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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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…

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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Details

Case: [2017] FWC 5967
Decision Date: 24 NOVEMBER 2017

CaseChat Overview and Summary

The matter before the court involved an application for the issuance of a right of entry permit to Mr Kenneth Charles Miller by the Construction, Forestry, Mining and Energy Union. The court was tasked with determining whether Mr Miller met the criteria of being a fit and proper person to hold such a permit. This decision was made in the Fair Work Commission of Australia. The legal issues at hand revolved around the interpretation and application of the criteria for being a fit and proper person under the relevant legislation. Specifically, the court needed to assess whether Mr Miller's past conduct and character aligned with the standards required for holding a right of entry permit.

The court examined the evidence presented regarding Mr Miller's past actions, including his involvement in industrial disputes and any allegations of misconduct. It was essential to consider whether these actions disqualified him from being deemed a fit and proper person. The Commission meticulously reviewed the evidence, weighing Mr Miller's previous conduct against the statutory requirements. After careful consideration, the court concluded that Mr Miller did not have a history of conduct that would deem him unfit to hold a right of entry permit. Consequently, the Commission determined that Mr Miller satisfied the criteria for being a fit and proper person.

Based on this determination, the court issued a right of entry permit to Mr Kenneth Charles Miller. The decision was grounded in the thorough evaluation of the evidence and the application of the relevant legal standards. The court's ruling affirmed Mr Miller's eligibility to perform his duties under the permit, subject to compliance with any additional conditions or requirements set forth by the legislation.

Orders