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

[2016] FWC 1525

[2016] FWC 1525

FAIR WORK COMMISSION

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
(RE2015/1508)

VICE PRESIDENT WATSON MELBOURNE, 11 MARCH 2016

Application by Construction, Forestry, Mining and Energy Union, Construction and General Division, New South Wales Branch for an entry permit for Robert Kera – Factors to be taken into account when determining whether fit and proper person – Fair Work Act 2009, ss.512 and 513.

Introduction

[1] This matter involves an application by Construction, Forestry, Mining and Energy Union, Construction and General Division, New South Wales Branch (CFMEU) under s.512 of the Fair Work Act 2009 (the Act) for an entry permit for Mr Robert Kera. Mr Kera is the Divisional Branch Assistant Secretary of the NSW Divisional Branch of the CFMEU and is therefore an official of the CFMEU.

[2] In accordance with s.74(a) of the Fair Work (Building Industry) Act 2012 the Director of the Fair Work Building Industry Inspectorate (FWBC) was notified of the lodgement of the initial application and the amended application. The Director did not advise of an intention to make submissions in relation to the matter.

Legislative Provisions

[3] Under s.512 of the Act, the Fair Work Commission (the Commission) may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a "fit and proper person" to hold an entry permit. In deciding this, the Commission must take into account the "permit qualification matters" set out in s.513(1).

[4] Section 513(1) of the Act is set out below:

“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."

[5] Sections 512–513 are within Part 3–4 of the Act, entitled 'Right of Entry'. The objects of Part 3–4 are set out at 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."

[6] A Full Bench of the Commission has described these tasks in the following manner 1:

“[23] As is apparent from the above, the relevant question, in determining whether the Commission is permitted to exercise the discretion to issue an entry permit to an official of an organisation under s.512, is whether the official “is a fit and proper person to hold an entry permit”. The description “fit and proper person” in s.512 is not defined and standing alone, it carries no precise meaning. Generally though, the description is used as a measure of suitability to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. However, the description will take its meaning from its context, from the activities in which the person to be assessed is or will be engaged and the ends to be served by those activities. 2 Taking into account context, the structure of s. 512 and the activities to be engaged in by an official if an entry permit will issue, it seems to us clear that that description is to be applied by reference to the suitability of the official “to hold the entry permit”.

[24] The permit qualification matters in s.513, which must be taken into account in deciding whether an official is a fit and proper person, must therefore be considered and applied in a way that assists in answering the question posed by s.512, namely whether the official “is a fit and proper person to hold the entry permit”. The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se. Rather the permit qualification matters must be taken into account to decide whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.
[25] A holder of an entry permit is empowered to exercise entry rights and rights associated with entry, such as inspections and employee interviews. Those rights are exercisable subject to conditions, such as notice and purpose. They are also subject to limitations, such as on times for entry and places for interview, and responsibilities such as complying with site occupational health and safety requirements and not hindering or obstructing a person. The question of whether an officer is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. These are all to be found in Part 3-4 of the Act.”

[7] In this matter the CFMEU has made submissions relating to each of the factors in s.513(a)–(g). The scope of paragraph (g) has been described by a Full Bench as follows 3:

“[24] … Paragraph (g) requires the Commission to take into account any other matters which it considers to be relevant. It is not necessary to apply the eiusdem generis presumption to conclude that the relevance referred to in paragraph (g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.

[25] A matter is only required to be taken into account under s.513(1)(g) if the Commission “considers” it to be relevant - that is, the requirement operates upon the opinion as to relevance formed by the Commission.”

Permit Qualification Matters

[8] The applications contained a declaration from each of Mr Parker, Divisional Branch Assistant Secretary, and Mr Kera concerning the permit qualification matters set out in s.513 of the Act. The CFMEU supplemented the declarations with submissions in support of the application.

[9] The CFMEU submits that Mr Kera has satisfied the requirement in s.513(a) of the Act as he received training in relation to the rights and responsibilities of a permit holder by participating in a structured course using training material approved by the Commission. Further, it submits that Mr Kera has also undergone entry permit training for the Work Health and Safety Act 2011, and has obtained a Work Health and Safety Permit.

[10] The CFMEU submits that the Commission should place considerable weight on the fact that Mr Kera has not been convicted of an offence against an industrial law. It notes that in the matter of Darlaston v Parker, 4 Mr Kera was found to have contravened s.758(3) of the Workplace Relations Act 1996 (WR Act) by failing to undergo a safety induction as requested on 3 December 2008. However, it submits that this matter should not be taken into consideration in relation to the factor in s.513(b), as a contravention of a civil remedy provision is not an offence.

[11] The CFMEU submits that Mr Kera has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country in the nature of that referred to in s.513(1)(c) and that the Commission should place considerable weight on this fact.

[12] The CFMEU notes that Mr Kera and the Union have been ordered to pay a penalty under the WR Act in relation to action taken by Mr Kera in the case of Darlaston v Parker.  5 It notes that, however, in proceedings pursuant to s.510 of the Act, in the case of Parker and Others6, Fair Work Australia (as it then was) did not suspend Mr Kera’s right of entry permit. The CFMEU submits that the Commission should place considerable weight on the fact that Mr Kera did not have his permit suspended. Nor has his permit been subject to conditions as a result of the imposition of the penalty.

[13] The CFMEU notified the Commission of a number of matters concerning the factor in s.513(e), whether a permit issued to the official has been revoked or suspended or made subject to conditions.

