Construction, Forestry, Mining and Energy Union (C2014/713)
SENIOR DEPUTY PRESIDENT ACTON SENIOR DEPUTY PRESIDENT O’CALLAGHAN COMMISSIONER SPENCER
MELBOURNE, 22 SEPTEMBER 2014
Appeal against decision [[2014] FWCD 2437] of Mr Enright in matter number RE2013/1638 - right of entry permit.
Introduction
[1] This decision deals with an appeal by the Construction, Forestry, Mining and Energy Union (CFMEU) against a decision 1 of Mr Enright, as delegate of the Fair Work Commission (FWC), on 11 April 2014 declining to issue an entry permit to Mr Kane Pearson, an official of the CFMEU. The CFMEU had made an application to the FWC for the issuing of such a permit on 18 October 2013.
[2] At the commencement of the proceedings we granted the CFMEU and the Director of the Fair Work Building Industry Inspectorate permission to be represented by a lawyer having regard to the provisions of s.596(2)(a) of the FW Act. We were satisfied it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter as the appeal raised issues of statutory construction. Further, there was no objection to such representation.
Statutory provisions
[3] Sections 512, 513 and 515 are the provisions of the Fair Work Act 2009 (Cth) (FW Act) relevant to this appeal. They are as follows:
“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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497
Case
[2014] FWCFB 6497
Decision Date
CaseChat Overview and Summary
In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union appealed a decision made by Mr Enright regarding a right of entry permit. The dispute arose from an application by the Union to obtain a permit that would allow its representatives to enter certain workplaces to discuss potential industrial issues with employees. The matter was brought before the Commission to determine the merits of the Union's appeal against the rejection of its application.
The primary legal issues before the Commission were whether the Union's application for a right of entry permit was justified under the relevant legislation and if the decision of Mr Enright to deny the permit was legally sound. The Union argued that the permit was necessary to facilitate discussions about potential industrial issues, while the respondents contended that the Union's application did not meet the statutory criteria for granting such permits.
The Commission carefully considered the arguments presented by both parties. It examined the statutory provisions governing the issuance of right of entry permits and the evidence provided in support of the Union's application. The Commission concluded that the Union's application did not satisfy the requirements set out in the legislation, as it lacked sufficient evidence to demonstrate an immediate and pressing need for the permit. As a result, the Commission upheld the decision of Mr Enright to deny the Union's application for a right of entry permit.
The Fair Work Commission's final order was that the appeal by the Construction, Forestry, Mining and Energy Union was dismissed, and the decision of Mr Enright to deny the right of entry permit application was upheld. The Union was not granted the permit it sought to facilitate discussions with employees about potential industrial issues.