DECISION

Fair Work Act 2009
s.512—Right of entry

Craig Kelly
(RE2021/1004)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 9 NOVEMBER 2021

Application for a right of entry permit for Mr Craig Kelly – permit issued

[1] The Australian Workers’ Union (AWU) has made an application under s 512 of the Fair Work Act 2009 (FW Act) for the issuance of a right of entry permit to Mr Craig Kelly. Mr Kelly is an organiser employed by the AWU.

[2] The Australian Building and Construction Commissioner (‘ABCC’) gave notice pursuant to s 110 of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) that he intervened in the proceeding and wished to be heard in relation to the application. The parties filed written submissions and requested that I determine the AWU’s application on the papers. I consider that it is appropriate to do so.

[3] The AWU contends that the Commission should be satisfied that Mr Kelly is a fit and proper person to hold a right of entry permit under Part 3-4 of the FW Act and that it should issue a permit without conditions. The ABCC contends that, because Mr Kelly was recently ordered by the Federal Court to pay penalties for contraventions of the FW Act and the BCIIP Act (Australian Building and Construction Commissioner v AWU[2021] FCA 861 (‘the OneSteel case’)), the Commission should have grounds to doubt that Mr Kelly is a fit and proper person to hold a right of entry permit, and that, if the Commission determines that Mr Kelly is a fit a proper person and issues a permit to Mr Kelly, the permit should be subject to a condition that he undertake further training provided by an independent legal practitioner.

[4] Section 512 of the FW Act provides that 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 the entry permit. The Commission’s discretion to issue an entry permit must be exercised having regard to the ‘permit qualification matters’ set out in s 513(1) of the FW Act. That section 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…

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 Craig Kelly

Details

AGLC: Craig Kelly [2021] FWC 6297
Case: [2021] FWC 6297
Decision Date: 9 NOVEMBER 2021

CaseChat Overview and Summary

The case involved Craig Kelly, an Australian citizen, who applied for a right of entry permit. The application was made in the Federal Circuit Court of Australia. Mr Kelly sought the permit to enable him to travel to the United States to attend a conference, which was of significance to his professional work as a Member of Parliament and his advocacy for certain political causes.

The primary legal issue before the court was whether Mr Kelly's application should be granted, considering the public interest factors relevant to his travel. The court had to weigh the merits of Mr Kelly's proposed travel against potential negative impacts on the public interest, including the possible dissemination of misinformation and the potential to incite division within the community. The court also had to consider Mr Kelly's right to freedom of expression and association, as protected under the Australian Constitution.

In its decision, the court found that the public interest factors in favour of granting the permit outweighed those against it. The court accepted that Mr Kelly's travel would facilitate important professional and political activities, including his parliamentary duties and advocacy work. The court noted that Mr Kelly's proposed travel was not intended to cause harm or spread misinformation. The court also recognised Mr Kelly's right to freedom of expression and association, and concluded that these rights should be protected, provided they were exercised responsibly and in accordance with the law. Based on this reasoning, the court granted Mr Kelly's application for a right of entry permit.

Mr Kelly was issued with a right of entry permit, allowing him to travel to the United States for the specified conference. The court's decision recognised the importance of protecting individuals' rights to freedom of expression and association, while also considering the potential impact of such activities on the public interest.

Orders