Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Builders' Labourers' Divisional Branch

[2013] FWCD 8874

[2013] FWCD 8874

DECISION

Fair Work Act 2009
s.516(2)—Application for extension of period right of entry permit
Construction, Forestry, Mining and Energy Union
(RE2013/1684)
MR ENRIGHT	MELBOURNE, 18 NOVEMBER 2013

[1] On 8 November 2013 an application dated 7 November 2013 was lodged by the Construction, Forestry, Mining and Energy Union (CFMEU) under s.516(2) of the Fair Work

Act 2009 (the Act) to extend the 3 year period of a permit to enter and inspect premises issued

to Mr Kane Pearson in matter RE2010/3822 on 19 November 2010.

[2]        Relevant provisions of s.516 of the Act provide that:

“(1) Unless it is revoked, an entry permit expires at the earlier of the following times:

(a) atthe end of the period 3 years beginning on the day it is issued, or that period as extended under subsection (2)...

(2) The FWC may extend the period of 3 years referred to in paragraph (1)(a) by a
specified period if:

(a)	the organisation that applied for the permit (the old permit) has applied for another entry permit for the permit holder; and
(b)	the application was made at least 1 month before the old permit would otherwise have expired under that paragraph; and
(c)	the FWC is satisfied that the old permit is likely to expire before FWC determines the application.

(3)	The period specified must not be longer than the period that the FWC considers necessary for it to determine the application.
(4)	The FWC must not extend the period under subsection (2) if:

(a) the FWC has requested or required the organisation or permit holder to provide copies of records or documents, or to provide any other information, in relation to the application; and

[2013] FWCD 8874

(b)	theorganisation or permit holder has not complied with the request or requirement; and
(c)	the FWC is satisfied that the organisation or permit holder does not have a reasonable excuse.”

[3]        To extend the period of the expiry of an entry permit I must be satisfied of the matters

set out in s.516(2).

[4] On 19 November 2010 Fair Work Australia issued a right of entry permit to Mr Pearson in matter RE2010/3822 (the old permit). In accordance with paragraph 516(1)(a) of the Act the old permit will expire on 19 November 2013.

[5] On 18 October 2013 an application was lodged by the CFMEU under s.512 of the Act for a new entry permit for Mr Pearson in matter RE2013/1638 (the new application). I am satisfied that the CFMEU applied for a new entry permit for Mr Pearson at least one month before the old permit is due to expire under paragraph 516(1)(a).

[6] The new application was accompanied by a declaration signed by Mr Pearson and a declaration signed by Mr David Hanna, the Secretary of the Queensland Builders' Labourers' Divisional Branch (the Divisional Branch) of the Construction and General Division of the CFMEU. Both declarations state that Mr Pearson has been ordered to pay penalties for breaches of the Building Construction Industry Improvement Act 2005 (Cth) (the BCII Act) and the Workplace Relations Act 1996 (the WR Act). Subsection 513(1) of the Act requires that these and any other relevant matters be considered when deciding whether Mr Pearson is a fit and proper person to hold an entry permit. I intend to ensure that these matters are given appropriate and thorough consideration. This consideration is unlikely to conclude before 19 November 2013. Consequently I am satisfied that the old permit is likely to expire before I complete my determination of the new the application.

[7] Section 516(4) is not relevant to the determination of this application because the Fair Work Commission has not requested nor required the organisation or permit holder to provide copies of records or documents, or to provide any other information, in relation to the application.

[8] I am satisfied that the requirements set out in paragraphs 516(2)(a) (b) and (c) of the Act have been met. Therefore I am able to extend the period that entry permit RE2010/3822 expires. Subsection 516(3) requires that the period must not be longer than considered necessary to determine the new application. In my view the new application will be finalised by 17 December 2013.

[9] Accordingly, I grant an extension to the expiry date of right of entry permit RE2010/3822 until 17 December 2013.

[10] I acknowledge receipt on 22 October 2013 of entry permit RE2010/3822. I return the permit to Mr Pearson with this decision.

[2013] FWCD 8874

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