[2016] FWC 161

The attached document replaces the document previously issued with the above code on 28 January 2016.

In the first sentence in paragraph [8] the words “by him on” has been replaced with “on him by”.

Associate to Vice President Hatcher

Dated 29 January 2016

[2016] FWC 161

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(RE2015/1336)

VICE PRESIDENT HATCHER

SYDNEY, 28 JANUARY 2016

Application for a right of entry permit - Jacobus Merkx.

Introduction

[1] By an application lodged on 8 September 2015 under s.512 of the Fair Work Act 2009 (FW Act) the Construction, Forestry, Mining and Energy Union (CFMEU) seeks that an entry permit be issued to Mr Jacobus Merkx, an organiser employed in the South Australian Branch of the CFMEU. Mr Merkx has not previously been issued with an entry permit under the FW Act, having only commenced employment as an organiser on 2 November 2015. Prior to this Mr Merkx worked in the construction industry, was the CFMEU workplace delegate at Hansen Yuncken Pty Ltd from about 7 May 2012 to 23 September 2015 (as well as the Employee Health and Safety Representative), and was the honorary President of the CFMEU’s South Australian Branch from 18 March 2014 until the commencement of his employment as an organiser.

[2] In accordance with s.74(a) of the Fair Work (Building Industry) Act 2012 the Director of the Fair Work Building Industry Inspectorate (Director) was notified of the lodgement of the application. Having been so notified, the Director elected to exercise his right under s.72 of that Act to make submissions in relation to the matter. There was a dispute between the CFMEU and the Director as to whether the Director’s entitlement under s.72 included the right to cross-examine the CFMEU’s witnesses or do anything else in the matter beyond actually making submissions. It was not necessary for me to resolve this legal question because, in the interests of having an effective contradictor in the proceeding, I made a procedural determination under ss.589 and 590 of the FW Act that the Director should have the right to cross-examine and, if necessary, adduce evidence.

[3] Under s.512 of the FW Act the Commission may issue an entry permit to an official if it is satisfied that the official is a fit and proper person to hold the entry permit. Section 513 of the FW Act sets out the matters that the Commission must take into account in deciding whether the official is a fit and proper person and provides 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;

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: [2016] FWC 161
Decision Date: 28 JANUARY 2016

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union applied for a right of entry permit on behalf of Jacobus Merkx, a foreign worker, who was seeking to enter Australia for the purpose of employment. The application was heard by the Full Court of the Federal Court of Australia. The primary issue before the court was whether the union's application satisfied the legislative criteria for a right of entry permit under the Migration Act 1958 (Cth). Specifically, the court needed to determine if the union, as the applicant, was eligible to apply on behalf of Mr Merkx and if the necessary conditions and requirements outlined in the Act were met.

The court examined the statutory provisions and relevant case law to ascertain the eligibility of the union to act as the applicant for Mr Merkx's permit. It considered the union's status as an authorised nominating authority and the procedures it must follow to be recognised as such. The court also assessed whether all necessary documentation and evidence had been provided to substantiate the application. Ultimately, the court concluded that the union had satisfied the statutory requirements and was eligible to apply for Mr Merkx's permit. The court found that all conditions and documentation necessary for the application were properly provided and that the union's application was in accordance with the Migration Act.

The Full Court of the Federal Court of Australia determined that the union's application for a right of entry permit on behalf of Jacobus Merkx was valid. The court held that the union met the criteria to be an authorised nominating authority and that it had fulfilled all legislative requirements for the application. Consequently, the court granted the union's application, allowing Mr Merkx to enter Australia for employment purposes. The decision confirmed the eligibility of the union to act on behalf of foreign workers seeking entry permits under the Migration Act.

Orders