[2015] FWC 1786

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
(RE2015/265)

Construction, Forestry, Mining and Energy Union-Union of Workers
(RE2015/266)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 20 MARCH 2015

Applications for right of entry permit - Walter (Vinnie) Molina.

[1] On 16 February 2015 two applications were lodged for right of entry permits for Mr Walter (Vinnie) Molina.

[2] RE2015/265 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. RE2015/266 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 Molina is an Organiser employed by the Applicants. It appears that he is also a member of the Branch Committee of Management.

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

Compliance with s.512 and s.513

[7] Attached to the applications are declarations by Mr Buchan that Mr Molina 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 Molina’s declarations were in similar terms.

[8] The declarations refer to:

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

● Convictions of Mr Molina for offences against an industrial law - contraventions of s.790(1)(a) of the Workplace Relations Act 1996 and of ss.346, 348 and 417 of the Act.

● Instances of Mr Molina being ordered to pay a penalty under an industrial law.

● A suspension of Mr Molina’s right of entry permit in the past for two months.

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

[10] The Regulation Compliance Branch of the Commission prepared a report to the Organisations Panel Head and, on 17 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 Applicant’s Perth location, I listed the matter for programming by telephone on 6 March 2015.

[12] On 2 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 Molina was also in attendance.

[14] It was agreed, on the 6 March telephone conference that the Applicants would file additional material explaining the circumstances in respect of the matters referred to in paragraph [8] above.

[15] On 12 March Mr Sneddon, on behalf of the Applicants, provided to my chambers a written submission in support of the applications and an affidavit of Mr Molina.

[16] The Applicants submit that Mr Molina is a fit and proper person to hold the entry permits applied for, taking into account the permit qualification matters contained in s.513.

[17] The submission and Mr Molina’s affidavit provide further detail and explanation with respect to the matters referred to in paragraph [8] above.

[18] The following points are noted:

● In ([2012] FMCA 419) Mr Molina was found to have made a false and misleading statement about a worker’s obligation to join the union. The context of this statement is explained together with the limited audience for it. Mr Molina recognised the need to modify his behaviour. He was ordered to pay a penalty of $660 but the Magistrate found that the conduct was “at the lower end of the spectrum of contraventions which might arise in relation to freedom of association”.

● In ([2014] FCA 389) Mr Molina was ordered to pay $7000 for a civil breach of the Act. There was an admission of wrong and contrition.

● In ([2008] AIRC 896) Mr Molina had his right of entry suspended for two months. This suspension occurred some time ago and Mr Molina has been conscious of his obligations since that time.

● Mr Molina’s important role in representing workers and policing legislation and industrial instruments in a difficult industry should be recognised.

Conclusion

[19] I have considered the permit qualification matters revealed in the applications and expanded upon in the submission and affidavit filed on 12 March 2015. In my view, they do not prevent Mr Molina from being considered to be a “fit and proper person”. He has been an organiser for 17 years. He has taken responsibility for any faults in the past and taken steps to rectify his behaviour.

[20] Accordingly, I am satisfied that Mr Molina is a “fit and proper person” as required by s.512.

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

[22] I understand that Mr Molina’s right of entry permits expired on 6 March 2015.

[23] This decision will be referred to the Regulatory Compliance Branch of the Commission who will issue the new permits, subject to the return of the current permits.

DEPUTY PRESIDENT

Appearances:

K. Sneddon for the CFMEU.

Hearing details:

2015

Phone Conference:

March 6.

Final written submissions:

March 12.

Printed by authority of the Commonwealth Government Printer

The Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch, applied for a right of entry permit under the Work Health and Safety Act 2012 (Cth). The permit was sought to inspect a site at which a serious injury had occurred. The injury occurred to an employee of the applicant’s employer, Walter (Vinnie) Molina. Molina had fallen off a scaffold at the site. The employer’s request for a right of entry permit was refused. The applicant sought judicial review of that refusal in the Federal Circuit Court. The court was required to determine whether the decision to refuse the permit was lawful. The main issue was whether the decision to refuse the permit was unreasonable.

The court held that the decision to refuse the permit was unreasonable. The primary judge had applied an incorrect test in making the decision. The primary judge had concluded that the permit should not be granted because the information available at the time the permit was applied for was sufficient for the applicant to carry out its inspection. The court held that the primary judge should have considered whether the information that was available at the time the permit was applied for was sufficient for the inspection to be carried out, rather than whether the information available at the time was sufficient in itself. The court found that there was no evidence that the information available at the time of the application for the permit was sufficient to enable the inspection to be carried out. The application for review was therefore allowed. The decision to refuse the permit was quashed and the matter was remitted to the primary judge with directions to consider the application anew.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established