taken into account in a way adverse to the grant of the application unless some inference is to be drawn from matters which would not obviously be open.
(4) The lack of any contested facts or any contradictor may mean that it is convenient for the Commission to determine an entry permit application on the papers without any formal hearing. That however provides no basis by itself for the applicant to assume, absent further advice, that the application will be granted or that there is “nothing to worry about”.
[28] We do not consider that in this case there has been any denial of procedural fairness. The CFMMEU’s application, supporting declaration and subsequent submissions and evidence demonstrates that it understood the need to address each of the permit qualification matters in s 513(1) and it did so, including by reference to the four Federal Court decisions to which we have earlier referred. Its disclosure of these four decisions further demonstrated that it understood the relevance of the findings in those decisions concerning Mr McAleer to the permit qualification matters. None of these considerations needed to be brought to the CFMMEU’s attention by the Deputy President.
[29] It is readily apparent from the transcript of the directions hearing that the Deputy President clearly identified the procedure by which he intended to deal with the application, being on the papers without the need to hold the hearing, unless there was some reason to do so. He expressly asked the CFMMEU if they had any objection to that course, and none was expressed. The potential for a hearing remained live should it have been required. The directions provided scope for the CFMMEU to apply to vary this agreed course, including by seeking a hearing. No such application was made. There was no basis for the CFMMEU to assume that, absent subsequent advice from the Deputy President that he considered that a hearing was necessary, the application would not be determined other than in its favour.
[30] Nor did the Deputy President fail to provide the CFMMEU an opportunity to make submissions on matters central to the exercise of his discretion. The Deputy President informed the Appellant of the opportunity he would provide to put on “whatever submissions and further statutory declarations it wishes to rely upon”. In response to a specific query made by the CFMMEU at the directions hearing as to “any specific concerns you have that you wanted addressed in those submissions”, the Deputy President made it clear that the four Federal Court decisions would be taken into account as matters of significance in his consideration of the application. Although we do not consider that it was necessary for him to do so, the Deputy President thereby placed the CFMMEU on notice that it needed to properly address these in its case. That it failed to do so, as it readily admits in its appeal submissions, is a matter about which it cannot in the circumstances complain. The Deputy President’s duty was to ensure that the CFMMEU was given a reasonable opportunity to present its case, not to ensure that the CFMMEU took the best advantage of this opportunity. 11
[31] The inference drawn by the Deputy President from the decisions, in particular DP World and Hutchison Ports, that Mr McAleer repeatedly preferred the interests of his members over compliance with the law was not one which was not obviously open on the material which the CFMMEU itself placed before the Deputy President. Those two decisions, which the CFMMEU as earlier stated recognised were relevant to the permit qualifications matters, were demonstrative of contraventions by Mr McAleer of the FW Act in pursuance of the industrial interests of the members Mr McAleer was representing. We consider that in those circumstances the drawing of the inference was readily foreseeable such that there was no requirement for the Deputy President to forewarn the CFMMEU about it.
[32] It is clear from the decision that the Deputy President could not reach the necessary state of satisfaction concerning Mr McAleer’s fitness and propriety regardless of any conditions which may be imposed. Accordingly the reference in the decision to the fact that the CFMMEU did not propose any conditions cannot be regarded as a matter of significance in the Deputy President’s decision-making process.
[33] Grounds 5 and 6 of the appeal are therefore rejected.
Grounds 1- 3
[34] The short answer to the CFMMEU’s submission that the Deputy President erred in his reliance on the findings of fact, agreed facts and inferences of fact contained in the four Federal Court decisions on the basis of ss 91 and 191 of the Evidence Act is that, under s 590(1) of the FW Act, the Commission is empowered to inform itself as it sees fit and, under s 591, the Commission is not bound by the rules of evidence. The Commission was therefore entitled to have regard and give weight to the findings contained in the four decisions.
[35] The longer answer is that the CFMMEU’s submission is in any event misconceived. For s 91 of the Evidence Act to be engaged, there must be a fact which was found in the earlier proceeding which was in issue in that proceeding and is in issue in the current proceeding. 12 The CFMMEU has not identified which facts in the proceedings the subject of the four decisions were in issue, and it is readily apparent that many of the findings made arose from admitted facts. More importantly, the facts found in the four decisions were never placed in issue in the proceedings before the Deputy President such as to give rise to a question as to their admissibility. The position is that it was the CFMMEU who placed the decisions into evidence by attaching them to the witness statement made by Mr McAleer. In doing so, the CFMMEU did not identify any limitation on the use which should be made of the content of the decisions. Nor did it submit that any of the facts found in the four decisions were placed in issue by it in respect of its application for Mr McAleer to be issued with an entry permit. Simply put, no question of either admissibility of the findings of fact in the Court decisions or the weight to be assigned to them arose in the proceedings before the Deputy President. Even if the Evidence Act applied to the proceedings, s 91 was not engaged.
[36] Likewise, even if s 191 applied to the proceedings before the Deputy President, it was not engaged. Section 191 is not expressed as a prohibition upon admissibility, but in any event no relevant question of admissibility arose. Again, it was the CFMMEU which placed the decisions containing findings based on agreed statements of fact before the Deputy President, and it did so without identifying that these findings were in issue or should only be given limited weight.
[37] Appeal grounds 1-3 are therefore rejected.
Ground 4
[38] The CFMMEU’s contention that the Deputy President failed to take into account a relevant factor, namely Mr McAleer’s need to hold an entry permit to perform his role, must be rejected because this was simply not relevant to Mr McAleer’s fitness and propriety to hold an entry permit. Section 512 confers a general discretion upon the Commission to issue an entry permit, but this may only be exercised if the Commission is first satisfied that the relevant official is a fit and proper person to hold an entry permit. While the need to hold a permit is likely to be relevant in the exercise of the general discretion, it has no relevance to the jurisdictional prerequisite of fitness and propriety. The CFMMEU conceded as much in its oral submissions. The Deputy President did not reach the stage of exercising the general discretion because he was not satisfied that Mr McAleer’s was a fit and proper person. Ground 4 is therefore rejected.
Conclusion
[39] Because we have rejected all of the appeal grounds for the foregoing reasons, the appeal must be dismissed.
[40] To the extent that the outcome of these proceedings is adverse to the interests of Mr McAleer and the CFMMEU, we note that no time constraint exists under the FW Act in respect of the making of a fresh application for the issue of an entry permit. Any such application would be dealt with on the basis of the material placed before the Commission in support of the application and the applicable circumstances at the time the application is made. 13
Orders
[41] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is dismissed.
VICE PRESIDENT
Appearances:
A Slevin of counsel on behalf of the Construction, Forestry, Maritime, Mining and Energy Union.
M Follett of counsel on behalf of the Australian Building and Construction Commissioner.
Hearing details:
2020.
Sydney:
19 February.
Printed by authority of the Commonwealth Government Printer
<PR717122>
1 [2019] FWC 7850
2 [2014] FCA 596
3 [2019] FCA 1647
4 [2017] FCA 1363
5 [2019] FCA 451
6 [2019] FWC 7850 at [8]
7 [2018] FWCFB 1068
8 [1994] FCA 1074, 49 FCR 576 at 591-592
9 [2006] HCA 63, 231 ALR 592, 81 ALJR 515 at [29]
10 [1994] FCA 1074, 49 FCR 576 at 591
11 Sullivan v Department of Transport [1978] FCA 48, 20 ALR 323 at 343 per Deane J
12 King v Muriniti [2018] NSWCA 98, 97 NSWLR 991 at [14] per Basten JA, Gleeson JA agreeing.
13 See CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397
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