Construction, Forestry, Mining and Energy Union-Construction and General Division

[2017] FWC 1858

[2017] FWC 1858

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Mining and Energy Union-Construction and General Division
(RE2017/174)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 3 APRIL 2017

Application for a right of entry permit for Christopher Paul Gambian; application of general rule that training must be within 3 months of application.

[1] On 17 February the Construction, Forestry, Mining and Energy Union, Construction and General Division (CFMEU) made an application under s.512 of the Fair Work Act 2009 (the FW Act) for an entry permit for Mr Christopher Gambian.

[2] The application included a declaration that Mr Gambian had received appropriate training about the rights and responsibilities of a permit holder. The application indicated that Mr Gambian had completed the Federal Right of Entry course conducted by the ACTU Organising Centre on 4 December 2015 (that is, just over 14 months prior to the application).

[3] A member of the Regulatory Compliance Branch of the Fair Work Commission wrote to the CFMEU on 22 February 2017 and indicated the Delegate would require new right of entry training to be completed by Mr Gambian. This was in line with the Delegate’s requirement that all permit holders complete right of entry training within three months of a right of entry application.

[4] The CFMEU replied to the Regulatory Compliance Branch of the Commission on 28 February 2017. The CFMEU’s email included the following:

‘1. The focus of inquiry under s512 of the Fair Work Act 2009 (Cth) is whether an official is a fit and proper person to be issued an entry permit, having regard to the permit qualification matters set out in s 513(1).

2. One permit qualification matter which is a relevant consideration (but not a condition precedent) to the grant of an entry permit, is whether the official has undertaken appropriate training. No timeline is imposed by the Act for when such training must have occurred. Certainly, no 3 month timeframe prior to the lodgement of an application is mandated by the Act.

3. We understand from your email that consideration will not be given by the Delegate to any application relating to an official where that official has not undertaken training within the last three months. Please confirm our understanding in this respect. In any event we ask that the Delegate give consideration to Mr Gambian’s application for a permit on the merits.

4. If the Delegate decides not to consider Mr Gambian’s application until he undertakes further training, we ask that the Delegate provide his reasons for such decision.’

[5] The Regulatory Compliance Branch wrote back to the CFMEU on 28 February 2017. The email included the following:

‘To ensure that permit holders understand their rights and responsibilities, the Delegate of the Fair Work Commission (the Commission) in 2016 deemed that as a general rule, every application for an entry permit is required to be accompanied by evidence of approved right of entry training completed within 3 months of an application being lodged. The currency of training program regarding the requirement that approved training be undertaken within 3 months of an application being made has been published on the Commission’s website since 2016…. The practical effect of this for all applicants is that permit holders will complete refresher training every 3 years. I recommend that Mr Gambian complete his refresher right of entry training as soon as possible and once completed please forward a copy of Mr Gambian’s training certificate and we will strive to process his application as quickly as possible.’

[6] The CFMEU replied the same day noting the following:

‘1. Mr Gambian has undertaken appropriate training. The Commission has recognised on numerous occasions that the ACTU right of entry course is ‘appropriate training’ for the purposes of s513(1)(a) of the Fair Work Act. Further, and in any event, having regard to the intended practical consequences of the Delegate’s ‘general rule’ Mr Gambian has undertaken right of entry training within the past 3 years.

2. There is no warrant for consideration of his application being delayed by the Delegate.

3. If the Delegate continues to hold the view that Mr Gambian’s permit will not be processed unless and until he undertakes further training, please confirm this by return. We also request that the Delegate provide us reasons for this decision.’

[7] The Regulatory Compliance Branch wrote back to the CFMEU on 1 March 2017. The email included the following:

‘The Delegate has advised that the Fair Work Commission (the Commission) has for some time been working closely with stakeholders, including employee organisations and the ACTU in relation to the frequency of training concerning right of entry permits issued under the Fair Work Act 2009 (the Act), and that the Commission has previously considered the recommendation of the Trade Union Royal Commission in its December 2015 report that right of entry training should be conducted annually. The Commission engaged an independent expert to review a range of issues associated with the administration of right of entry permits, including the frequency of training and consulted with the ACTU, employer and employee organisations before concluding the approach now taken with respect to training. The Commission has previously written to all federally registered employee organisations about the issue and provided information on the Commission’s web site.

The Delegate has added that the Commission has received overwhelming support from employee organisations and the ACTU in relation to a requirement that as a general rule, proposed permit holders should have received training within 3 months of any application being made. The Delegate has advised that he does not consider right of entry training received in 2015 to be ‘appropriate training’ for the purposes of s513(1)(a) of the Act although the Delegate does not propose to make any decision about this application.

Could you please confirm whether Mr Gambian will or will not undertake refresher training. If Mr Gambian does not undertake refresher training the Delegate has advised that he will determine the matter to be non-routine and refer the application to the Tribunal for consideration and determination.’

