National Union of Workers

[2019] FWC 6931

[2019] FWC 6931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

National Union of Workers
(RE2019/800)

DEPUTY PRESIDENT COLMAN MELBOURNE, 9 OCTOBER 2019

Application for a right of entry permit to Mr Mark Whenan

[1] On 19 August 2019, the National Union of Workers (NUW) made an application to the Fair Work Commission (Commission)under s 512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Mr Mark Whenan, who is employed as an organiser.

[2] I have decided to grant the application for the following reasons.

[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 is not conferred in unqualified terms. The discretion 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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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 NUW in support of the application for the grant of an entry permit to Mr Whenan attested to the following matters:

(a) Mr Whenan has never been convicted of an offence against an industrial law (s513(1)(b));

(b) Mr Whenan 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));

(c) Mr Whenan has never been ordered to pay a penalty under the Act or any other industrial law (s 513(1)(d));

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

(e) Mr Whenan 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 Whenan is a fit and proper person to hold an entry permit.

[6] The declarations also stated that Mr Whenan has received appropriate training about the rights and responsibilities of a permit holder within the meaning of s 513(1)(a), because he has completed the course ‘Federal Right of Entry’ short course developed by the ACTU Organising Centre and delivered by Mr Dominic Melling of the NUW, under licence from the ACTU, to Mr Whenan on 5 July 2019.

[7] I do not consider there to be any other relevant matters that should be taken into account for the purpose of s 513(1)(g).

[8] In the present case, all of the permit qualification matters weigh in favour of granting the application. I am satisfied that Mr Whenan is a fit and proper person to hold an entry permit.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR713110>