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

[2017] FWC 5928

[2017] FWC 5928

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, WA Divisional Branch
(RE2017/1216)

DEPUTY PRESIDENT BINET PERTH, 14 NOVEMBER 2017

Application for extension of right of entry permit for Troy Kingsley Smart - extension granted.

[1] On 17 October 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 Troy Kingsley Smart (Mr Smart) 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 Smart (Old Permit) was issued on 27 November 2017 (RE2014/1697) and is due to expire on 27 November 2017.

[4] On 16 October 2017, the CFMEU lodged an application with the FWC for a new entry permit for Mr Smart pursuant to section 512 of the FW Act (RE2017/1204) (New Permit Application). I am satisfied that the CFMEU lodged the New Permit Application at least one month before the Old Permit was due to expire.

[5] The New Permit Application was accompanied by statutory declarations made by Mr Smart and Mr Campbell McCullough, Acting Secretary of the WA Divisional Branch of the CFMEU. The declarations disclosed matters which require, pursuant to section 513(1) of the FW Act, consideration in deciding whether Mr Smart is a fit and proper person to hold an entry permit. Given the limited period of time between the New Permit Application and the expiration of the Old Permit, this consideration is unlikely to conclude before 27 November 2017. I am therefore satisfied that the Old Permit is likely to expire before the FWC determines the New Permit Application.

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

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

[8] Pursuant to section 516 of the FW Act, Mr Smart’s Old Permit will be extended until 27 February 2018 or such earlier time as the New Permit Application is heard and determined. An order to this effect (PR597650) will be issued with this decision.

DEPUTY PRESIDENT

<Price code A, PR597649>