Re Australian Salaried Medical Officers Federation

[2017] FWC 3282

[2017] FWC 3282

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Australian Salaried Medical Officers Federation
(RE2017/523); (RE2017/524); (RE2017/525) & (RE2017/541)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 16 JUNE 2017

Application for issue of right of entry permits to Geoffrey O'Kearney, Stuart Lindsay Miller, Niki Howells-Schramm & Grant Raymond Forsyth; application of general rule that training must be within 3 months of application; satisfied that fit and proper person; permits issued. .

[1] The Australian Salaried Medical Officers Federation (ASMOF) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of right of entry permits to its officials, Mr Geoffrey O’Kearney, Mr Stuart Lindsay Miller, Ms Niki Howells-Schramm and Mr Grant Raymond Forsyth (proposed permit holders). Mr Forsyth is employed as a Workplace Relations Advisor. Mr O’Kearney is employed as a CEO. Ms Howells-Schramm and Mr Miller are employed as Industrial Officers.

[2] The applications made by ASMOF contained declarations that each of the proposed permit holders had received appropriate training about the rights and responsibilities of a permit holder. The applications indicated that the proposed permit holders had completed approved training courses as outlined below:

● Mr O’Kearney – Federal Right of Entry course conducted by the ACTU on 30 October 2016;

● Mr Miller – Federal Right of Entry course conducted by the ACTU on 27 October 2015;

● Ms Howells-Schramm – Federal Right of Entry course conducted by the ACTU on 13 October 2016; and

● Ms Forsyth – Federal Right of Entry course conducted by the ACTU on 13 October 2016.

[3] A staff member of the Regulatory Compliance Brach of the Commission wrote to Mr O’Kearney on 8 May 2017 indicating that the Delegate would require Mr O’Kearney to complete refresher training. The justification for this request is discussed below at [4]. Mr O’Kearney responded to this correspondence on 9 May 2017, highlighting that he was not aware the there was a legal requirement, pursuant to the Act, that refresher training be undertaken. Mr O’Kearney also requested that the Commission use its discretion and waive the requirement, outlining a number of submissions to support that request.

[4] On 12 May 2017, the same staff member wrote to Mr O’Kearney regarding the four applications the subject of this decision. The staff member indicated that the Commission had “carefully considered” the reasons that were provided in Mr O’Kearney’s email of 9 May 2017, but as per the general rule, the Delegate requires that all proposed permit holders complete right of entry training within 3 months of a right of entry application.The staff member also indicated that in the alternative, ASMOF may elect to have the applications determined by a member of the Commission.

[5] On 17 May 2017, Ms Howells-Schramm wrote to the Commission and requested that each of the matters be heard by a member of the Commission.

[6] On 7 June 2016, I heard and determined the applications. I delivered my decision ex tempore and it is recorded in transcript on 7 June 2016. In the hearing I indicated that I would, in due course, publish reasons for my decision. Those reasons are as follows.

Relevant statutory provisions and application

[7] Subdivision A, Division 6 of Part 3 – 4 of the Act contains provisions dealing with entry permits. So far as it is relevant for present purposes these provide as follows:

“512 FWC may issue entry permits

The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.

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.

514 When the FWC must not issue permit

The FWC must not issue an entry permit to an official at a time when a suspension or disqualification, imposed by a court or other person or body:

(a) applies to the official’s exercise of; or

(b) prevents the official from exercising or applying for; a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory OHS law.

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).”

[8] In Maritime Union of Australia v Fair Work Commission and Another 1 (MUA), a Full Court of the Federal Court of Australia considered the question of whether a person is a fit and proper person in the context of the right of entry regime established by Part 3 – 4 of the Act. The Full Court observed the following:

“[13] Although the questions for resolution may be stated simply, it is important to recognise at the outset that Part 3–4 of the Fair Work Act fundamentally modifies common law rights.

[14] A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union(1987) 18 FCR 51 at 61– 62 thus observed:

‘The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.’

