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

[2015] FWC 1989

[2015] FWC 1989

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
(RE2015/287)

Construction, Forestry, Mining and Energy Union-Union of Workers Branch
(RE2015/288)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 23 MARCH 2015

Application for right of entry permit - Matthew Waters.

[1] On 19 February 2015 two applications were lodged for right of entry permits for Mr Matthew Waters.

[2] RE2015/287 is an application by the Construction, Forestry, Mining and Energy Union, Construction and General Division, Western Australia Branch - that is, the branch of the Federal Union. RE2015/288 is an application by the Construction, Forestry, Mining and Energy Union, Union of Workers - that is, the Transitionally Registered Association. Both of these entities are referred to hereafter as “the Applicants”.

[3] Both applications are signed by Mr Michael Buchan, the Secretary of the Applicants. Mr Waters is an Organiser employed by the Applicants.

Legislative Provisions

[4] Under s.512 of the Fair Work Act 2009 (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).

[5] 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.”

[6] 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.”

Compliance with s.512 and s.513

[7] Attached to the applications are declarations by Mr Buchan that Mr Waters satisfies the “fit and proper person” test, as required by s.512. The declarations address each of the “permit qualification matters” set out in s.513(1) of the Act. Mr Waters’ declarations were in similar terms.

[8] The declarations refer to:

● The training undertaken by Mr Waters as required by s.513(1)(a).

● The fact that Mr Waters has not been convicted of an offence against an industrial law or been ordered to pay a penalty under an industrial law.

● That Mr Waters has not had his right of entry suspended in the past or had any conditions imposed on it.

[9] Otherwise, the declarations assert Mr Waters’ compliance with the matters contained in s.513(1).

[10] The Regulation Compliance Branch of the Commission (RCB) prepared a report to the Organisations Panel Head and, on 20 February 2015, forwarded a copy of the applications to the Delegate of the Director of the Fair Work Building & Construction Commission (FWBC) as it is required to do.

Commission Proceedings

[11] The matter was allocated to me. Given the Applicants’ Perth location, I listed the matter for programming by telephone on 13 March 2015.

[12] On 13 March 2015 my chambers was advised by the FWBC that it did not wish to appear in the proceedings or make any submission.

[13] The Applicants were represented by Mr Kevin Sneddon. Mr Waters was also in attendance.

[14] The issues of concern to the RCB were two instances of non disclosure in the applications which were revealed in the process of checking them:

● A previous right of entry permit had a limited condition imposed on it in RE2009/2131. This condition was imposed by Senior Deputy President Lacy on 18 November 2008 and applied to all WA Branch officials in respect of site visits by Assistant Branch Secretary Joe McDonald.

● Mr Waters was a respondent in John Holland Pty Ltd v CFMEU (2013) FCA 615. Orders restraining the organising or engaging in industrial action at the New Children’s’ Hospital site in Perth against nine respondents were issued.

[15] In an email and at the telephone conference Mr Sneddon explained that the non-disclosures were a result of an error in the Applicants’ office. The matters related to a range of officials of the Applicants and had been previously disclosed in applications relating to other officials affected. I accept this explanation.

Conclusion

[16] I have considered the permit qualification matters revealed in the applications and expanded upon during the telephone conference on 13 March 2015. In my view, they do not prevent Mr Waters from being considered to be a “fit and proper person”.

[17] Accordingly, I am satisfied that Mr Waters are a “fit and proper person” as required by s.512.

[18] I therefore grant the applications for entry permits to Mr Waters, pursuant to s.512.

[19] I understand that Mr Waters’ right of entry permits expired on 2 March 2015 and have been returned to the Perth registry.

[20] This decision will be referred to the Regulatory Compliance Branch of the Commission who will issue the new permits.

DEPUTY PRESIDENT

Appearances:

K. Sneddon for the CFMEU.

Hearing details:

2015

Phone Conference:

March 13.

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