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

[2014] FWCD 2551

[2014] FWCD 2551

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit
Construction, Forestry, Mining and Energy Union
(RE2014/642)
MR ENRIGHT	MELBOURNE, 8 JULY 2014
Background

[1] On 11 March 2014, an application under s. 512 of the Fair Work Act 2009 (the Act) dated 28 February 2014 was lodged in the Fair Work Commission (the Commission) by the Construction, Forestry, Mining and Energy Union (CFMEU) for a permit to enter and inspect premises for the following official of the CFMEU:

Bradley Upton: RE2014/642

[2] I acknowledge receipt on 11 March 2014 of a permit returned to the Commission by Mr Upton in matter RE2010/3968.

[3] The application was supported by declarations from Mr Michael Buchan, the relevant Committee of Management member, and Mr Bradley Upton, the proposed permit holder, both dated 28 February 2014 (the declarations). Mr Buchan is the Secretary of the WA Divisional Branch (the Divisional Branch) of the Construction and General Division of the CFMEU. Mr Upton is an Organiser within the Divisional Branch of the CFMEU.

[4]        The declarations disclose that:

 Mr Upton was found to have contravened section 38 of the Building and Construction Industry Improvement Act 2005 (the BCII Act) and section 41 of

the Workplace Relations Act 1996 (the WR Act) in matter Australian Building

& Construction Commissioner v Abbott (No.4) [2011] FCA 950 (ABCC v

Abbott)[1];

[1]Australian Building & Construction Commissioner v Abbott (No 4) [2011] FCA 950 (22 August 2011)

	A condition was imposed upon a permit issued to Mr Upton as a result of an Order issued by Senior Deputy President Lacy on 18 November 2008[2]
(Radisich v CFMEU); &
	Conditions were imposed on a permit issued to Mr Upton as a result of an order issued by Deputy President McCarthy on 29 April 2013[3](Bechtel v
CFMEU).

[2]Jeff Radisich v Michael Buchan and Doug Heath and Walter Molina and Construction, Forestry, Mining and Energy Union

[3]Bechtel (Western Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union-Western Australia Branch [2013]

[2014] FWCD 2551

Submissions

[5] On 12 March 2014 the Fair Work Building & Construction (the FWBC) requested a copy of Mr Upton’s application but no written submissions were lodged for this matter.

Legislative framework

[6] Under s.512 of the Act, the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a “fit and proper person” to hold an entry permit. In deciding this, the Commission must take into account the “permit qualification matters” set out in s.513(1).

[7]        Section 513(1) of the Act is set out below:

“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

[2014] FWCD 2551

(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.”

[8] Sections 512–513 are within Part 3–4 of the Act, entitled ‘Right of Entry’. The objects of Part 3–4 are set out at s.480:

“480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work,

information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business
without undue inconvenience.”

[9] In Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[4], Delegate Nassios made the following observations

[4][2011] FWAD 3518.

regarding the objects of Part 3–4 of the Act with respect to an application for an entry permit:

“[21] The objects of Part 3-4 are set out in section 480 of the Act. The object of right of entry provisions is to establish a framework for officials of organisations to enter premises while balancing competing rights of organisations, employees and occupiers/employers. Organisations have the right to represent their members in the workplace, to hold discussions and to investigate suspected contraventions of relevant laws. Balanced against these rights are the rights of occupiers and employers ‘to go about their business without undue inconvenience’. The objects set out in section 480 of the Act emphasise the mutual rights and responsibilities of participants in the system in much the same way as the objects under the Workplace Relations Act 1996. Earlier decisions regarding the granting of right of entry permits under the Workplace Relations Act 1996 have made reference to the ‘important contextual issue’ of the nature of the power that is exercised by permit holders. In Vivienne Daniels v Joe Patti

& Anor, Munro J observed that:

Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility, and avoidance of unnecessary obstruction in the exercise of

[2014] FWCD 2551

the powers under Division 11A are not only to be expected, they are a statutory
condition of the powers being retained.

The observations of Munro J apply equally to the granting of right of entry permits under the legislative regime set out in the Fair Work Act 2009.”[5](endnotes omitted)

[5]Ibid at [21].

[10] Although I am not bound by the above views I find they are a useful context for considering an application for an entry permit.