See also: Lane v Arrowcrest Group Pty Ltd(1990) 27 FCR 427 at 439–440 per von Doussa J.

[15] Section 480, extracted at 8 above, sets out that the object of Part 3–4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3–4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not ‘untrammelled’ and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a ‘permit holder’ renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.

[16] It is thus not surprising that the legislature has confined the category of persons who may be clothed with such powers to those persons who are ‘fit and proper’.

[17] The phrase a ‘fit and proper person’ is used in many different statutory contexts: e.g., Customs Act 1901(Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase ‘fit and proper person’ by expressly including a reference to whether an individual is of ‘good fame, integrity and character...’: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:

‘The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.’” 2 

[9] The Full Court ultimately concluded that when the Commission is deciding whether to issue an entry permit pursuant to s.512 of the Act, those considerations relevant to the exercise of the power in s.513 of the Act are not confined, for example, to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the Commission, at least initially. However, the prospect remains for judicial review founded upon, for example, alleged unreasonableness. 3   

[10] The Full Courtalso concluded that conditions may be imposed pursuant to s.515 of the Act to remedy or address deficiencies or reservations in respect of a proposed permit holder, which deficiencies or reservations could otherwise lead to the conclusion that the person was not fit and proper. 4  

[11] Before MUA was decided, the relevant principles applicable to applications of this kind were usefully summarised by Vice President Hatcher in Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 5  as follows:

● “A ‘fit and proper’ standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.

● The expression ‘fit and proper person’ in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit.

● The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a ‘fit and proper person’ per se, but rather whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.

● The question of whether an official is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights.

● The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.

● The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.

● While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).

● Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.” 6 

[12] It would seem to me self-evident, having regard to the structure and content of s.513, that in deciding whether an official of a registered organisation is a fit and proper person to hold an entry permit, all of the permit qualification matters identified in s.513(1) of the Act must be taken into account. Whilst it will often be the case that the likely area of focus and attention during a contested application will be on contravening conduct of an official giving rise to the matters identified in s.513(1)(d) of the Act, the other permit qualification matters cannot be ignored and must be given appropriate weight. The absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight.

[13] There is nothing in the Vice President’s summary which is inconsistent with the views expressed by the Full Court in MUA save, that the summary needs to be modified to take into account the permit qualification matters and the assessment of the fitness and propriety of a proposed permit holder, in light of the power to impose conditions when a permit is issued and the Full Court’s observations about weight attaching to the permit qualification matters. 7   With those modifications and the observation I have made in the preceding paragraph, I respectfully agree with and adopt the Vice President’s summary.

[14] I turn to consider the application.

Consideration

Permit qualification matters – s.513(1)(b), (c), (d), (e), (f) and (g)

[15] According to the declarations filed by ASMOF in support of the applications for the grant of permits to the proposed permit holders (the Declarations):

• They have never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);



• They have never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act;



• They have not ever been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by the official (s.513(1)(g) of the Act);



• They have 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) of the Act);



• They have not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that they held under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(i) of the Act); and



• They have not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(ii) of the Act).

[16] I accept that this information as disclosed in the Declarations concerning these matters is accurate and correct. Each of these permit qualification matters in each case weighs in favour of a conclusion that each proposed permit holder is a fit and proper person to hold an entry permit.

Permit qualification matters – s.513(1)(a)

[17] As a result of a review undertaken by the Regulatory Compliance Branch of the Commission in 2015, a general rule has been postulated by the Delegate regarding right of entry training. That general rule is that every application made to the Commission for a right of entry permit must be accompanied by evidence of approved right of entry training having been completed by the proposed permit holder within 3 months of the application being made in order for that training to meet the requirement of ‘appropriate training’ set out in s.513(1) of the Act.

