Re Health Services Union - Queensland Branch
[2015] FWC 18
•7 JANUARY 2015
| [2015] FWC 18 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.512 - Application for a right of entry permit
Health Services Union-Queensland Branch
(RE2014/1802)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 7 JANUARY 2015 |
Application by Health Services Union - Queensland Branch for an Entry Permit for an official - prior conviction for fraud - conditions of statutory powers - due civility etc.
[1] This decision concerns an application made by the Health Services Union - Queensland Branch (“HSU”), which seeks under s.512 of the Fair Work Act 2009 (“the Act”) that a right of entry permit be issued to an official of the HSU, Ms Anita Boyes.
[2] Such an application must be read subject to the relevant provisions of Part 3-4 of the Act, which set out the statutory scheme bearing upon the rights of entry of officials of registered organisations.
[3] In this respect, s.512 of the Act provides 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.
[4] Section 512 of the Act vests a discretion in the Commission to issue a right of entry permit to an official of an organisation upon the Commission being satisfied that the relevant official “is a fit and proper person to hold the entry permit.”
[5] For purposes of considering whether it can be satisfied that the relevant official is a fit and proper person to hold the entry permit the Commission must take into account the various permit qualification matters set out in s.513 of the Act.
[6] Section 513 of the Act 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.
[7] I observe further that s.513(1)(g) of the Act provides particularly broad scope for the Commission to take into account any other relevant (including contextual) matters that may be relevant to the exercise of the discretion other than the more particularised matters set out in s.513(1)(a) - s.513(1)(f) of the Act. Section 513(1)(g) of the Act is a ‘catch all’ provision that operates in much the same manner as s.387(h) of the Act (in relation to a discretionary finding as to whether a dismissal was harsh, unjust or unreasonable). It would therefore be unusual if a matter relevant to the exercise of the discretion under s.512 of the Act did not arise under s.513 of the Act.
Consideration
[8] I now turn to take into account each of the qualification matters set out in s.513 of the Act.
(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder
[9] The HSU has provided a statutory declaration by way of a Form F42 that Ms Boyes has received appropriate training about the rights and responsibilities of a permit holder under the Act. Ms Boyes has completed an approved “federal right of entry” course organised through the ACTU and the Union Education Foundation (TUEF). Ms Boyes’ own statutory declaration similarly declares.
(b) whether the official has ever been convicted of an offence against an industrial law
[10] Ms Boyes declares she has never 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
[11] In relation to s.513(1)(c)(ii) of the Act, Ms Boyes has declared that on 16 November 2009 she was convicted in the Queensland Magistrates Court (“the Court”) of an offence under s.135.2(1) of the Criminal Code (Commonwealth), being conduct that was contrary to that code in so far as Ms Boyes was found to have “obtained a financial advantage, namely social security payments, for herself from the Commonwealth knowing or believing that she was not eligible to receive that financial advantage.”
[12] Ms Boyes was convicted but no sentence was passed upon her. Instead, the Court released her upon her giving security by recognisance in the amount of $2000 and placed upon her a two-year good behaviour period (which expired on 16 November 2011).
(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
[13] Ms Boyes declares that she has not been ordered to pay a penalty under this Act or any other industrial law. Ms Boyes’ above mentioned declaration only goes to conduct contrary to the Criminal Code (Commonwealth), which is not an industrial law or a contravention under the Act.
(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
[14] Ms Boyes declares that she has not had revoked, suspended or been subjected to any conditions in relation to any permit under the Act or any other similar law of the Commonwealth, no matter whether in force.
(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
[15] Ms Boyes declares that she has been the subject of no action of the relevant kind by a court or other person or body under a state or territory industrial law.
(g) any other matters that the FWC considers relevant.
[16] Ms Boyes’ conviction as set out above took place in 2009, some five years prior to this application.
[17] Ms Boyes has declared that she discharged her obligations arising from the Court order of 16 November 2009 without issue of any kind.
[18] The conviction was not for an offence or a contravention of an industrial law or in relation to any OHS legislation.
[19] Ms Boyes has not been the subject of any contravention of a law relevant to the discharge of a right of entry role under the Act.
[20] Ms Boyes has not been the subject of any charge or conventional contravention of any other law of any kind in any jurisdiction subsequent to her conviction in 2009.
Conclusion
[21] Though in a dispute context under the Workplace Relations Act 1996 (“the WRA”), then Justice Munro made the following observations about the duties and responsibilities of permit holders (that remain pertinent to the discretionary finding the Commission is required to make under s.512 of the Act):
[36] I accept the thrust of Mr Lacy's submissions that the standard of conduct of a permit holder exercising power under Division 11A of Part IX is both a legitimate concern of the applicant, and a matter in which there is significant public and private interest. Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility, and avoidance of unnecessary obstruction in the exercise of the powers under Division 11A are not only to be expected, they are a statutory condition of the powers being retained.
[35] It is yet to be seen what may be said to justify a union representative indulging in alleged conduct that may leave him open to the accusation that he has acted like a union goon, or set up a fracas and commotion by barking like a dog, or whatever. But whatever may be said, very little justification for such conduct could be expected to apply to an agent exercising a public power and duty under the Act. The proposition needs only to be put for one point to be relatively obvious. If Ms Daniels, who has similar powers, an officer of the Australian Tax Office, or the like official so conducted themselves in exercise of their respective inspectorate and investigative powers, there would be little expectation of justification being made out. [My emphasis] Print S4571
[22] Prior convictions should be weighed carefully in respect of considerations under s.512 of the Act as the statutory power invests in a permit holder the right to enter private premises and inspect the private information of other persons, amongst other things. Persons convicted of fraud or deception, for example, may be ill-suited to managing privacy risks and private records. Others with convictions for violence or who have been subject to related court orders may be presumed to lack the impulse controls and reasonable civility that are features of statutory right of entry power.
[23] Past conduct, then, may be a relevant consideration for purposes of the discretionary finding as to whether a person seeking a right of entry permit is a fit and proper person under s.512 of the Act. Much will depend, however, on the circumstances in each case.
[24] In the current application, taking into account the permit qualification matters under s.513 of the Act, including the observations I have made under s.513(1)(g) of the Act, I am satisfied that Ms Boyes is a fit and proper person to hold an entry permit under Part 3-4 of the Act. A reasonable period of time has passed since Ms Boyes’ conviction of a contravention of the Criminal Code (Commonwealth) and there has been no subsequent relevant conduct evident, let alone conduct arising under any industrial-related legislation. Ms Boyes discharged her obligations pursuant to the Court order without disturbance or qualification, and has been of good behaviour for the Court’s purposes. There has been no further conduct that is relevant (at least that has been brought to my attention). Ms Boyes recently also has acquired through approved training knowledge of the rights and obligations of permit holders that arise under Part 3-4 of the Act.
[25] There is therefore no reasonable cause, in this context at least, for me to question Ms Boyes’ status as a fit and proper person to whom an entry permit should be granted. Ms Boyes’ future conduct, of course, is exposed to review under the Act.
[26] Given that I have reached the requisite state of satisfaction in relation to Ms Boyes being a fit and proper person under s.512 of the Act and that there are no other considerations relevant to the exercise of my discretion, I consider that that Ms Boyes is entitled to have issued to her a right of entry permit under the Act.
[27] Accordingly, following the publication of this decision I will issue a right of entry permit for Ms Boyes as an official of the HSU.
SENIOR DEPUTY PRESIDENT
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