Permit Qualification Matters

[11] Section 512 of the Act provides that, upon application by an organisation, the Commission may issue an entry permit to an official of that organisation if it is satisfied that the official is a “fit and proper person to hold the entry permit”. Thus, the task of the Commission in the present matter is to consider and determine whether Mr Upton is a “fit and proper person” not in a universal sense entirely divorced from any context but specifically whether he is a “fit and proper person” to hold an entry permit. As observed by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380:

“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 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 an 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.”

[12] Therefore, the determination of whether a particular official is a “fit and proper person” to hold an entry permit for the purposes of section 512 of the Act is required to be made by having regard to the nature of the statutory right of entry powers potentially provided to the official pursuant to Part 3-4 of the Act, the activities that the official will be engaged in when exercising such powers and the ends to be served by such activities. As the Full Bench of the Commission in The Maritime Union of Australia [2014] FWCFB 1973 (The Maritime

Union of Australia [2014]) observed:

“The question of whether an officer is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. These are all to be found in Part 3-4 of the Act”.[6]

[6]The Maritime Union of Australia [2014] FWCFB 1973 at [25].

[13] Section 513(1) of the Act provides that, in order to make the primary determination required to be made pursuant to s. 512 of the Act, the Commission must take into account the “permit qualification matters” listed at paragraphs (a) to (g) therein. Although several of those matters do not directly relate to statutory right of entry powers, the Commission is bound to

[2014] FWCD 2551

take them into account and apply them in a manner that assists the Commission in
determining whether a particular official is a “fit and proper person” to hold an entry permit.

[14] I will consider each of the “permit qualification matters” separately below as they pertain to the current matter before me.

Training about rights and responsibilities

[15] Section 513(1)(a) of the Act requires me to take into account whether Mr Upton has received appropriate training about the rights and responsibilities of a permit holder. Mr Upton undertook training on 25 February 2014. The content of the training material was previously approved by, then, Fair Work Australia. I am satisfied Mr Upton has undertaken adequate training.

Conviction/s against an industrial law

[16] Section 513(1)(b) of the Act requires me to take into account whether Mr Upton has ever been convicted of an offence against an industrial law. The declarations do not disclose any such convictions against Mr Upton. There is no other evidence before me that suggests otherwise.

Conviction/s involving fraud, dishonesty or intentional use of violence

[17] Section 513(1)(c) of the Act requires me to take into account whether Mr Upton has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. The declarations do not disclose any such convictions against Mr Upton. There is no other evidence before me that suggests otherwise.

Order/s to pay a penalty under an industrial law in relation to action taken by the official

[18] Section 513(1)(d) of the Act requires me to have regard to whether Mr Upton, or any other person, has ever been ordered to pay a penalty under the Act or any other industrial law, in relation to action taken by Mr Upton. As noted in paragraph [4] of this decision, Mr Upton and the CFMEU were found to have contravened section 38 of the BCII Act and section 41 of the WR Act, however on appeal, a Full Court of the Federal Court of Australia dismissed the Australia Building and Construction Commission’s (the ABCC) claims against Mr Upton and the CFMEU[7]. There is no other evidence before me that suggests otherwise.

Permit/s revoked, suspended or made subject to conditions under Commonwealth law

[7]Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (as successor

[19] Section 513(1)(e) of the Act requires me to take into account whether a permit issued to Mr Upton under Part 3–4 of the Act, or under a similar law of the Commonwealth (no matter when in force), has been revoked, suspended or made subject to conditions. The declarations disclose that a condition was imposed upon a permit issued to Mr Upton as a result of an Order issued by Senior Deputy President Lacy on 18 November 2008. The declarations also disclose that a condition was imposed upon a permit issued to Mr Upton as a result of an order issued by Deputy President McCarthy on 29 April 2013. These matters will be considered in further detail below.

[2014] FWCD 2551

Right of entry revoked, suspended or made subject to conditions or a disqualification imposed under State or Territory industrial law or State or Territory OHS law

[20] Section 513(1)(f) of the Act requires me to take into account whether a court, or other person or body, under a State or Territory industrial law or State or Territory occupational health and safety (OHS) law has cancelled, suspended or imposed conditions on a right of entry for industrial or OHS purposes that Mr Upton had under that law or disqualified Mr Upton from exercising, or applying for, a right of entry for industrial or OHS purposes under that law. The declarations do not disclose any cancellation, suspension or imposition of conditions on a right of entry Mr Upton has held for industrial or OHS purposes by any court, or other person or body, under a State or Territory industrial law or an OHS law. Further, the declarations do not disclose that Mr Upton has been disqualified by any court, or other person or body, under a State or Territory industrial law or an OHS law, from exercising, or applying for, a right of entry for industrial or OHS purposes. There is no other evidence before me that suggests otherwise.