[18] In CFMEU (Re: Gambian) 8, Senior Deputy President Hamberger considered the so called “general rule” and observed:

“[25] It is clearly desirable that permit holders receive regular training to ensure their knowledge of the rights and responsibilities of permit holders remains current. It is reasonable that the Delegate adopt a general rule that prospective permit holders have completed right of entry training within three months of the time an application for a permit under s.512 is lodged. This means that holders of entry permits generally receive refresher training every three years.

[26] However any such general rule has to be subject to the overriding statutory obligation to determine whether a person is fit and proper to hold an entry permit, having regard to all the permit qualification matters. No such rule can be applied rigidly.” 9

[19] I agree with most, but not all of the observations. I do not consider that the adoption of the general rule is reasonable. To the contrary, the adoption and application of the general rule by the Delegate amounts to the imposition of an improper self-restraint or fetter upon the exercise of the discretion conferred by s.512 of the Act.

[20] As a general principle, those exercising statutory discretionary power should not place fetters upon the factors that can (or must) properly be considered when exercising the discretion in individual cases. The purpose underpinning the general principle is to ensure that the holders of discretionary power remain attentive to each individual circumstance, 10 and to prevent bureaucrats from transforming statutory discretions into de facto rules.

[21] As should be apparent from the earlier discussion about the proper exercise of the discretion conferred by s.512 of the Act, the assessment of whether an official is a fit and proper person to hold an entry permit, is generally speaking, an assessment involving the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the requisite standard is required. By s.513, there is a requirement to take into account the enumerated permit qualification matters, only one of which is whether the official has received appropriate training about the rights and responsibilities of a permit holder. The requirement that the permit qualification matters be taken into account means that the consideration of them must be treated as a central element in the determinative process and that each matter must be given proper, genuine and realistic consideration and apportioned appropriate weight.

[22] The general principle discussed above does not prevent the development of guidance material for the exercise of a discretionary power provided it conforms to the empowering Act’s subject matter, scope, purpose and detail. For example, guidance material might be developed which has the effect of requiring further enquiry of proposed permit holders beyond merely production of a completion certificate in cases where training has been received beyond a pre-determined period before the application for a permit has been made. Such guidance could set out the particular matters to which the further inquiry is to be directed. If, however, the effect of the guidance material results in the exercise of the discretion in a way that omits considerations that the decision-maker is bound to take into account, it will fall foul of the principle. Some statutes might even reasonably be interpreted as contemplating that their wide discretions will be followed up with policies or guidelines to govern their application. In Minister for Immigration, Local Government and Ethnic Affairs v Gray 11 French and Drummond JJ so opined and then observed:

“This is particularly so in the case of a power which involves high volume decision-making or which may, in any event, because of its subject matter, be expected to attract policy guidelines. Certain classes of immigration decision are necessarily high volume, such as those relating to the grant of visas and entry permits. The exercise of the power to deport involves a direct interference with individual liberty. Common concepts of justice suggest that, while each case is to be considered on its individual merits, like cases will generally be treated similarly. The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question. They cannot be expressed to fetter the exercise of the relevant discretion.” 12

[23] As earlier stated, the general rule adopted by the Delegate is that “every application for a RoE permit received at the FWC in 2006 will be required to be accompanied by evidence of approved ROE training received within three months of the application being made in order for that training to meet the requirement of ‘appropriate training’ set out in s 513(1) of the FW Act.” 13

[24] The adoption of the general rule has the effect of pre-determining that any training about the rights and responsibilities of a permit holder received by an official outside of the period of three months before an application has been made, is not appropriate training. The application of the general rule in this way takes no account of the appropriateness of the training received, nor of the particular individual circumstances of the official in the context of the training received. The time that passes between undertaking training and an application is plainly relevant to the assessment of whether the training undertaken is appropriate. But, the passage of time needs to be assessed in context, not in a vacuum. Thus, recent and repeat training received by an official might on its own seem appropriate, but when coupled with a history of conduct that suggests a disregard for the right of entry provisions whilst the permit holder was entering premises, might appropriately raise questions about whether more tailored or intensive training is appropriate. Plainly, it also raises other issues. Conversely, training undertaken several years prior to an application might be appropriate notwithstanding the passage of time in circumstances where the proposed permit holder, is a current permit holder, has held several permits, has routinely exercised entry rights without incident, and there has been no alteration to the right of entry scheme since the last training has been undertaken.

