Construction, Forestry, Mining and Energy Union

[2017] FWC 5967

[2017] FWC 5967

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit

Construction, Forestry, Mining and Energy Union
(RE2017/1118)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 24 NOVEMBER 2017

Application for issue of right of entry permit to Mr Kenneth Charles Miller; satisfied that fit and proper person; permit issued.

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) 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, Mr Kenneth Charles Miller. Mr Miller is employed as an organiser with the CFMEU.

[2] The Australian Building and Construction Commissioner (Commissioner) did not wish to make a submission in relation to this application. I have decided to determine the application on the papers without a hearing.

Relevant statutory provisions and application

[3] Subdivision A, Division 6 of Part 3 – 4 of the Act contains provisions dealing with entry permits. So far as it is relevant for present purposes these provide 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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

514 When the FWC must not issue permit

The FWC must not issue an entry permit to an official at a time when a suspension or disqualification, imposed by a court or other person or body:

(a) applies to the official’s exercise of; or

(b) prevents the official from exercising or applying for; a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory OHS law.

515 Conditions on entry permit

(1) The FWC may impose conditions on an entry permit when it is issued.

(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.

(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).

(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.

(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).”

[4] In Maritime Union of Australia v Fair Work Commission and Another 1 (MUA), a Full Court of the Federal Court of Australia 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 Act. The Full Court observed the following:

“[13] Although the questions for resolution may be stated simply, it is important to recognise at the outset that Part 3–4 of the Fair Work Act fundamentally modifies common law rights.

[14] A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union(1987) 18 FCR 51 at 61– 62 thus observed:

‘The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.’

See also: Lane v Arrowcrest Group Pty Ltd(1990) 27 FCR 427 at 439–440 per von Doussa J.

[15] Section 480, extracted at 8 above, 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.

[16] It is thus not surprising that the legislature has confined the category of persons who may be clothed with such powers to those persons who are ‘fit and proper’.

[17] The phrase a ‘fit and proper person’ is used in many different statutory contexts: e.g., Customs Act 1901 (Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase ‘fit and proper person’ by expressly including a reference to whether an individual is of ‘good fame, integrity and character...’: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:

‘The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.’” 2 

[5] The Full Court ultimately concluded that when the Commission is deciding whether to issue an entry permit pursuant to s.512 of the Act, those considerations relevant to the exercise of the power in s.513 of the Act are not confined, for example, to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the Commission, at least initially. However, the prospect remains for judicial review founded upon, for example, alleged unreasonableness. 3   

[6] The Full Courtalso concluded that conditions may be imposed pursuant to s.515 of the Act to remedy or address deficiencies or reservations in respect of a proposed permit holder, which deficiencies or reservations could otherwise lead to the conclusion that the person was not fit and proper. 4  

[7] Before MUA was decided, the relevant principles applicable to applications of this kind were usefully summarised by Vice President Hatcher in Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 5  as follows:

● “A ‘fit and proper’ standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.

● The expression ‘fit and proper person’ in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an 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, but rather 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.

● The question of whether an official is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights.

● The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.

● The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.

● While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).

● Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.”  6 

[8] It would seem to me self-evident, having regard to the structure and content of s.513, that in deciding whether an official of a registered organisation 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. Whilst it will often be the case that the likely area of focus and attention during a contested application will be on contravening conduct of an official giving rise to the matters identified in s.513(1)(d) of the Act, the other permit qualification matters cannot be ignored and must be given appropriate weight. 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.
[9] There is nothing in the Vice President’s summary which is inconsistent with the views expressed by the Full Court in MUA save, that the summary needs to be modified to take into account the permit qualification matters and the assessment of the fitness and propriety of a proposed permit holder, in light of the power to impose conditions when a permit is issued and the Full Court’s observations about weight attaching to the permit qualification matters. 7   With those modifications and the observation I have made in the preceding paragraph, I respectfully agree with and adopt the Vice President’s summary.

[10] I turn to consider the application.

Consideration

[11] Mr Miller is employed as an Organiser by the CFMEU. On 13 October 2014, Mr Miller was issued with a permit (RE2014/820). That permit was due to expire on 13 October 2017. On 12 September 2017, the CFMEU applied, under s.516 of the Act, for Mr Miller’s permit to be extended. On 9 October 2017, I granted an extension to the expiry date of the permit [PR596639] pending the determination of this matter.

[12] I now turn to consider the permit qualification matters outlined in the Act.

