Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Construction Workers Divisional Branch

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for an extension of a right of entry permit issued to Mr Anthony Robert Kong. The permit, originally issued on 17 February 2011, was due to expire on 17 February 2014. The application for the extension was made under section 516(2) of the Fair Work Act 2009. The CFMEU sought to extend the permit until the Commission could determine a new application for an entry permit for Mr Kong, which was lodged on 17 December 2013.

The key legal issue before the Commission was whether the requirements of section 516(2) of the Act were satisfied to allow for the extension of the entry permit. The Act specifies that a permit may be extended if an application for a new permit has been made at least one month before the existing permit expires, and if the Commission is satisfied that the existing permit will expire before the new application is determined. Additionally, the Commission must ensure that the extension period is no longer than necessary for the determination of the new application. The Commission also needed to consider whether any failure to provide requested information had occurred, which would prevent the extension from being granted.

The Commission determined that the CFMEU had made the application for the new permit within the required timeframe and that the existing permit was likely to expire before the new application could be determined. There was no failure to provide requested information, thus section 516(4) of the Act did not apply. The Commission concluded that the new application would likely be finalised by 17 March 2014, and therefore granted an extension to the expiry date of the existing permit to 17 March 2014. The permit was returned to Mr Kong with the decision.

The Commission granted an extension to the expiry date of the right of entry permit RE2011/2617 to 17 March 2014. The permit was returned to Mr Kong with this decision.