Construction, Forestry, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch for an Entry Permit for Taylor, Darren

[2014] FWC 7209

[2014] FWC 7209

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 for an Entry Permit for Taylor, Darren
(RE2014/1066)

VICE PRESIDENT WATSON MELBOURNE, 16 OCTOBER 2014

Application by Construction, Forestry, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch for an entry permit for Darren Taylor - Factors to be taken into account when determining whether fit and proper person - Failure to disclose other relevant proceedings on foot - Entry permit granted - Fair Work Act 2009, ss. 512 and 513.

[1] This decision is an amended version of a decision given in transcript on 7 October 2014.

[2] The application before the Commission is made by the Construction, Forestry, Mining and Energy Union (the CFMEU) for the issue of a right of entry permit with respect to Mr Darren Taylor. The application is made under s.512 of the Fair Work Act 2009 (the Act). I have had the benefit of written submissions and further oral submissions today from counsel representing the applicant union and also counsel representing the Fair Work Building Industry Inspectorate.

[3] The submissions have dealt with the approach to construing s.512 of the Act and the application of that section to Mr Taylor based on narrow grounds. The major matter raised is that the application did not refer to other proceedings commenced by Lend Lease which seek the revocation of right of entry permits issued to Mr Taylor and certain other CFMEU officials.

[4] In terms of the approach to s.512, in my view it is clear that the section needs to be construed by reference to s.513 of the Act. Section 513 imposes a mandatory requirement to take into account certain factors that are mentioned in s.513. In my view, the factors are not an exhaustive list and any other matters that the Commission considers relevant can and should be taken into account. In my view, the proper way to construe these provisions is that there is a broad discretion, confined of course by the objects and the provisions of the Act and the objects and the provisions of the relevant Division and Part of the Act.

[5] The matters that are sought to be raised as relevant considerations going to the disclosure of relevant matters and the application of appropriate diligence in relation to training are matters which are relevant to the Commission’s consideration in this matter. I do not consider that s.513 should be read down to exclude considerations of those matters.

[6] I have considered the matters that have been raised as bearing on the conclusion as to whether Mr Taylor is a fit and proper person to hold a right of entry permit. In all of the circumstances, I am satisfied that he is a fit and proper person to hold the entry permit. In reaching that conclusion, I acknowledge the significance of the points raised by the Fair Work Building Industry Inspectorate and I consider that there should have been disclosure of the proceedings that were on foot in relation to Mr Taylor and the potential consequences of those proceedings. I consider that it is appropriate to describe the requirement to disclose that material as a duty and that there was a failure in that regard by the applicant organisation and Mr Taylor to draw the attention of the Commission to those matters in the application that was made.

[7] I also acknowledge that the undertaking of training at the time it was undertaken is a matter of some relevance, although I do not consider that is of the same level of significance as the disclosure of the other proceedings.

[8] I have had regard to those matters. I also note the timing of the application which was made in June of this year, the declaration that appears to be signed and dated 16 May of this year by Mr Taylor, and the increased attention to these considerations that has occurred in more recent times. I also note that none of the negative circumstances in s.513 of the Act are applicable to Mr Taylor and that he has now, perhaps belatedly, undertaken training of an acceptable nature. In all of the circumstances, I do not believe that the deficiencies in disclosure are sufficient to lead to a finding that Mr Taylor is not a fit and proper person to hold the entry permit.

[9] I emphasise, however, that in different circumstances and having regard to what has transpired in these proceedings and perhaps others, there may be alternative views taken in future cases where similar deficiencies are revealed.

[10] The application for a right of entry permit to be issued to Mr Taylor is granted.

VICE PRESIDENT WATSON

Appearances:

Mr I. Latham for the Construction, Forestry, Mining and Energy Union.

Mr E. Young for Fair Work Building Industry Inspectorate

Hearing details:

2014.

Sydney.

7 October.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR556525>