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

[2015] FWC 7829

[2015] FWC 7829

The attached document replaces the document previously issued with the above code on 13 November 2015.

Correction to typographical error in paragraph [7]

Bronwyn Brown

Associate to Deputy President Lawrence

Dated: 13 November 2015

[2015] FWC 7829

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
(RE2015/1450)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 13 NOVEMBER 2015

Application for right of entry - Beau Morrison.

[1] On 28 September 2015 an application was lodged for a right of entry permit for Mr Beau Morrison.

[2] The application is by the Construction, Forestry, Mining and Energy Union -Construction and General Division, New South Wales Divisional Branch (the CFMEU). Mr Morrison is a new Organiser who has worked as a scaffolder in the construction industry for some years.

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 that Mr Morrison 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 Morrison’s declaration was in similar terms.

[7] The declarations refer to:

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

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

● As a new official, Mr Morrison has not previously held a right of entry permit.

● In February 2015, Mr Morrison was convicted under the New South Wales Crimes (Domestic and Personal Violence) Act 2007. He was given a good behaviour bond for a term of 12 months. The bond, it is submitted, is being fully complied with. The conviction arose from a domestic dispute that has been resolved.

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

Commission Proceedings

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

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

[11] Mr Quinn and Mr Morrison expanded upon the disclosed conviction. It was submitted that this was disclosure pursuant to s.513(g). It was denied that Mr Morrison’s conviction infringed s.513(c). It appears that this is the case. In any event, the CFMEU and Mr Morrison are to be commended for the disclosure.

Conclusion

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

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

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

[15] This decision will be referred to the Regulatory Compliance Branch of the Commission which will issue the new permit.

DEPUTY PRESIDENT

Appearances:

P. Quinn with B. Morrison for the CFMEU

Hearing details:

2015

Sydney:

November 9.

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