Construction, Forestry, Mining and Energy Union

[2017] FWC 4846

[2017] FWC 4846

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(RE2017/793)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 18 SEPTEMBER 2017

Application for issue of right of entry permits to Mr Andrew William John Ramsay; satisfied that fit and proper person; permit issued.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 14 September 2017. The Construction, Forestry, Mining and Energy Union (CFMEU) has, by its application lodged on 30 June 2017, applied to the Fair Work Commission (Commission) under s.512 of the Act for the issue of a right of entry permit to its official Mr Andrew Ramsay. 

[2] Mr Ramsay is an organiser who is employed by the CFMEU.  He currently holds an entry permit which was issued on 6 August 2014.  The expiry date of that permit was extended by Senior Deputy President Hamberger by order issued on 27 July 2017. 1 The effect of the order is that the expiry date of that permit is extended until this application is determined.

[3] The relevant statutory provisions to which I need to turn my attention are contained in Part 3-4 of the Act and, relevantly, ss.512 - 515.  These provisions have been the subject of consideration both by the Federal Court and by this Commission.  I summarised the effect of those decisions most recently in Australian Salaried Medical Officers Federation 2 .  I do not repeat those here but simply adopt and apply that which I said in that decision.

[4] Section 513 of the Act sets out the matters which I must take into account in determining whether Mr Ramsay is a fit and proper person to hold an entry permit under the Act.  As I and other Members of the Commission have previously indicated, the consideration of the permit qualification matters is primarily directed to the personal characteristics of the proposed permit holder and is necessarily concerned with the suitability, in this case, of Mr Ramsay to properly discharge these functions and to exercise the rights, duties and privileges associated with holding an entry permit under the Act.

[5] The CFMEU have filed two declarations with the application for the issue of a permit. Relevantly, those declarations disclose the following matters. First, that Mr Ramsay has completed appropriate training about the rights and responsibilities of a permit holder. 3  The training was completed on 5 May 2017.  The declarations disclose that Mr Ramsay has never been convicted of an offence against an industrial law4, he has never been convicted of an offence against a law of the Commonwealth, a State or Territory or a foreign country involving the kind of conduct described in s.513(1)(c), he has not been ordered to pay a penalty under the Act, nor has any other person been ordered to pay a penalty under the Act by reason of any action taken by Mr Ramsay5.

[6] Mr Ramsay has not had an entry permit issued to him under the Act or under a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit. 6   He has not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes held under a State or Territory industrial law or a State or Territory occupational health and safety law,7 nor has he 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 under a State or Territory occupational health and safety law.8

[7] I accept as accurate and correct the information as disclosed in the two declarations.  I am also satisfied, having regard to that which I said in Australian Salaried Medical Officers Federation 9 , that Mr Ramsay has undertaken a course of training in relation to rights and responsibilities for a permit holder under the Act that is appropriate training.  I am satisfied of the matters going to the permit qualification matters as disclosed in the declarations that have been filed.  These are, therefore, all matters which weigh in favour of a conclusion that Mr Ramsay is a fit and proper person to hold an entry permit under the Act.

[8] In the declaration completed by Mr Ramsay and lodged with the application, Mr Ramsay discloses a relevant proceeding in this Commission in Bechtel Construction v CFMEU 10and a related appeal decision in CFMEU v Bechtel Construction11.  The matter arose out of a right of entry dispute notification and was determined by Commissioner Booth at first instance.

[9] So far as Mr Ramsay's conduct is concerned, the allegation, the subject of the dispute, appears to have been limited to a single entry which occurred on or about 20 March 2012 which, self-evidently, is a period now of more than five years.  Commissioner Booth’s conclusions or findings insofar as they related to Mr Ramsay included that Mr Ramsay effected entry other than in accordance with Bechtel's ordinary procedures, despite having knowledge of these procedures, and that he walked on the haul road without an escort and without authority.  The Commissioner determined that an appropriate resolution to the dispute was that Mr Ramsay's entry permit would be suspended for a period of one month.
[10] On appeal, the decision to suspend was overturned on the basis that the Commissioner did not have a sufficient evidentiary basis to deal with the dispute by way of the imposition of a suspension of the entry permit.

[11] Other matters that are relevant to viewing Mr Ramsay's conduct, or at least the significance of that conduct if it were relevant, included that the conduct appears to have been an isolated incident and occurred on a single day. Also relevant is that Mr Ramsay appears to have been a permit holder under this Act and predecessor legislation for what appears to be a continuous period with successive permits having been issued since at least 2003.  It is also apparent that Mr Ramsay had previously, sometime following 26 October 1990, been the holder of an entry permit issued under the Industrial Relations Act 1990, which appears to be a State law.

[12] These are relevant because apart from the incident which gave rise to the right of entry dispute dealt with by Commissioner Booth, there does not appear to be any other relevant adverse conduct in which Mr Ramsay had engaged throughout that long period during which he has been a permit holder. Therefore, if the conduct, the subject of Commissioner Booth’s finding, were relevant adverse conduct, viewed in context, the conduct is not nearly significant enough for it to weigh against a finding that Mr Ramsay is a fit and proper person to hold an entry permit.

[13] In written submissions filed in support of this application, the CFMEU have contended, for the reasons set out therein, that the view of the regulator, the ABCC, should be taken into account in matters such as this in the context that the ABCC have seen fit not to make any submission in this proceeding.  I accept that it is a relevant matter.  I also made some passing comments in the previous hearing, 12 which I need not repeat here, as to the significance of that in other, perhaps future, cases.

[14] For present purposes, taking into account the permit qualification matters and giving each appropriate weight, it seems to me that all matters weigh in favour of a conclusion that Mr Ramsay is a fit and proper person to hold an entry permit. Accordingly, I direct that Mr Ramsay be issued an entry permit as soon as practicable.

[15] I also order that the order made by Senior Deputy President Hamberger on 27 July 2017 13, be amended so that the entry permit that Mr Ramsay currently holds (RE2014/1291), have its expiry date extended until the day on which an entry permit pursuant to this decision is issued.

DEPUTY PRESIDENT

Appearances:

Mr R Reitano, Counsel for the Construction, Forestry, Mining and Energy Union.

Hearing details:

Sydney.

2017.

14 September.

 1   PR594910.

 2   [2017] FWC 3282 at [8] – [13].

 3   Section 513(1)(a).

 4   Section 513(1)(b).

 5   Section 513(1)(d).

 6   Section 513(1)(e).

 7   Section 513(1)(f)(i).

 8   Section 513(1)(f)(ii).

 9   [2017] FWC 3282.

 10   [2014] FWC 5900.

 11   [2015] FWCFB 946.

 12   RE2017/687 Transcript PN61.

 13   PR594910.

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