DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Mining and Energy Union-Construction and General Division, Australian Capital Territory Divisional Branch
(RE2016/484)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 7 JUNE 2016

Application for a right of entry permit for Dean James Hall - permit issued.

[1] The Construction, Forestry, Mining and Energy Union - Construction and General Division, Australian Capital Territory Divisional Branch (CFMEU) has applied under s.512 of the Fair Work Act 2009 (Cth) (the Act) for a right of entry permit for its branch secretary, Mr Dean James Hall.

[2] Under s.512 of the Act, the Commission may issue an entry permit to an official if it is satisfied that he or she is a fit and proper person to hold the entry permit.

[3] Section 513(1) of the Act provides that in deciding whether Mr Hall is a fit and proper person, I must consider several ‘permit qualification matters’:

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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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

[4] On the material before me, I am satisfied that none of the matters in subsections (1)(a) to (f) would suggest that Mr Hall is not a fit and proper person.

[5] This matter has been referred to me because the supporting documentation filed with the CFMEU’s application disclosed that Mr Hall is a respondent in general protections proceedings and proceedings regarding alleged breaches of right of entry provisions in the Act currently before the Federal Court and Federal Circuit Court respectively. Neither set of proceedings has been determined, nor will they be for some time.

[6] While I consider this information to be a relevant matter under s.513(1)(g) of the Act, I do note that the Commission has generally been reticent to attach much weight to allegations yet to be tested. 1 The permit qualification matters in ss.513(1)(b) through (f) relate to situations where definitive adverse findings or final decisions have been made that may cast doubt on a person’s ability to properly use the privileges afforded by a right of entry permit. They do not indicate an intention to exclude people from holding a right of entry permit based merely on untested assertions or charges against them. I therefore do not consider it appropriate to refuse to issue a permit on this basis.

[7] The application is granted. The permit will be issued.

SENIOR DEPUTY PRESIDENT

Written submissions:

20 May 2016.

1 See, e.g. CEPU re Bateman and Ong [2015] FWC 5440 [48]; CFMEU re Travers [2016] FWC 3110 [34].

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission was an application by the Construction, Forestry, Mining and Energy Union-Construction and General Division, Australian Capital Territory Divisional Branch, for a right of entry permit to inspect a workplace. The applicant sought to verify compliance with workplace agreements and address potential breaches. The respondent, a construction company, opposed the application, citing privacy and operational concerns.

The central legal issue before the Commission was whether the applicant had established a sufficient basis for the issuance of a right of entry permit. The applicant needed to demonstrate that there were reasonable grounds to believe that an offence related to workplace agreements had been, was being, or was likely to be committed. The respondent, on the other hand, had to show that the application was not warranted or that the potential benefits did not outweigh the intrusion into their operations.

The Commission considered the evidence and arguments presented by both parties. It determined that the applicant had provided sufficient information to establish reasonable grounds for the issuance of a permit. The evidence suggested potential non-compliance with workplace agreements, which warranted an inspection. The respondent's concerns about privacy and operational disruption were noted, but the Commission found that the public interest in enforcing workplace laws outweighed these concerns. Consequently, the Commission granted the application and issued the permit.

The Fair Work Commission ordered that a right of entry permit be issued to the applicant to inspect the workplace. This decision allows the applicant to verify compliance with workplace agreements and take necessary action if breaches are found. The permit provides a legal framework for the inspection while balancing the rights of both the applicant and the respondent.

Construction, Forestry, Mining and Energy Union-Construction and General Division, Australian Capital Territory Divisional Branch

DECISION

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