Any other matter the Commission considers relevant

[21] Section 513(1)(g) of the Act provides the Fair Work Commission with a broad discretion to take into account any other matters it considers relevant. This discretion is limited to a consideration of matters that pertain to a proposed permit holder’s status as a “fit and proper person” to hold an entry permit. The proper construction should be determined by examining the provision in the context of the Act as a whole and the specific considerations set out in subsections 513(1)(a)-(f) of the Act in particular in the sense that such matters must fall within the purview of relevance delineated by the subject, scope and purpose of the Act, particularly Part 3-4 of the Act.[8]Relevant considerations in this regard include whether a

[8]Santos Ltd v Saunders (1988) 49 SASR 556.

particular matter has an industrial or OHS “flavour” or context, the extent to which it raises issues analogous to the considerations set out in subsections 513(1)(a)-(f) of the Act and its pertinence to the exercise of the public right associated with the exercise of statutory right of entry powers pursuant to Part 3-4 of the Act.

[22]      In this regard, I have also taken into consideration the objects of Part 3-4 of the Act.

Consideration

[23] My task in the present matter is to determine whether Mr Upton is a “fit and proper person” to hold the entry permit for which application is made taking into account the nature of the powers that are bestowed pursuant to the grant of such a permit within the statutory regime set out in Part 3-4 of the Act, the activities that he will potentially be engaged in when exercising such powers and the ends to be served by such activities. In order to make this determination, I must take into account the “permit qualification” matters set out in paragraphs (a) to (g) of section 513(1) of the Act. Those matters are to be taken into account and applied in a way that assists me in determining whether Mr Upton is a “fit and proper person to hold the entry permit”.

[24] I have carefully considered all of the available circumstances of this matter and have had particular regard to the permit qualification matters for the purposes of s.512 of the Act.

[25] I have taken into account the fact that no penalty was imposed upon Mr Upton or the CFMEU in ABCC v Abbott.

[2014] FWCD 2551

[26] I have taken into account the fact Mr Upton had a condition imposed upon previous permit RE2008/2153. In permit RE2008/2153, Mr Upton was issued with a Limiting Condition on 25 November 2008. I have taken into account the fact that the Limiting Condition was imposed upon all members of the CFMEU, Construction and General Division, West Australian Divisional Branch, and not upon Mr Upton as a result of action undertaken by Mr Upton.

[27]      I have also taken into account the fact Mr Upton had a condition imposed upon him in

Bechtel v CFMEU in matter RE2013/536. In Bechtel v CFMEU, DP McCarthy of the

Commission found that Mr Upton had not complied with his obligations in relation to his rights exercisable under the Act at a project site near Onslow in Western Australia. Consequently, DP McCarthy issued an Order that Mr Upton not be permitted to exercise his right of entry at the project site before 1 January 2014, and that from 1 January 2014 until the completion of the project site, Mr Upton is to comply with ‘reasonable directions’ given by authorised representatives of Bechtel.

[28] There is no evidence or material before me which provides any basis for concluding

that Mr Upon either exercised his right of entry prior to 1 January 2014 at the project site or
that he did not thereafter comply with the condition imposed.

[29] Another relevant consideration includes the role Mr Upton performs as an Organiser of the CFMEU including the provision of advice, support and assistance to its members. This is relevant to the objects set out in s.480(a)–(b) of the Act in relation to the rights of registered organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions and the rights of employees to receive information and representation from officials of such organisations.

[30] I have also taken into account the fact that Mr Upton has been a permit holder under

the Act and its predecessor legislation, and an organiser of the CFMEU and The Construction,
Forestry, Mining and Energy Union of Workers (the CFMEUW), since 7 March 2008.

Conclusion

[31] Having carefully considered all of the available circumstances of this matter and having particular regard to the permit qualification matters for the purposes of s.512 of the Act, I have concluded that I am satisfied that Mr Upton is currently a “fit and proper person” to hold an entry permit and I grant a right of entry permit to Mr Upton.

[2014] FWCD 2551

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Endnotes

[2008] AIRC 324 (18 November 2008)

FWC 2498 (26 April 2013)

to the Australia Building and Construction Commissioner)[2012] FCAFC 178 (6 December 2012)