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

[2018] FWC 202

[2018] FWC 202

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch
(RE2017/1204)

DEPUTY PRESIDENT BINET PERTH, 10 JANUARY 2018

Application for right of entry permit for Troy Kingsley Smart – permit issued.

[1] On 16 October 2017, the Construction, Forestry, Mining and Energy Union (CFMEU) filed an application pursuant to section 512 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) for a right of entry permit for Mr Troy Kingsley Smart (Mr Smart). An amended application was filed on 20 October 2017 (Application).

[2] On 17 October 2017, the CFMEU filed an application, pursuant to section 516 of the FW Act, to extend Mr Smart’s current right of entry permit until this Application is determined.

[3] On 10 November 2017, the Australian Building and Construction Commission confirmed that it did not intend to make submissions in respect of, and/or intervene in, the Application.

[4] On 14 November 2017, an order (PR597650) was issued granting an extension of Mr Smart’s current right of entry permit until 27 February 2018, or until such earlier time as this Application is heard and determined.

[5] Directions were issued on 14 November 2017 requiring the CFMEU to file submissions, witness statements and evidence in support of the Application. The CFMEU was invited to advise Chambers whether it wished to make any oral submissions in addition to filing written materials.

[6] On 30 November 2017, the CFMEU advised that it did not wish to lead any oral evidence or make any oral submissions. Submissions in support of the Application were filed on 11 December 2017. The following witnesses provided affidavits in support of the Application:

● Mr Smart;

● Mr Lee Roadhouse, Project Manager at Lanskey Constructions Pty Ltd (Mr Roadhouse); and

● Mr Chris Holdich, Senior Project Manager at Built Pty Ltd (Mr Holdich).

A further affidavit affirmed by Mr Kevin Sneddon, Senior Lawyer at the CFMEU (Mr Sneddon), was filed on 10 January 2017.

Relevant Statutory Provisions

[7] The provisions concerning entry permits are found in Part 3-4 of the FW Act. The object of Part 3-4 is set out in section 480 of the FW Act:

“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.”

[8] In Maritime Union of Australia v Fair Work Commission (MUA v FWC) [2015] FCAFC 56, the Full Court of the Federal Court (North, Flick and Bromberg JJ) observed at [15]:

“Section 480 … 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.”

[9] Section 512 of FW Act states that:

“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.”

[10] In The Maritime Union of Australia [2014] FWCFB 1973 at [23], a Full Bench 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 FW Act and observed that:

“…the relevant question, in determining whether the Commission is permitted to exercise the discretion to issue an entry permit to an official of an organisation under s.512, is whether the official “is a fit and proper person to hold an entry permit”. The description “fit and proper person” in s.512 is not defined and standing alone, it carries no precise meaning. Generally though, the description is used as a measure of suitability to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. However, the description will take its meaning from its context, from the activities in which the person to be assessed is or will be engaged and the ends to be served by those activities. Taking into account context, the structure of s.512 and the activities to be engaged in by an official if an entry permit will issue, it seems to us clear that that description is to be applied by reference to the suitability of the official “to hold the entry permit”.

[11] Section 513(1) of the FW Act sets out the matters that are to be taken into account in determining whether a proposed permit holder is a fit and proper person to hold a right of entry permit (Permanent Qualification Matters) as follows:

“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.”

[12] The principles applicable to the assessment of whether a proposed permit holder is a fit and proper person to hold an entry permit can be summarised from the relevant authorities as follows: 1

a. The question of whether a proposed permit holder is a fit and proper person to hold an entry permit will require consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attached to the exercise of those rights and the responsibilities that must be discharged in the exercise of those rights.

b. Consideration of permit qualification matters is to be directed to the personal characteristics of the proposed permit holder pertinent to the discharge of the functions and the exercise of the rights associated with holding a permit.

c. The permit qualification matters must be considered in the context of whether the proposed permit holder is a fit and proper person to hold an entry permit, not whether the proposed permit holder is a fit and proper person per se.

d. Each of the permit qualification matters must be considered and given appropriate weight.

e. There is no statutory indication that any particular permit qualification matter should be given more weight than any other.

f. For a matter to be relevant for the purposes of section 513(1)(g), the matter must relate to the personal characteristics of the proposed permit holder and be pertinent to the discharge of the functions and the exercise of the rights associated with holding a permit.

Consideration

[13] The FWC may issue a permit to a proposed permit holder if the FWC is satisfied that the proposed permit holder is a fit and proper person to hold an entry permit. In deciding whether the official is a fit and proper person, the FWC must take into account the Permit Qualification Matters.

