Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch (John Ayers)

[2015] FWC 4237

[2015] FWC 4237

The attached document at page 1 replaces the document previously issued with the above code on 23 June 2015 to amend a typographical error in the heading (“Ayres” to “Ayers”).

Associate to Deputy President Gostencnik

Dated 23 June 2015

[2015] FWC 4237

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch (John Ayers)
(RE2015/501)

Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch (John Duggan)
(RE2015/503)

Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch (Ian Markham)
(RE2015/504)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 23 JUNE 2015

Applications for right of entry permit; notice by the Director of Fair Work Building Industry Inspectorate to make submissions; Entry permits granted.

Introduction and background

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has applied to the Fair Work Commission (Commission) pursuant to s.512 of the Fair Work Act 2009 (Act) for the issue of an entry permit to each of John Ayers, John Duncan, Ian Markham and Colin Flanagan. The application for the issue of a permit to Mr Flanagan has since been discontinued by the CFMEU. Each of the remaining proposed permit holders is an official of the CFMEU and employed by that organisation as an organiser.

[2] The Director of the Fair Work Building Industry Inspectorate (Director) gave notice to the Commission that he wished to make submissions in relation to each applications. For convenience, the applications were dealt with together and directions for the filing of submissions and evidence in respect of each application were made on 21 April 2015. The applications were listed for hearing on 22 June 2015.

[3] On 12 May 2015 the Director filed submissions in which the Director maintained that given changes to right of entry laws since March 2012, the proposed permit holders had not received appropriate training about the rights and responsibilities of a permit holder. This was because each permit holder had last undertaken training about those rights and responsibilities in April 2012. Consequently none of the proposed permit holders could be said to have a good understanding of the privileges and obligations arising from being a permit holder under Part 3 – 4 of the Act given amendments to the Act since training was last undertaken.

[4] On 2 June 2015 the CFMEU produced material showing that each of the proposed permit holders had completed a more recent course of training about the rights and responsibilities of a permit holder. Mr Ayers and Mr Duggan had each completed a course of training on 26 May 2015 and Mr Markham completed a course of training on 27 May 2015. On 16 June 2015 the Director filed further submissions in which he indicated that as the proposed permit holders had since undertaken additional right of entry training, the Director no longer took issue about the appropriateness of the training undertaken by these officials and did not wish to be heard further in relation to the applications.

[5] Consequently I have decided to deal with the applications without the need to conduct a hearing.

Relevant statutory provisions and application

[6] Subdivision A, Division 6 of Part 3 – 4 of the Act contains provisions dealing with entry permits. So far as is relevant for present purposes these provide as follows:

512 FWC may issue entry permits

The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.

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.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

514 When the FWC must not issue permit

The FWC must not issue an entry permit to an official at a time when a suspension or disqualification, imposed by a court or other person or body:

(a) applies to the official’s exercise of; or
(b) prevents the official from exercising or applying for;
a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory OHS law.

515 Conditions on entry permit

(1) The FWC may impose conditions on an entry permit when it is issued.
(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.
(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).
(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.
(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).

[7] In Maritime Union of Australia v Fair Work Commission 1 a Full Court of the Federal Court Australia recently considered the question of whether a person is a fit and proper person in the context of the right of entry regime established by Part 3 – 4 of the Act. The Court observed the following:

Although the questions for resolution may be stated simply, it is important to recognise at the outset that Part 3-4 of the Fair Work Act fundamentally modifies common law rights.

A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union(1987) 18 FCR 51 at 61 to 62 thus observed:

The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.

See also: Lane v Arrowcrest Group Pty Ltd(1990) 27 FCR 427 at 439 to 440 per von Doussa J.

Section 480, extracted at [8] above, sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.

It is thus not surprising that the legislature has confined the category of persons who may be clothed with such powers to those persons who are “fit and proper”.

The phrase a “fit and proper person” is used in many different statutory contexts: e.g., Customs Act1901(Cth), ss 67H, 102CF; Migration Act1958 (Cth), s 290; Marriage Act1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase “fit and proper person” by expressly including a reference to whether an individual is of “good fame, integrity and character...”: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:

The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 2

[8] The Court ultimately concluded that when the Commission is deciding whether to issue an entry permit pursuant to s.512 of the Act, those considerations relevant to the exercise of the power are not confined (for example) to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the Commission – at least initially. However the prospect remains for judicial review founded upon (for example) alleged unreasonableness. 3

[9] The Court also concluded that conditions may be imposed pursuant to s.515 to remedy or address deficiencies or reservations in respect to a proposed permit holder, which deficiencies or reservations could otherwise lead to the conclusion that the person was not fit and proper. 4

Consideration

[10] I turn to consider each application.

John Ayers

[11] Mr Ayers is an organiser employed by the CFMEU. He has previously had a right of entry permit issued to him on 11 April 2012 (RE2012/878). Pursuant to s.117 of the Act, that entry permit was returned to the Commission by Mr Ayers on 17 April 2015. On 26 May 2015 Mr Ayers completed an approved training course conducted by the Australian Council of Trade Unions (ACTU) Organising Centre dealing with Federal right of entry laws.