[8] On the same day (1March 2017) the CFMEU requested that the matter be allocated to a member of the Commission.

[9] The application was subsequently referred to me and the matter was listed for mention and directions on Thursday 16 March 2017.

[10] The matter was heard on 3 April 2017. The CFMEU and Mr Gambian were represented by Mr Boncardo. Mr Gambian gave both written and oral evidence in support of the application, including answering a number of questions posed by the Commission. At the conclusion of the hearing I indicated that I was satisfied that Mr Gambian was a fit and proper person to hold an entry permit and that accordingly the Commission would issue him with such a permit. These are the reasons for my decision.

The Legislative provisions

[11] The provisions concerning entry permits are to be found in Part 3-4 of the FW Act which deals with right of entry. The object of Part 3-4 is set out in s.480:

‘480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.’

[12] Section 512 of the FW Act states:

‘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.’

[13] Section 513(1) of the FW Act states:

‘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.’

Consideration

[14] I am satisfied that Mr Gambian has never been convicted of an offence against an industrial law (s.513(1)(b)).

[15] I am satisfied that Mr Gambian has never been convicted of an offence against a law of the Commonwealth, State or Territory or foreign country involving: entry onto premises; fraud or dishonesty; intentional use of violence against a person; or intentional damage or destruction of property (s.513(1)(c)).

[16] I am satisfied that Mr Gambian or any other person has not been ordered to pay a penalty under the FW Act or other industrial law in relation to action taken by Mr Gambian (s.513(1)(d)).

[17] Mr Gambian has never had an entry permit revoked, suspended or made subject to conditions (s.513(1)(e)).

[18] Mr Gambian has never had any adverse action taken against him in respect of permits he has held under State or Territory occupational health and safety legislation (s.513(1)(f)).

[19] The only remaining issue in determining whether Mr Gambian is a fit and proper person to hold an entry permit is whether he can be said to have received appropriate training about the rights and responsibilities of a permit holder.

[20] The general approach of the Delegate with regard to the currency of training is spelt out on the Commission’s website. It indicates as follows:

‘Contemporaneous training is critical to ensure that permit holders understand their rights and responsibilities.

As a general rule, every application for a Fair Work permit received at the Commission in 2016 is required to be accompanied by evidence of approved training received within 3 months of the application being made in order for that training to meet the statutory requirement of appropriate training.

The practical effect of this for many permit holders is that they will be required, at the minimum, to complete refresher training every 3 years.’

[21] Mr Gambian commenced employment as the Executive Officer for the National Office of the CFMEU in January 2017. An aspect of this role includes attending worksites to have discussions with CFMEU members and potential members.

[22] Prior to commencing with the CFMEU, Mr Gambian worked as an Organiser, Lead Organiser and National Director for the Finance Sector Union (FSU) from January 1997 to October 2012. During the period he worked for the FSU Mr Gambian held permits issued under the relevant Commonwealth industrial relations legislation. Until Mr Gambian ceased working for the FSU he had held a right of entry permit continuously for over 15 years. For a significant part of this time he had responsibility for training other officials concerning their legal rights and responsibilities, including in relation to right of entry.

[23] Mr Gambian worked for the Community and Public Sector Union (CPSU) from November 2015 until June 2016. It was shortly after taking up this role with the CPSU that Mr Gambian completed the ACTU right of entry training.

[24] The question is whether I can be satisfied that Mr Gambian is a fit and proper person to hold an entry permit without insisting that he undertake refresher right of entry training?

[25] It is clearly desirable that permit holders receive regular training to ensure their knowledge of the rights and responsibilities of permit holders remains current. It is reasonable that the Delegate adopt a general rule that prospective permit holders have completed right of entry training within three months of the time an application for a permit under s.512 is lodged. This means that holders of entry permits generally receive refresher training every three years.

[26] However any such general rule has to be subject to the overriding statutory obligation to determine whether a person is fit and proper to hold an entry permit, having regard to all the permit qualification matters. No such rule can be applied rigidly.

[27] In Mr Gambian’s case he has completed right of entry training in the relatively recent past (just over a year prior to the application). He also has a long record of holding an entry permit and has, I am satisfied, always complied with his obligations as a permit holder under the relevant legislation. He has never received a sanction for breaching industrial laws.

[28] I have also had the opportunity to question Mr Gambian during the hearing. I am satisfied that he has a good understanding of the rights and responsibilities of a permit holder.

[29] Having regard to all the permit qualification matters, I am satisfied that Mr Gambian is a fit and proper person to hold an entry permit. He will accordingly be issued with a permit.

[30] I observe that that it would be appropriate for any other applications for entry permits where the proposed permit holder has not received training within three months of the application to be dealt with as ‘non-routine’. Such applications should be referred to a member of the Commission for determination.

SENIOR DEPUTY PRESIDENT

Appearances:

P Boncardo for the Construction, Forestry, Mining and Energy Union.

Hearing details:

Sydney

2017

April 3

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