[14] Mr Smart gave evidence that he completed the Australian Council of Trade Unions Right of Entry Training Course on 9 October 2017. Mr Smart asserts that, prior to this, he received training in accordance with a program developed by the CFMEU’s National Office on 14 April 2008, 25 October 2011 and 28 October 2014. It is not contested, and I accept, that Mr Smart has completed appropriate training about the rights and responsibilities of a permit holder in accordance with section 512(1)(a) of the FW Act. 2

[15] It is not contested, and I am satisfied, that Mr Smart has not been convicted of an offence against an industrial law or an offence against the 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. 3

[16] It is not contested, and I am satisfied, that Mr Smart has not been ordered to pay a penalty under the FW Act or any other industrial law in relation to action taken by him, other than being ordered to pay a penalty of $1,000.00 under the FW Act in relation to an incident which occurred on 31 March 2014 (Kennett Incident). 4

[17] On that date, Mr Smart visited a construction site in Leabrook to hold discussions with employees of Kennett Pty Ltd (Kennett) whom the CFMEU were entitled to represent. Mr Smart was accompanied by another CFMEU Organiser (Mr Stephenson). A representative of Kennett advised Mr Smart and Mr Stephenson that they were not permitted onto the site without providing valid notice of entry. Nevertheless, Mr Smart and Mr Stephenson entered the site. 5

[18] In applying a modest penalty, the Federal Court took into account that: 6

a. the incident occurred on Mr Smart’s first day at work in South Australia;

b. Mr Smart’s conduct was of a more passive nature than Mr Stephenson’s;

c. Mr Smart was only on the site for a short period of time and did not hinder or obstruct operations;

d. Mr Smart had not previously contravened section 500 of the FW Act;

e. Mr Smart was scheduled to undertake right of entry retraining on 18 December 2014; and

f. Mr Smart subsequently expressed contrition for his actions.

[19] In his affidavit, Mr Sneddon affirms that, following the proceedings in relation to the Kennett Incident, the CFMEU sent Mr Smart to Adelaide to participate in a right of entry training session delivered by Slater & Gordon Lawyers on 15 December 2014. 7

[20] The CFMEU submit that the Kennett Incident was an isolated incident, does not indicate a pattern of improper behaviour, and is not suggestive of future misconduct.

[21] It is not contested, and I am satisfied, that Mr Smart has not had an entry permit under the FW Act, or under a similar law of the Commonwealth, revoked, suspended or made subject to conditions, except for the following occasions on which an entry permit issued to Mr Smart under the FW Act was suspended or subject to conditions: 8

a. On 2 June 2015, Mr Smart’s entry permit was suspended for a period of three months as a consequence of the pecuniary penalty imposed on Mr Smart in relation to the Kennett Incident.

b. On 18 November 2008, a condition not to enter or remain on a site with Mr Joseph McDonald was imposed on a previous entry permit issued to Mr Smart.

[22] The condition imposed in 2008 did not result from behaviour on the part of Mr Smart, but rather was a condition placed on all entry permit holders in the Western Australian branch of the CFMEU. Mr Smart complied with the condition until its expiration in 2010. In these circumstances, the imposition of the condition should not weigh against the assessment that Mr Smart is a fit and proper person.

[23] It is not contested, and I am satisfied, that no right of entry for industrial or occupational health and safety purposes that Mr Smart might have had a under a State or Territory industrial or occupational health and safety law has been cancelled, suspended or had conditions imposed. It is not contested, and I am satisfied, that Mr Smart has not been disqualified from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial or occupational health and safety law. 9

[24] In relation to section 513(1)(g) of the FW Act, the CFMEU tendered two affidavits from building industry employers. Mr Roadhouse and Mr Holdich attest that, in their experience, Mr Smart submits his right of entry notification on time, displays his right of entry permit when requested, and complies with site safety rules and safety procedures, including signing into the site visitor book. 10

[25] In his affidavit, Mr Smart notes that he was punished for his conduct in relation to the Kennett Incident. He expresses remorse for his conduct, affirming that he has ‘learnt his lesson’. Mr Smart confirms that he understands the importance of complying with his obligations as a permit holder. He highlights that, save for the Kennett Incident, he has exercised his right of entry without incident during his nine years as a CFMEU Organiser. 11

[26] The two affidavits tendered by the CFMEU are brief and contain limited information. For example, they do not make clear how frequently the deponents have had the opportunity to observe Mr Smart’s conduct. However, they do go to the specific conduct for which Mr Smart was penalised.

[27] Mr Smart has indicated contrition in relation to the Kennett Incident but, more importantly, his actions match his words. He has not been involved in any breaches of his right of entry obligations since 2014.

Conclusion

[28] 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.

[29] Mr Smart was found to have contravened the FW Act on one occasion in 2014 and suffered consequences for that conduct. However, since that time he has exercised his right of entry in accordance with the law.

[30] I have considered the Permit Qualification Matters and have given weight to each. 12 Taking into account the totality of the material and for the reasons already given, I am satisfied that Mr Smart is a fit and proper person to hold an entry permit.

[31] The application for a right of entry permit is granted. An order to this effect (PR599427) will be issued separately.

DEPUTY PRESIDENT

 1   Australian Salaried Medical Officers Federation [2017] FWC 3282 at [11] citing Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2015] FWC 1522.

 2   Affidavit of Troy Kingsley Smart dated 8 December 2017 at [11]-[13].

 3   Ibid at [14]-[15].

 4   Affidavit of Troy Kingsley Smart dated 8 December 2017 at [16]-[17].

 5   Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 at [13]-[22].

 6   Ibid at [108]-[112].

 7 Affidavit of Kevin Russell Sneddon dated 10 January 2018 at [11].

 8   Affidavit of Troy Kingsley Smart dated 8 December 2017 at [18]-[20].

 9 Ibid at [21].

 10   Affidavit of Chris Holdich dated 8 December 2017; Affiavit of Lee Roadhouse dated 8 December 2017.

 11   Affidavit of Troy Kingsley Smart dated 8 December 2017 at [22]-[24].

 12   Australian Salaried Medical Officers Federation [2017] FWC 3282 at [12].

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