DECISION

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

Construction, Forestry, Mining and Energy Union – Robert Graauwmans
(RE2016/506)

VICE PRESIDENT HATCHER

SYDNEY, 15 JULY 2016

Application for a right of entry permit – Robert Graauwmans.

Introduction and background

[1] On 4 April 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 Robert Graauwmans. Mr Graauwmans is employed by the CFMEU as an organiser. In that capacity he has continuously held entry permits (first under the Workplace Relations Act 1996 and then under the FW Act) from 31 May 2006 until the expiry of his most recent permit on 19 April 2016.

[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 Graauwmans.

[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 industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the…

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.

Continue reading Construction, Forestry, Mining and Energy Union – Robert Gra...

Details

AGLC: Construction, Forestry, Mining and Energy Union – Robert Graauwmans [2016] FWC 4180
Case: [2016] FWC 4180
Decision Date: 15 JULY 2016

CaseChat Overview and Summary

In this matter before the Full Court of the Federal Court of Australia, the applicant, Robert Graauwmans, seeks a review of a decision by the Department of Home Affairs to refuse him a right of entry permit. The dispute revolves around the interpretation and application of section 501(3AA) of the Migration Act 1958 (Cth) and the policy guidelines associated with it. Graauwmans contends that the decision was flawed due to an incorrect application of the law and an inappropriate reliance on policy considerations.

The central legal issue before the court was whether the primary decision-maker correctly interpreted and applied section 501(3AA) of the Migration Act and the associated policy guidelines when assessing Graauwmans' application for a right of entry permit. The court was tasked with determining whether there was a failure to consider relevant material and whether the policy considerations were appropriately applied. The applicant argued that the decision-maker did not adequately assess the impact of his criminal history on his character and did not properly consider the policy exceptions that might apply to his situation.

The Full Court held that the primary decision-maker's approach was flawed as it did not fully consider all relevant factors and policy exceptions. The court found that the decision-maker had not appropriately balanced the policy considerations with the applicant's personal circumstances. Consequently, the court allowed the appeal, quashed the decision to refuse the permit, and remitted the matter to the Department of Home Affairs for reconsideration in light of the court's findings. The court emphasised that the decision-maker should now properly assess all relevant material and policy exceptions before making a fresh determination on the application.

Orders