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

[2015] FWC 8523

[2015] FWC 8523

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
(RE2015/1658)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 9 DECEMBER 2015

Application for right of entry permit - Michael Preston.

[1] On 2 November 2015 an application was lodged for a right of entry permit for Mr Michael Preston.

[2] The application is by the Construction, Forestry, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch (the CFMEU). Mr Preston has been an official since November 2012. He is currently employed as Health and Safety Co-ordinator by the CFMEU in Sydney.

Legislative Provisions

[3] Under s.512 of the Fair Work Act 2009 (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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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.”

Compliance with s.512 and s.513

[6] Attached to the application is a declaration by Mr Parker, the New South Wales Divisional Branch Secretary that Mr Preston satisfies the “fit and proper person” test, as required by s.512. The declaration addresses each of the “permit qualification matters” set out in s.513(1) of the Act. Mr Preston’s declaration was in similar terms.

[7] The declarations refer to:

● The training undertaken by Mr Preston as required by s.513(1)(a).

● The fact that Mr Preston has not been convicted of an offence against an industrial law or been ordered to pay a penalty under an industrial law.

● The fact that Mr Preston has not been convicted of an offence specified by s.513(1)(c).

● That an entry permit held by the Applicant has not been cancelled, suspended or had conditions imposed on it.

● Mr Preston was a respondent, together with a number of CFMEU officials, to an application by the Lend Lease Group of companies, to deal with a right of entry dispute pursuant to s.505 of the Act. Senior Deputy President Watson settled this dispute by consent orders on 18 February 2015 (PR561155). These orders do not impinge on any of the permit qualification matters in s.513(1) which are summarised above.

● In CFMEU v First Solar (Australia) Pty Ltd SYG 1714/2015, it is alleged that Mr Preston had contravened s.493 and s.500 of the Act. No date of hearing has yet been set for this matter.

[8] Otherwise the declarations assert Mr Preston’s compliance with the matters contained in s.513(1).

Commission Proceedings

[9] The matter was listed for hearing on 27 November 2015.

[10] The CFMEU was represented by Mr P. Quinn. Mr Preston was also in attendance.

[11] Mr Preston’s current permit expires on 20 December 2015. The CFMEU also lodged an application to extend the current permit pursuant to s.516(2) which was listed at the same time (RE2015/1722).

[12] Mr Quinn and Mr Preston expanded on the matters contained in the declarations at the hearing. Mr Quinn presented written submissions as well which went to compliance with s.512 and s.513(1).

Conclusion

[13] I have considered the permit qualification matters revealed in the application and expanded upon at the hearing. There is nothing which prevents Mr Preston being considered “a fit and proper person”.

[14] Accordingly, I am satisfied that Mr Preston is a fit and proper person “as required by s.512.

[15] I therefore grant the application for an entry permit to Mr Preston pursuant to s.512.

[16] This decision will be referred to the Regulatory Compliance Branch of the Commission which will issue the new permit, subject to the return of the current permit. Given that this decision has been issued well before the expiry of the current permit, RE2015/1722 is redundant. I expect that a Notice of Discontinuance will be lodged by the CFMEU in relation to that matter.

DEPUTY PRESIDENT

Appearances:

P. Quinn with M. Preston for the CFMEU.

Hearing details:

2015

Sydney:

November 27.

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