[14] One such matter is Lend Lease Building Pty Ltd T/A Lend Lease; Lend Lease Building Contractors Pty Ltd (formerly Baulderstone Pty Ltd) T/A Lend Lease; Lend Lease Engineering Pty Lrd (formerly Abigroup Contractors Pty Ltd) T/A Lend Lease v CFMEU, CEPU & Ors, in which Mr Kera was a respondent to an application to deal with a right of entry dispute pursuant to s.505 of the Act. On 18 February 2015, Senior Deputy President Watson issued an order made by consent, binding all parties to the dispute in connection with entries onto building and engineering sites across Australia that are owned, operated or occupied by Lend Lease for the purposes of investigation of suspected contraventions of relevant legislation or instruments which relate to, or affect, CFMEU members; discussions with employees who work on the site are who are eligible to be members of the CFMEU; rights of entry under Part 3–4 of the Act; and/or the exercise of State or Territory OHS rights as defined in s.494 of the Act. 7

[15] In The Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union & Ors, an application was made by the Director of the Fair Work Building Industry Inspectorate (the Director) pursuant to s.508 of the Act concerning alleged misuse of rights exercisable under Part 3–4 of the Act. This matter relates to the same conduct referred to in the abovementioned s.505 matter, and named Mr Kera as one of the individual respondents. Following admissions of misuse concerning events on 1 April 2014, the Director, the CFMEU and Mr Kera agreed to a proposed order containing restrictions to be imposed on Mr Kera’s entry permit, subject to the views of the Commission.

[16] On 7 March 2016 I issued a decision 8 in which I found that the restrictions agreed to by the parties are appropriate and that I will make orders in line with the agreement reached, seven days after the date of the decision. The order agreed upon provides as follows in relation to Mr Kera:

“The Fair Work Commission, being satisfied that… Robert Kera [has] misused rights exercisable under Part 3–4 of the Fair Work Act 2009 (“the Act”) orders that:

…

3. Subject to Order 4, the entry permit held by Mr Kera under Part 3–4 of the Act is suspended for a period of 3 months.

4. Order 3 shall not take effect unless Robert Kera is ordered by a court of competent jurisdiction to pay a pecuniary penalty in relation to a contravention of the Act which occurs within 6 months of the date of this Order.”

[17] The CFMEU submits that it is significant that Mr Kera did not have his permit operationally suspended, revoked or made subject to conditions. The CFMEU further submits that the Commission should place considerable weight on the fact that Mr Kera has not had cancelled, suspended or had imposed conditions on a right of entry permit for industrial or occupational health and safety purposes.

[18] The Commission may consider any other matters that it considers relevant when determining whether to grant an application for an entry permit, pursuant to s.513(g) of the Act.

[19] The CFMEU contends that the Commission may have regard to matters such as knowledge, experience, honesty and demonstrated ability when determining the fitness and propriety of a proposed permit holder. It submits that Mr Kera has extensive knowledge of, and experience in the construction industry, as he has over 16 years’ experience as a builder’s labourer and during the last 5 years of this period, Mr Kera was also a Union Delegate. Further, demonstrating Mr Kera’s experience, the CFMEU notes that Mr Kera has been a union official since 2003, initially engaged as a State Organiser, and from 2011 as Divisional Branch Assistant Secretary. The CFMEU further notes that Mr Kera has previously held a number of entry permits under the Federal law.

[20] The CFMEU submits that there is a public interest in responsible union involvement in health and safety matters and in the process of the investigation and enforcement of industrial laws and instruments. It submits that a valid right of entry permit is important in allowing union officials to effectively carry out their role in these areas, as the absence of a Federal entry permit means that an official is unable to exercise a State or Territory OHS right or to exercise rights incidental to the investigation and enforcement process set out in the Act.

[21] Further in relation to ‘other relevant matters’ pursuant to s.513(g), the CFMEU notified the Commission of proceedings which are currently before the Federal Circuit Court. The CFMEU made an application against First Solar (Australia) Pty Ltd (First Solar) 9 in which it alleged that First Solar refused Mr Kera access to premises in contravention of s.501 of the Act. First Solar brought a cross claim alleging that Mr Kera had acted in contravention of ss.493 and 500 of the Act and constituted trespass. It is alleged that on 14 January 2015, Mr Kera acted improperly by entering a Camp which was used solely for residential purposes, without authority to do so, for the purpose of holding discussions with workers and then refusing to leave the Camp when asked to do so. The CFMEU advises that the proceedings are ongoing and no date for hearing has been set.

[22] The CFMEU also notified the Commission that by correspondence dated 9 August 2013, Mr Kera received a letter of caution from FWBC. It was determined that Mr Kera had contravened s.50 of the Act by contravening terms of the Lend Lease Project Management & Construction / CFMEU Joint Development Agreement Mark 8 2012-2016, in particular in relation to compliance with site rules and directions from site management, notification of the dispute and confirmation of such dispute in writing, and the requirement for work to continue without interruption or dislocation during discussion and resolution of disputes. It was decided that it was not in the public interest to commence legal proceedings against Mr Kera.

Conclusion

[23] I have considered all of the evidence and submissions in this matter and have concluded that Mr Kera is a fit and proper person to hold a permit. There have been some instances of inappropriate conduct. However I consider that Mr Kera has acknowledged the errors he has made, shown his knowledge of his responsibilities and demonstrated a commitment to ensure that future transgressions do not occur. All other requirements for a permit have been met. The application for a permit is granted.

VICE PRESIDENT

Final written submissions:

CFMEU on 9 March 2016.

 1   The Maritime Union of Australia [2014] FWCFB 1973.

 2   See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380.

 3   [2014] FWCFB 5947.

 4 [2010] FCA 771.

 5 [2010] FCA 771.

 6   [2011] FWA 2577.

 7   PR561155.

 8   [2016] FWC 811.

 9   Construction, Forestry, Mining and Energy Union v First Solar (Australia) Pty Ltd SYG1714/2015.

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