Dennis Mitchell

[2021] FWC 460

[2021] FWC 460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Dennis Mitchell
(RE2020/1190)

DEPUTY PRESIDENT COLMAN MELBOURNE, 1 FEBRUARY 2021

Application for a right of entry permit for Mr Dennis Mitchell

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application under s 512 of the Fair Work Act 2009 (Act) for the issuance of a right of entry permit to its official Mr Dennis Mitchell, whom it employs as an organiser in Queensland.

[2] The Australian Building and Construction Commissioner (ABCC) was informed of the application but did not wish to make submissions in relation to it. The CFMMEU filed written submissions in support of its application and requested that I determine the matter on the papers. I consider it appropriate to do so.

[3] Section 512 of the 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 Act:

“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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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.”

[4] The declarations filed by the CFMMEU in support of the application for the grant of an entry permit to Mr Mitchell attested to the following matters:

•  Mr Mitchell has never been convicted of an offence against an industrial law (s 513(1)(b));

•  Mr Mitchell has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, fraud, dishonesty, intentional use of violence against another person or intentional damage or destruction of property (s 513(1)(c));

•  Mr Mitchell has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked or suspended or had imposed conditions on any such permit (s 513(1)(e)); and

•  Mr Mitchell has not had a State or Territory entry permit cancelled, suspended or made subject to conditions, nor has he been disqualified under State or Territory laws from exercising or applying for an entry permit (s 513(1)(f)).

[5] I accept the information in the declarations concerning these matters. Each of these permit qualification matters weighs in favour of a conclusion that Mr Mitchell is a fit and proper person to hold an entry permit, and that a permit should be issued to him.

[6] The CFMMEU submitted a certificate of completion which it issued to Mr Mitchell, certifying that on 18 December 2020 Mr Mitchell completed the course ‘Federal Right of Entry under the Fair Work Act 2009’, which appears to me to be appropriate training for the purpose of s 513(1)(a).

[7] The declarations make disclosures in relation to the permit qualification matter referred to in s 513(1)(d). They state that on 9 March 2018, in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Enoggera Barracks Case), 1 the Federal Court ordered Mr Mitchell to pay pecuniary penalties in relation to contraventions of the Act that occurred in 2013 on a construction project in Brisbane known as the ‘QUT project’. The Court made declarations that on 8 March 2013, 28 October 2013 and 30 October 2013, Mr Mitchell had contravened ss 343 and 417 of the Act by organising employees of subcontractors to take industrial action, and that he did so with the intent to coerce John Holland Qld Pty Ltd to enter into an enterprise agreement with the CFMMEU. The Court also declared that on 30 October 2013 Mr Mitchell contravened s 421 by organising industrial action in breach of an order made pursuant to s 418. The declarations were made by consent. Mr Mitchell admitted the contraventions. As a consequence of the declarations, the Court ordered Mr Mitchell to pay penalties totalling $10,500.

[8] The CFMMEU emphasised that the contravening conduct did not involve any alleged misuse of entry rights, that there were no circumstances of aggravation such as abusive language, and that the conduct occurred over 7 years ago and was isolated. The union submitted that the Commission should be satisfied by the passage of time and Mr Mitchell’s otherwise good conduct that the penalty imposed on him had had a deterrent effect, such that Mr Mitchell has learned from the proceeding and that it is unlikely that the contravening conduct will recur.

[9] The CFMMEU submitted that the Commission should also take into account that the conduct was admitted by Mr Michell, which saved the expense and inconvenience of a contested trial and demonstrated Mr Mitchell’s insight into the unsatisfactory nature of the conduct.

[10] The union further contended that the Commission should bear in mind that all of the other permit qualification matters in s 513(1) weigh in favour of a finding that Mr Mitchell is a fit and proper person to hold a permit, and that the imposition of penalties for contraventions that occurred seven years ago would not of itself lead the Commission to conclude that Mr Mitchell is not a fit and proper person to hold a permit.

[11] A final matter that the CFMMEU asked the Commission to consider under s 513(1)(g), favourably to Mr Mitchell, was the fact that the ABCC did not wish to be heard in respect of the application. The union referred to previous decisions of the Commission where the absence of intervention by the ABCC has been considered to be a factor supporting the issuing of a permit. However, while the view of the regulator is certainly relevant in a matter under s 512, I would not infer that the ABCC has any view about the merits of the application simply because it does not wish to be heard. As I have noted on a previous occasion, a decision not to intervene may simply reflect the regulator’s competing priorities. 2

[12] The admitted contraventions are plainly matters that I must take into account in determining whether Mr Mitchell is a fit and proper person to hold a permit. However, the contraventions occurred in 2013, and there has been no recurrence of the conduct. These are matters that I take into account in connection with my consideration of both ss 513(1)(d) and 513(1)(g).

Conclusion

[13] The permit qualification matters in ss 513(1)(a), (b), (c), (e) and (f) weigh in favour of granting the application. As to the permit qualification matter in s 513(1)(d), the fact that Mr Mitchell was ordered to pay penalties under the Act weighs against the granting of a permit, but the significance of this is moderated by the matters I have referred to above. In all the circumstances, I am satisfied that Mr Mitchell is a fit and proper person to hold an entry permit.

[14] I therefore exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Mitchell with an entry permit. The application is granted and an entry permit will be issued to Mr Mitchell separately.

DEPUTY PRESIDENT

Written submissions of the CFMMEU: 29 January 2021

Printed by authority of the Commonwealth Government Printer

<PR726535>

 1 [2018] FCA 263

 2   See Gibson, [2020] FWC 1502 at [14].