[12] Declarations filed by Mr Ayers and by the CFMEU Branch Secretary in support of the application for the grant of a permit to Mr Ayers, state that Mr Ayers has never:

• Been convicted of an offence against an industrial law;



• Been convicted of an offence against a law of the Commonwealth, state, a territory or a foreign country, involving:



• Entry onto premises; or



• Fraud or dishonesty; or



• Intentional use of violence against another person or intentional damage or destruction of property;



• Been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by him, nor has the CFMEU or any other person been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by him;



• Had any permit issued to him under part 3 – 4 of the Act, or under a similar law of the Commonwealth (no matter when in force), revoked or suspended or made subject to conditions;



• Had:



• Cancelled, suspended or imposed conditions on a right of entry permit for industrial or occupational health and safety purposes that he has held under a State or Territory industrial law or State or Territory OHS law; or



• Been disqualified from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

by a court, or other person or body acting under a state or territory industrial law or State or Territory occupational safety law.

[13] There being no other information to the contrary I accept the evidence set out in the above-mentioned declarations.

[14] I note that Mr Ayers has previously held an entry permit and there is no evidence that he conducted himself inappropriately or misused the rights conferred on him by the entry permit. I am not aware of any other relevant matter that should be taken into account and I note that the Director does not submit that any other matter should be taken into account.

In the circumstances I am satisfied that Mr Ayers is a fit and proper person to hold an entry permit and I do not need to consider the imposition of any conditions pursuant to s.515 of the Act. The application for a permit to be issued to Mr Ayers is granted.

John Duggan

[15] Mr Duggan is an organiser employed by the CFMEU. He has previously had a right of entry permit issued to him on 11 April 2012 (RE2012/882). Pursuant to s.117 of the Act, that entry permit was returned to the Commission by the Mr Duggan on 17 April 2015.

On 26 May 2015 Mr Duggan completed an approved training course conducted by the ACTU Organising Centre dealing with Federal right of entry laws.

[16] Declarations filed by Mr Duggan and by the CFMEU Branch Secretary in support of the application for the grant of a permit to Mr Duggan, state that Mr Duggan has never:

• Been convicted of an offence against an industrial law;



• Been convicted of an offence against a law of the Commonwealth, state, a territory or a foreign country, involving:



• Entry onto premises; or



• Fraud or dishonesty; or



• Intentional use of violence against another person or intentional damage or destruction of property;



• Been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by him, nor has the CFMEU or any other person been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by him;



• Had any permit issued to him under part 3 – 4 of the Act, or under a similar law of the Commonwealth (no matter when in force), revoked or suspended or made subject to conditions;



• Had:



• Cancelled, suspended or imposed conditions on a right of entry permit for industrial or occupational health and safety purposes that he has held under a State or Territory industrial law or State or Territory OHS law; or



• Been disqualified from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

by a court, or other person or body acting under a State or Territory industrial law or state or territory occupational safety law.

[17] There being no other information to the contrary I accept the evidence set out in the above-mentioned declarations.

[18] I note that Mr Duggan has previously held an entry permit and there is no evidence that he conducted himself inappropriately or misused the rights conferred on him by the entry permit. I am not aware of any other relevant matter that should be taken into account and I note that the Director does not submit that any other matter should be taken into account.

In the circumstances I am satisfied that Mr Duggan is a fit and proper person to hold an entry permit and I do not need to consider the imposition of any conditions pursuant to s.515 of the Act. The application for a permit to be issued to Mr Duggan is granted.

Ian Markham

[19] Mr Markham is an organiser employed by the CFMEU. He has previously had a right of entry permit issued to him on 11 April 2012 (RE2012/884). Pursuant to s.117 of the Act, that entry permit was returned to the Commission by the Mr Markham on 17 April 2015. On 27 May 2015 Mr Markham completed an approved training course conducted by the ACTU Organising Centre dealing with Federal right of entry laws.

[20] Declarations filed by Mr Markham and by the CFMEU Branch Secretary in support of the application for the grant of a permit to Mr Markham, state that Mr Markham has never:

• Been convicted of an offence against an industrial law;



• Been convicted of an offence against a law of the Commonwealth, state, a territory or a foreign country, involving:



• Entry onto premises; or



• Fraud or dishonesty; or



• Intentional use of violence against another person or intentional damage or destruction of property;



• Been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by him, nor has the CFMEU or any other person been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by him;



• Had any permit issued to him under part 3 – 4 of the Act, or under a similar law of the Commonwealth (no matter when in force), revoked or suspended or made subject to conditions;



• Had:



• Cancelled, suspended or imposed conditions on a right of entry permit for industrial or occupational health and safety purposes that he has held under a State or Territory industrial law or State or Territory OHS law; or

• Been disqualified from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

by a court, or other person or body acting under a State or Territory industrial law or state or territory occupational safety law.

[21] There being no other information to the contrary I accept the evidence set out in the above-mentioned declarations.

[22] I note that Mr Markham has previously held an entry permit and there is no evidence that he conducted himself inappropriately or misused the rights conferred on him by the entry permit. I am not aware of any other relevant matter that should be taken into account and I note that the Director does not submit that any other matter should be taken into account.

In the circumstances I am satisfied that Mr Markham is a fit and proper person to hold an entry permit and I do not need to consider the imposition of any conditions pursuant to s.515 of the Act. The application for a permit to be issued to Mr Markham is granted.

Conclusion

[23] I am satisfied that each of John Ayers, John Duggan and Ian Markham is a fit and proper person to hold an entry permit. The applications made by the CFMEU for the issue of an entry permit pursuant to s.512 of the Act to Mr Ayers, Mr Duggan and Mr Markham are granted. An entry permit will be issued separately to Mr Ayers, Mr Duggan and Mr Markham.

DEPUTY PRESIDENT

 1   [2015] FCAFC 56

 2   Ibid at [13]-[17]

 3   Ibid at [42]

 4   Ibid at [43]

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