Construction, Forestry, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch

[2017] FWC 5003

[2017] FWC 5003

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Construction, Forestry, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch
(RE2017/683)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 2 OCTOBER 2017

Application for issue of right of entry permit to Mr Rebel Brandon Hanlon; satisfied that fit and proper person; permit issued.

[1] On 26 September 2017 I determined that I was satisfied that Mr Rebel Brandon Hanlon (Mr Hanlon), an organiser employed by the Construction, Forestry, Mining and Energy Union (CFMEU) was, taking into account the permit qualification matters, a fit and proper person to hold an entry permit under the Fair Work Act 2009 (Act) and I directed that a permit be issued to Mr Hanlon. These are my reasons for that decision.

[2] The CFMEU has, by its application lodged on 8 June 2017 applied to Fair Work Commission (Commission) under s.512 of the Act for the issue of right of entry permits to its official, Mr Hanlon.

[3] Mr Hanlon is an organiser employed by the CFMEU and has held a number of a right of entry permits, the most recent of which expired on 7 August 2017 and has been returned to the Commission in accordance with the requirements of the Act. Prior to his current role as an organiser, Mr Hanlon was Assistant Secretary of the NSW Construction and General Division of the CFMEU. In these capacities, Mr Hanlon has worked for the CFMEU since September 2002.

Relevant statutory provisions and application

[4] Subdivision A, Division 6 of Part 3 – 4 of the Act contains provisions dealing with entry permits. So far as these relate to the current application, ss. 512 to 515 of the Act are relevant. The application of these provisions on the question of whether a person is a fit and proper person in the context of the right of entry regime established by Part 3 – 4 of the Act have been considered by a Full Court of the Federal Court of Australia in Maritime Union of Australia v Fair Work Commission and Another [2015] FCAFC 56.

[5] Most recently in Australian Salaried Medical Officers Federation [2017] FWC 3282 at [8] – [13], I summarised the relevant principles to be drawn from the authorities relevant to the question of whether a proposed permit holder is a fit and proper person to hold a right of entry permit, and though I will not repeat what I there said, I adopt those paragraphs and apply them here.

Permit qualification matters – ss. 513(1)(a) (b), (c), (e) and (f)

[6] Section 513 of the Act sets the matters that are to be taken into account in determining whether a proposed permit holder, in this case Mr Hanlon, is a fit and proper person to hold a right of entry permit under the Act. These are described as Permit qualification matters.

[7] A consideration of those matters is to be directed to the personal characteristics of the proposed permit holder and is necessarily concerned with, in this case, “the suitability of Mr Hanlon to properly discharge the functions and exercise the rights and privileges associated with the holding of an entry permit under the Act”.

[8] According to the declarations filed by CFMEU in support of the application for the grant of a permit to the proposed permit holder (the Declarations), Mr Hanlon:

● has completed appropriate training about the rights and responsibilities of a permit holder (s.512(1)(a)) (30 May 2017);

● has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);

● has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act;

● has not had any entry permit issued under Part 3 – 4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s.513(1)(e) of the Act);

● has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that they held under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(i) of the Act); and

● has not 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 a State or Territory occupational health and safety law (s.513(1)(f)(ii) of the Act).

[9] I accept that this information as disclosed in the Declarations concerning these matters is accurate and correct. I am satisfied, taking into account that which is said in Australian Salaried Medical Officers Federation at [17] – [37] about assessing whether training undertaken was appropriate training, that the training undertaken by Mr Hanlon is appropriate training about the rights and responsibilities of a permit holder. Mr Hanlon received training in relation to the rights and responsibilities of a permit holder under the Act on 30 May 2017, namely a structured course delivered as face to face instruction by the CFMEU’s Legal/Industrial Officer, Ms Sherri Hayward. As part of the training, Mr Hanlon completed a questionnaire regarding his understanding of the rights and responsibilities and received 20 out of 20 as evidenced by the letter dated 2 June 2017, provided with the application.

