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

[2017] FWC 2585

[2017] FWC 2585

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.516 - Application to extend entry permit

Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
(RE2017/415)

DEPUTY PRESIDENT BINET PERTH, 11 MAY 2017

Anthony Robert Kong - Application to extend permit RE2013/1809.

[1] On 12 April 2017, the Construction, Forestry, Mining and Energy Union (CFMEU) lodged an application with the Fair Work Commission (FWC) seeking to extend the period of operation of the right of entry permit held by Mr Anthony Kong (Mr Kong) pursuant to section 516(2) of the Fair Work Act 2009 (FW Act).

[2] Section 516 provides:

“516 Expiry of entry permit

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

(a) at the end of the period of 3 years beginning on the day it is issued, or that period as extended under subsection (2);
(b) when the permit holder ceases to be an official of the organisation that applied for the permit.

(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 the 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
(b) the organisation 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] The right of entry permit currently held by Mr Kong (Old Permit) was issued on 16 May 2015 (RE2013/1809) and is due to expire on 16 May 2017.

[4] On 12 April 2017, the CFMEU lodged an application with the FWC for a new entry permit for Mr Kong pursuant to section 512 of the FW Act (RE2017/414). The Australian Building and Construction Commission (ABCC) has advised the FWC that the ABC Commissioner proposes to make submissions or intervene in this matter.

[5] In a decision issued on 7 March 2016 in The Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016 FWC 811] in relation to matter RE2014/1389, Deputy President Watson determined that the Old Permit be revoked and the issue of any new permit to Mr Kong be banned for a period of two years. Deputy President Watson’s decision has been appealed and the matter remitted to Vice President Catanzariti. The most recent hearing for this matter occurred on 27 March 2017, at the end of which Vice President Catanzariti reserved his decision.

[6] Given the limited period of time between the Application and the expiration of the Old Permit, the intervention of the ABCC and that the outcome in RE2014/1389 has not yet been determined, I am satisfied that the Old Permit is likely to expire before the FWC determines the Application.

[7] The CFMEU has not failed to comply with any request or requirement to provide information in relation to the Application.

[8] I am therefore satisfied that the requirements of section 516(2) and (4) of the FW Act have been satisfied.

[9] Matter RE2017/414, the Application for the New Permit, has been listed for hearing and determination on 19 July 2017.

[10] Pursuant to section 516 of the FW Act, Mr Kong’s Old Permit will be extended by three months or such earlier time as the Application is heard and determined. An order to this effect will be issued.

DEPUTY PRESIDENT

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