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

[2015] FWC 3057

[2015] FWC 3057

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit

Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch
(RE2015/491)

The Construction, Forestry, Mining and Energy Union of Workers
(RE2015/492)

VICE PRESIDENT WATSON MELBOURNE, 8 MAY 2015

Applications by Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch and The Construction, Forestry, Mining and Energy Union of Workers for entry permits for Mr Michael Buchan - Factors to be taken into account when determining whether fit and proper person - Fair Work Act 2009, ss.512 and 513.

[1] This matter involves an application by the Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch (CFMEU WA) and by The Construction, Forestry, Mining and Energy Union of Workers (CFMEUW) under s.512 of the Fair Work Act 2009 (the Act) for the issue of right of entry permits to Mr Michael Buchan. Mr Buchan is an official of both organisations.

[2] In accordance with s.74(a) of the Fair Work (Building Industry) Act 2012 the Director of the Fair Work Building Industry Inspectorate (FWBC) was notified of the lodgement of the two applications. The Director did not advise of an intention to make submissions in relation to the matter.

Legislative Provisions

[3] Under s.512 of the Act, the Fair Work Commission (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).

[4] 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

(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."

[5] 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."

Consideration

[6] The applications contained declarations from Mr Buchan and Mr Graham Pallot, Assistant Secretary and Assistant State Secretary of the CFMEUW and CFMEU WA respectively, that Mr Buchan:

• has received training as required by s.513(1)(a)



• has never been convicted of an offence against an industrial law



• has never been convicted of an offence against a law of the Commonwealth, a 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



• was ordered to pay a penalty in the amount of $13,000 in [2011] FCA 810



• had a three month suspension of his permit and conditions imposed in [2008] AIRC 324



• had a three month suspension of his permit imposed in [2004] WAIRC 12071



• has not 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 occupational health and safety purposes under that law.

[7] Mr Buchan filed an affidavit and Mr Buchan, CFMEUW and CFMEU WA made submissions in support of the applications. In summary, it is submitted that Mr Buchan is a fit and proper person for the purposes of s.512 of the Act, Mr Buchan states that he understands his obligations and duties as a permit holder and in over 12 years and many thousands of site visits has far and away complied with these duties. It is further submitted that any mistakes made over this time have been accepted and have led to modified behaviour in order to ensure that they were not repeated.

[8] In the process of checking the above details it has become apparent that some potentially relevant matters have not been disclosed. FWBC has commenced four separate proceedings in the Federal Court in which Mr Buchan is named as a respondent. Those matters are as follows:

• Director of the Fair Work Building Industry Inspectorate v CFMEU, CFMEUW, Buchan, McDonald, Molina & Ors, 1in which FWBC alleges that the respondents intended to coerce Perth Airport Pty Ltd and its contractors at the Perth International Airport’s Arrivals Expansion Project on 22 October 2013



• Director of the Fair Work Building Industry Inspectorate v CFMEU, Noonan & Ors, 2 in which FWBC alleges the respondents organised and incited a blockade at the New Children’s Hospital construction site in Perth on 18 July 2013



• Director of the Fair Work Building Industry Inspectorate v CFMEU, McDonald & Anor, 3in which FWBC alleges the respondents organised a protest in a bid to coerce John Holland, the head contractor of the New Children’s Hospital in Perth, to meet its pay demands, on 3 May 2013, and



• Director of the Fair Work Building Industry Inspectorate v CFMEU, McDonald, Buchan, McCann, Upton, Heathcote & Harris, 4 in which FWBC alleges that the respondents took coercive and adverse action on the new Perth Children’s Hospital construction site in January 2013.

[9] Further, Mr Buchan is named as a respondent in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union. 5 On 3 May 2013, interlocutory orders were made restraining the respondents from picketing a construction project site known as the New Children’s Hospital site in Western Australia.

[10] CFMEU WA and CFMEUW did not address the non disclosure in their submissions.

[11] The disclosure or otherwise of relevant matters is relevant to the Commission’s consideration in determining these applications.

[12] I consider that there should have been disclosure of the above proceedings that were on foot in relation to Mr Buchan and the potential consequences of those proceedings. It is appropriate to describe the requirement to disclose that material as a duty. There was a failure to discharge that duty by the CFMEU WA, CFMEUW and Mr Buchan. These are not insignificant or irrelevant considerations. They relate directly to the submissions made by and on behalf of Mr Buchan to the effect that he has learnt from prior mistakes and modified his behaviour accordingly. Mr Buchan should have drawn the attention of the Commission to those matters in the applications that were made and should have addressed all factors required to be considered in the light of the disclosed information.

Conclusion

[13] I do not consider that the failure to disclose important information should be ignored or condoned. I propose to adjourn these applications. I direct that amended applications be filed that address the missing information by 29 May 2015. I further direct that an amended outline of submissions be filed after 30 June 2015 that provide full disclosure of the status of the proceedings and a summary of the evidence of all parties in each of those matters. I will consider the applications further in the light of these supplementary submissions.

VICE PRESIDENT

Final written submissions:

CFMEU WA and CFMEUW on 30 April 2015.

 1   WAD289/2014.

 2   WAD135/2014.

 3   WAD95/2014.

 4   WAD16/2014.

 5 [2013] FCA 615.

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