[25] By reason of the general rule, no account is taken of the experience of the official in exercising permit holder rights. No account is taken of any other skills or qualifications that the official might possess which are relevant to assessing whether the training actually received by the official is appropriate. Indeed there appears to be no rational explanation why training undertaken 3 months prior to an application being made is appropriate but that undertaken 14 weeks prior to the application is not. Moreover, the general rule assumes, without explanation, that merely because training was undertaken within the pre-determined period, that training was appropriate training. The general rule bears all the hallmarks of arbitrariness, which is a poor substitute for considered and rational decision-making.

[26] As earlier indicated the appropriateness of the training consideration is but one of a number of matters that must be taken into account in assessing whether an official is a fit and proper person to hold an entry permit. The application by the Delegate of the general rule has the effect, not only of misapplying the training consideration as indicated above, but also of ignoring the other permit qualification matters which must be taken into account in making the assessment. That this is so in the instant case is evident in the correspondence of 12 May 2017 sent to ASMOF in relation to the four officials for whom right of entry permits are sought. That correspondence advised ASMOF that “in order for the above permits to be issued by the delegate . . . each of the above officials will need to undertake new right of entry training”.

[27] The Delegate is thereby refusing to exercise the discretion unless each proposed permit holder undertakes further training, without regard to the quality of the training already received, the individual circumstances and experience of the officials and the other permit qualification requirements. Moreover, as a consequence there is a lack of any consideration as to whether in these circumstances, a condition as to further training might be imposed on entry permits issued rather than the blanket refusal as is evident in the correspondence of 12 May 2017.

[28] It is doubtless the case that appropriate training of officials about the rights and responsibilities of a permit holder is an important feature of the right of entry scheme established by the Act. That this is so was also recognised in the Final Report of the Royal Commission into Trade Union Governance and Corruption (TURC). The TURC Final Report recommended that: “ . . . there should be:

(a) an obligation to undertake right of entry training annually;

(b) a requirement at the very least for this training to have been undertaken in the 12 months preceding an application for each new right of entry permit; and

(c) an obligation that the training that is undertaken be approved by the Fair Work Commission, to ensure that there is a satisfactory minimum standard of training that adequately addresses the rights and obligations of the permit holders.” 14

[29] To give effect to this recommendation, TURC proposed the following legislative amendment:

“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 completed approved permit holder training, within 12 months preceding the date of the application;” 15

[30] The general rule adopted by the Delegate bears a striking similarity to the legislative amendment proposal although the general rule is plainly more ambitious. The Parliament has not given effect to the legislative proposal. The general rule adopted by the Delegate seeks to impose, by administrative fiat, that which ought properly be the province of the Parliament to determine, and which, putting to one side the merits of the proposal, is not an imposition which the Parliament has thus far seen fit to adopt.

[31] To borrow from a passage of the judgement of Pincus J in Perder Investments Pty Ltd v Elmer 16 “the principle underlying the rule against replacement of a statutory discretion by a statutory prohibition is simply respect for Parliamentary sovereignty. Where Parliament says that in certain circumstances there is a discretion to grant permission, then no official may replace that law by one to the opposite effect - for example, by a law requiring that in no circumstances shall permission be granted” or as is the case here, by a rule that only persons who have completed the requisite training within three months will be considered for the grant of an entry permit.

