New South Wales Nurses and Midwives' Association

[2015] FWC 8600

[2015] FWC 8600

FAIR WORK COMMISSION

DECISION

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

New South Wales Nurses and Midwives' Association
(RE2015/1553)

VICE PRESIDENT HATCHER SYDNEY, 14 DECEMBER 2015

Application for an Entry Permit – Jonathan Farry.

Introduction and background

[1] By an application lodged on 14 October 2015 under s.512 of the Fair Work Act 2009 (Cth) (FW Act) the NSW Nurses & Midwives’ Association (Association) seeks that an entry permit be issued to Mr Jonathan Farry, one of the Association’s organisers. Mr Farry has not previously been issued with an entry permit under the FW Act.

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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

[3] Section 515 of the FW Act sets out the circumstances in which the Commission may impose conditions on an entry permit as follows:

515 Conditions on entry permit

(1) The FWC may impose conditions on an entry permit when it is issued.

(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.

(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).

(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.

(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).

[4] The Association’s application was accompanied by declarations made by Mr Brett Holmes, the General Secretary of the Association, and Mr Farry addressing the permit qualification matters in s.513. Mr Farry also made a separate statutory declaration dated 13 October 2015 which disclosed the following matters:

• He has not held an entry permit under the FW Act since the commencement of his employment with the Association as an organiser in 2010.



• He successfully completed the ACTU online training course in order to obtain such an entry permit in September 2010 and completed an application for an entry permit under the FW Act.



• He believed that this application had been successful.



• In March 2015 he became aware that he did not hold an entry permit under the FW Act. He successfully completed the ACTU course again and filled out another application for an entry permit.



• In September 2015 he became aware that the Association had not lodged the application. He successfully completed the ACTU course again, and completed the application again.



• On 1 October 2015 he was requested by the Association to complete the application again, and he did so.



• Whilst under the mistaken belief that he held an entry permit under the FW Act, Mr Farry purported to exercise rights of entry under the FW Act on three occasions in February and March 2012. Mr Farry described the access to premises on each occasion as “consensual”.



• No employer has alleged an entry contravention on his part.

[5] Further evidence about these matters was given by Mr Farry in an affidavit sworn on 4 December 2015. In that affidavit Mr Farry said:

“I recognise my individual responsibility under the [FW Act] with respect to Right of Entry. While the [Association] has acknowledged some administrative errors and deficiencies in its processes, I know that as the proposed permit holder, it is my responsibility to ensure that I hold a proper, original permit and exercise the power lawfully.”

[6] Mr Farry further gave evidence that the Association had written to each employer which had been the subject of his purported exercise of right of entry in February and March 2012 notifying them that Mr Farry had not held an entry permit at the time and apologising for what occurred.

[7] Further evidence has been adduced before me concerning the circumstances in which Mr Farry came under the impression that he held an entry permit under the FW Act. Ms Berice King, the Manager, Employee Relations and Payroll at the Association since 27 April 2015, swore an affidavit on 4 December 2015 concerning these matters. Ms King has inquired into the matters disclosed by Mr Farry and has discovered systemic administrative difficulties in the way the Association has managed the task of obtaining entry permits for its officials. Among other things there appears to have been confusion between different entry permits, noting that the Association’s officials including Mr Farry hold entry permits and work health and safety entry permits issued by the NSW Industrial Relations Commission. She said that the Association has now established robust systems and processes in place regarding the application, return and replacement of entry permits for its officials.

Consideration

[8] I will deal with the permit qualification matters specified in s.513(1) in turn. In relation to paragraph (a), I am satisfied that Mr Farry has received appropriate training about the rights and responsibilities of a permit holder. In relation to paragraphs (b) and (c), I am satisfied that Mr Farry has never been convicted of an offence against an industrial law or an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty, intentional use of violence against another person or intentional destruction of property. In relation to paragraph (d), I am satisfied that neither Mr Farry nor any other person has ever been ordered to pay a penalty under an Act or any other industrial law in relation to action taken by Mr Farry. In relation to paragraph (e), I am satisfied that on no occasion has an entry permit issued to Mr Farry under the FW Act or a similar law of the Commonwealth been revoked or suspended or made subject to conditions. In relation to paragraph (f), I find that no court, person or other body under a State or Territory industrial law or OHS law has ever cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes which Mr Farry had under that law or disqualified Mr Farry from exercising or applying for a right of entry for industrial or occupational health and safety purposes under that law.

[9] The matters otherwise disclosed in the application and the evidence fall to be considered under paragraph (g). It is necessary to say at the outset that what has been disclosed is serious indeed. What has occurred is that entry has been obtained to the premises of three employers by Mr Farry in circumstances where he had no lawful right to do so. To describe these visitations as consensual is misleading. Upon receiving an entry notice asserting the existence of a right of entry under the FW Act, each employer was entitled to believe that such a right was actually held. To allow entry without requiring inspection of an entry permit in these circumstances is not indicative of consent, but rather acquiescence to the exercise of a legal right that was assumed to exist.

[10] I am satisfied on the evidence that Mr Farry’s conduct in purporting to exercise rights of entry without a current entry permit was not intentional. Nevertheless it demonstrates a lack of diligence on his part to ensure that he conducted himself in accordance with the relevant requirements of the FW Act. That is a matter which goes to his fitness and propriety to hold an entry permit.

[11] Taking all the permit qualification matters into account, I am not satisfied that Mr Farry is at the current time a fit and proper person to hold an unconditional entry permit. However I consider that my concerns about his fitness and propriety would be addressed by the following conditions imposed under s.515:

(1) Mr Farry must take steps to verify that he holds a current entry permit under the FW Act before he issues any entry notice under the FW Act.

(2) Mr Farry must have his entry permit under the FW Act on his person at any time he exercises entry rights under the FW Act, and must produce that entry permit in accordance with the requirements of ss.489 and 497 (as applicable).

[12] I consider that these conditions are necessary in order to ensure that there is no repetition of the conduct disclosed in this matter.

Conclusion

[13] Taking all the permit qualification matters into account, I am satisfied that Mr Farry is a fit and proper person to hold an entry permit under the FW Act and that the discretion should be exercised in favour of him being issued with such an entry permit, subject to the permit being issued with the conditions identified. A separate order 1 will be issued to give effect to this decision.

VICE PRESIDENT

Appearances:

M. O’Halloran solicitor on behalf of the New South Wales Nurses and Midwives’ Association.

Hearing details:

2015.

Sydney:

14 December.

 1   PR575003

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