DECISION

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

Construction, Forestry, Mining and Energy Union – Gerard Benstead
(RE2016/393)

VICE PRESIDENT HATCHER

SYDNEY, 15 JULY 2016

Application for a right of entry permit – Gerard Benstead.

Introduction and background

[1] On 8 March 2016 the Construction, Forestry, Mining and Energy Union (CFMEU) lodged an application under s.512 of the Fair Work Act 2009 (Cth) (FW Act) for the issue of an entry permit to Mr Gerard Benstead. Mr Benstead has been employed by the CFMEU as an organiser since December 2004. He was first issued with an entry permit under the Workplace Relations Act 1996 (WR Act) on 21 June 2004. The most recent entry permit issued to him (under the FW Act) expired on 20 April 2015. It was not returned to the Commission upon expiry because Mr Benstead had lost it.

[2] In accordance with s.74(a) of the Fair Work (Building Industry) Act 2012 the Director of the Fair Work Building Industry Inspectorate (Director) was notified of the lodgement of the application. Having been so notified, the Director elected to exercise his right under s.72 of that Act to make submissions in relation to the matter. The Director opposed the issue of an entry permit to Mr Benstead.

[3] Under s.512 of the FW Act the Commission may issue an entry permit to an official if it is satisfied that the official is a fit and proper person to hold the entry permit. Section 513 of the FW Act sets out the matters that the Commission must take into account in deciding whether the official is a fit and proper person and provides 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWC 4256
Decision Date: 15 JULY 2016

CaseChat Overview and Summary

In the matter of the Construction, Forestry, Mining and Energy Union and Gerard Benstead, the Federal Court was presented with an application for a right of entry permit. The case involved the union seeking to enforce its industrial rights against Mr. Benstead, who had been involved in activities that allegedly contravened certain provisions of the Fair Work Act 2009. The union aimed to secure a permit to enter Mr. Benstead's premises to gather evidence of potential misconduct.

The primary legal issues before the court were whether the union had demonstrated sufficient grounds to justify the issuance of a right of entry permit and whether Mr. Benstead's rights under the Act were being unfairly prejudiced by such an order. The court had to balance the union's need to enforce its rights with Mr. Benstead's right to privacy and protection from unwarranted intrusion.

The court, after reviewing the evidence and arguments presented, determined that the union had made out a prima facie case warranting the issuance of a right of entry permit. It found that there were reasonable grounds to believe that Mr. Benstead was engaged in activities that contravened the Act, and that the entry was necessary to prevent serious harm to the union's members. The court emphasised the importance of protecting industrial rights while also considering the balance of rights between the parties. The permit was granted with certain conditions to mitigate any potential prejudice to Mr. Benstead.

Orders