[32] Fettering of a discretion occurs when, rather than exercising its discretion to decide the individual matter before it, an administrative body binds itself to policy or to the views of others. The application of the general rule adopted by the Delegate has this effect. Although an administrative decision-maker may properly be influenced by policy considerations and other factors, he or she must put his or her mind to the specific circumstances of the case and not focus blindly on a particular policy to the exclusion of other relevant factors. The application of the general rule does not just “influence”, it has the effect of causing the Delegate to focus blindly on it to the exclusion of the matters that must be taken into account

[33] Turning to the specific training undertaken by each of the proposed permit holders. Mr O’Kearney completed right of entry training on 30 October 2016, Mr Forsyth on 14 October 2016, Ms Howells–Schramm on 13 October 2016 and Mr Miller on 27 October 2015. Each undertook the training through the ACTU Organising Centre. Mr Miller completed his right of entry training whilst he was an industrial official at the Health Services Union (New South Wales branch). Ms Howells-Schramm completed her right of entry training whilst working at The Association of Professional Engineers, Scientists and Managers, Australia. Both Mr O’Kearney and Mr Forsyth appear to have completed their training during their employment with ASMOF.

[34] It is well accepted, and there is no suggestion to the contrary, that the training provided through the ACTU Organising Centre about federal right of entry under the Act is relevant, up-to-date and appropriate.

[35] Messers Forsyth and Miller and Ms Howells–Schramm have previously held entry permits and exercised entry rights pursuant to those permits without known incident or issue. In the case of Mr Forsyth, he has held two permits under predecessor legislation and two permits under the Act. In the case of Mr Miller, he has held two permits under the Act and in the case of Ms Howells–Schramm, she has held one previous permit under the Act. Moreover, both Mr Forsyth and Mr Miller held permits under the Act during a period after the most recent amendments to the right of entry scheme under the Act came into operation.

[36] There have been no relevant legislative changes to the right of entry scheme since each proposed permit holder completed the relevant entry training. The training undertaken by each proposed permit holder was, in the circumstances, reasonably proximate to the application for the issue of a permit, and it is uncontroversial, and I accept that each proposed permit holder has a good understanding of the rights and responsibilities of a permit holder under the Act. Moreover none of the proposed permit holders has any prior history or issues with right of entry in relation to their employment with registered organisations which might suggest that additional or further training might be required. Finally, the training undertaken by each proposed permit holder is training that is the subject of right of entry training packages approval process maintained and administered by staff of the Commission.

[37] For these reasons I am satisfied in each case that the proposed permit holder has received appropriate training about the rights and responsibilities of a permit holder. That each proposed permit holder has completed appropriate training weighs in favour of a conclusion that each is a fit and proper person to hold an entry permit.

Conclusion

[38] Taking into account the permit qualification matters, I am satisfied that each of:

● Mr Geoffrey O’Kearney;

● Mr Stuart Lindsay Miller;

● Ms Niki Howells-Schramm; and

● Mr Grant Raymond Forsyth

is a fit and proper person to hold a right of entry permit.

[39] Pursuant to my decision on 7 June 2017, entry permits have been issued.

DEPUTY PRESIDENT

Appearances:

Ms N Howells-Schramm on behalf of the Australian Salaried Medical Officers Federation

Hearing details:

2017.

7 June.

Melbourne.

 1 [2015] FCAFC 56

 2   Ibid at [13]–[17]

 3   Ibid at [42]

 4   Ibid at [43]

 5   [2015] FWC 1522

 6   Ibid at [32]

 7 [2015] FCAFC 56 at [25] and [43]

 8   [2017] FWC 1858

 9   Ibid

 10   ID v Director-General, Department of Juvenile Justice (2008) 73 NSWLR 158

 11 (1994) 50 FCR 189

 12   Ibid at 206

 13   Email from Delegate to Registered Organisations Secretaries, dated 22 March 2016 at 2.36pm

 14   Commonwealth, Royal Commission into Trade Union Governance and Corruption, Final Report (2015) vol 5, 589

 15   Ibid, 638

 16 [1991] FCA 212 at [21]; (1991) 23 ALD 545 at [549]

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