[10] I am also satisfied as to each of the other matters as set out in the Declarations and noted above. Each of these permit qualification matters, in this case, weighs in favour of a conclusion that Mr Hanlon, the proposed permit holder, is a fit and proper person to hold an entry permit under the Act.

Permit qualification matter – s.513(1)(d)

[11] In his declaration lodged in support of the application for a permit, Mr Hanlon has disclosed that in Darlaston v Parker [2010] FCA 771 and Darlaston v Parker (No 2) [2010] FCA 1382, he and the CFMEU were found to have contravened the Workplace Relations Act 1996 (WR Act) in December 2008 and that he and the CFMEU were ordered to pay a penalty in relation to the action taken by him. Specifically, Mr Hanlon had contravened the WR Act by failing to comply with a reasonable request by the occupier to undergo a site safety induction.

[12] The Court imposed a $2,500.00 penalty on Mr Hanlon. The Court took into account the personal references that were provided on behalf of Mr Hanlon by the then Mayor of Blacktown and the then local State Member.

[13] The contravention was the only occasion Mr Hanlon was found to have contravened an industrial law and to have imposed a penalty on him, and on the CFMEU by reason of his conduct.

[14] In proceeding before me, Mr Hanlon gave evidence 1 that he understands his obligations as a permit holder to comply with a reasonable occupational health and safety requirement when exercising both industrial and safety right of entry. Mr Hanlon says that he ensures that he undergoes site safety inductions when asked by the occupier and this shows an understanding of the law and is evidence of someone who has learned from his past. I accept this evidence.

[15] The passage of time is also relevant as the contravention disclosed occurred nearly 9 years ago and there is no evidence of any further contravening conduct engaged in by Mr Hanlon. That Darlaston v Parker was taken into account in assessing Mr Hanlon’s suitability to hold an entry permit is also relevant as is his apparent non-contravening behaviour since that time. So whilst the contravention found, and the penalty imposed, on Mr Hanlon and the CFMEU in Darlaston v Parker is a matter to be weighed in the balance against a conclusion as to fitness and propriety, the matters just mentioned militate against the significance of the weight to be attributed. On this basis, this matter alone is not sufficient to swing the balance when weighed with the other permit qualification matters.

Permit qualification matter – s.513(1)(g)

[16] Mr Hanlon has disclosed that he is currently involved proceedings in the Federal Circuit Court in Director of the Office of the Fair Work Building Industry Inspectorate v Brian Parker & Ors SYG2231/2015. In those proceedings, Mr Hanlon is alleged to have contravened ss. 500 and 503 of the Act and the imposition of penalties is sought. The matter is currently before the court with judgement reserved and a pending application for the CFMEU to be permitted to re-open its case to make further submissions. The allegations that are the subject of proceedings are denied and no findings have been made with respect to those allegations.

[17] In these circumstances it is not appropriate to take this matter into account and I do not do so. Self-evidently, if Mr Hanlon is found to have contravened the Act as alleged, further proceedings in this Commission will be convened to determine whether the permit I propose be issued, should be suspended or revoked for a period.

Views of the regulator

[18] The Australian Building and Construction Commissioner was made aware of the application but did not elect to make a submission or otherwise seek to be heard.

Conclusion

[19] Taking into account the permit qualification matters, I am satisfied for the reasons stated that Mr Hanlon is a fit and proper person to hold a right of entry permit.

[20] Accordingly I direct that an entry permit be issued to Mr Hanlon as soon as practicable.

DEPUTY PRESIDENT

Appearances:

Ms S Hayward, Legal/Industrial Officer for the Construction, Forestry, Mining and Energy Union.

Hearing details:

Sydney.

2017.

26 September.

 1   Exhibit 1, Witness Statement of Mr Rebel Brandon Hanlon, dated 19 September 2017

Printed by authority of the Commonwealth Government Printer

<Price code A, PR596376>