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

[13] According to the declarations filed by the CFMEU in support of the application for the grant of a permit to Mr Miller (the Declarations):

•  Mr Miller has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of federal right of entry conducted by the ACTU on 29 August 2017 (s.513(1)(a) of the Act);

•  He has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);

•  Neither he nor any other person has been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by him (s.513(1)(d) of the Act);

•  He 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);

•  He has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Harkins 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); and

•  He 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).

[14] I accept that this information as disclosed in the Declarations concerning these matters is accurate and correct. Each of these matters weigh in favour of a conclusion that Mr Miller is a fit and proper person to hold an entry permit.

Permit qualification mater –s.513(1)(c)

[15] In deciding whether Mr Miller is a fit and proper person to hold a right of entry permit, one of the matters that I must take into account is whether Mr Miller has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, fraud, dishonesty, intentional use of violence against another person or intentional damage or destruction of property.

[16] Section 513(2) of the Act provides that Division 3 of Part VIIC of the Crimes Act 1914 (Cth) (Crimes Act) applies in relation to the disclosure of information to or by, or the taking into account of information by, the Commission for the purpose of making a decision under Part 3-4 of the Act.

[17] Section 85ZM(1) of the Crimes Act sets out the meaning of conviction and spent conviction as follows:

“85ZM Meaning of conviction and spent conviction

(1) For the purposes of this Part, a person shall be taken to have been convicted of an offence if:

(a) the person has been convicted, whether summarily or on indictment, of the offence;

(b) the person has been charged with, and found guilty of, the offence but discharged without conviction; or

(c) the person has not been found guilty of the offence, but a court has taken it into account in passing sentence on the person for another offence.

(2) For the purposes of this Part, a person’s conviction of an offence is spent if:

(a) the person has been granted a pardon for a reason other than that the person was wrongly convicted of the offence; or

(b) the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended.”

[18] Section 85ZL of the Crimes Act defines the relevant “waiting period” as the period of 10 years beginning on the day on which the person was convicted.

[19] Mr Miller has declared that approximately 30 years ago he was convicted of an offence referred to in s.513(1)(c) of the Act and that the convictions are spent convictions. The offence involved entry onto premises and the intentional use of violence against another person or intentional damage or destruction of property and did not involve a custodial sentence. 8

[20] The offence with which Mr Miller was charged, falls within the definition of a conviction set out in s.85ZM(2)(b) of the Crimes Act. However Mr Miller was not required to disclose the offences and Division 3 of Part VIIC of the Crimes Act requires that I disregard the conviction and I do so. The absence of a relevant conviction weighs in favour of a conclusion that Mr Miller is a fit and proper person to hold an entry permit.

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

[21] The Declarations disclose that Mr Miller is a respondent in two proceedings that have been bought by the Australian Building and Construction Commissioner, which are currently before the Federal Court and Federal Circuit Court respectively. In Australian Building and Construction Commissioner v Dean Hall & Ors 9 it was alleged that Mr Miller had engaged in conduct which amounted to contraventions of s.340(1)(a) and s.343(1) of the Act. The application was dismissed by Justice Flick, but that decision is now the subject of an appeal. I do not take that matter into account. In Australian Building and Construction Commissioner v Dean Hall & Ors10 it is alleged that Mr Miller has engaged in conduct resulting in a contravention to s.494 of the Act. Mr Miller has made an admission in relation to the matters alleged by the ABCC in this matter; however, as the proceedings are currently before the Federal Circuit Court, and no finding of contravention has been made it is not appropriate to take the matter into account.

[22] There are no other matters about which I am aware that are relevant under this head.

[23] All of the matters about which account must be taken weigh in favour of a conclusion that Mr Miller is a fit and proper person to hold an entry permit and I am satisfied taking into account the permit qualification matters that this is so. There are no matters which appear to me to weigh against the exercise of my discretion to issue a permit to Mr Miller and I propose to do so.

Conclusion

[24] For the reasons given, I am satisfied that Mr Miller is a fit and proper person to hold an entry permit and a permit will be issued to him effective from the date of this decision.

DEPUTY PRESIDENT

Written submissions:

Construction, Forestry, Mining and Energy Union’s Outline of Submissions dated 30 October 2017.

 1   [2015] FCAFC 56.

 2   Ibid at [13]–[17].

 3 Ibid at [42].

 4 Ibid at [43].

 5   [2015] FWC 1522.

 6 Ibid at [32].

 7 [2015] FCAFC 56 at [25] and [43].

 8   [2014] FWC 6729 and Construction, Forestry, Mining and Energy Union’s Outline of Submissions dated 30 October 2017 at [36].

 9 [2017] FCA 274

 10   CAG78/2014

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