Ryan Whakaruru
[2023] FWC 933
•20 APRIL 2023
| [2023] FWC 933 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512 - Application for a right of entry permit
Ryan Whakaruru
(RE2023/119)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 20 APRIL 2023 |
Application for a right of entry permit for Mr Ryan Whakaruru
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 Mr Ryan Whakaruru, an official of the union who is employed in its construction and general division.
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 a 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. That section 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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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.”
The materials filed by the CFMMEU in support of the application for the grant of an entry permit to Mr Whakaruru attest to the following matters:
· Mr Whakaruru has never been convicted of an offence against an industrial law (s 513(1)(b));
· Mr Whakaruru 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));
· Save as specified below, Mr Whakaruru has not been ordered to pay a pecuniary penalty under the Act or any other industrial law in relation to action taken by him (s 513(1)(d));
· Mr Whakaruru 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 Whakaruru 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)).
The CFMMEU also provided to the Commission a certificate that it issued to Mr Whakaruru certifying that on 2 February 2023 he completed the course ‘Federal Right of Entry under the Fair Work Act 2009’, which in general terms appears to me to be appropriate training for the purpose of s 513(1)(a). However, this course does not appear to have covered training in relation to the exercise of entry rights under Subdivision AA of Division 2 of Part 3-4 of the Act, which relates to entry rights for the purpose of investigating suspected contraventions concerning TCF award workers. Following the merger of the Textile Clothing and Footwear Union of Australia with the CFMMEU, the latter’s rules cover TCF award workers, and a CFMMEU permit holder may exercise rights under Part 3-4 to enter premises where such work is undertaken. There are certain peculiarities of TCF award work that warrant training on the exercise of rights of entry to premises where it is undertaken. I advised the CFMMEU that, consistently with other recent decisions of the Commission (see for example CFMMEU v Kylie Ann Brown[2022] FWC 2407, Gostencnik DP), I would propose to impose a condition on any permit issued to Mr Whakaruru to the effect that he must not exercise rights under Subdivision AA of Division 2 of Part 3-4 of the Act unless he completes appropriate training in relation to that Subdivision and provides a copy of the training completion certificate to the Commission. The CFMMEU confirmed that Mr Whakaruru does not deal with such matters and will not be exercising entry rights under that part of the Act. It did not wish to be heard in relation to the proposed condition.
The declarations that were initially submitted by the CFMMEU did not disclose any relevant information in relation to the permit qualification matter in s 513(1)(d). Two relevant decisions were identified by the Commission and drawn to the union’s attention. The CFMMEU industrial officer who submitted the application explained to the Commission that he had undertaken the relevant searches but mistakenly provided the incorrect paperwork to the union’s administrative staff. The officer stated that he has since instructed the head of the administrative team to cross-check the results of searches with draft declarations prior to filing, so as to ensure that this issue does not arise again. The officer explained that the error was his, and not the fault of Mr Whakaruru or the administrative staff, and that he had briefed the union’s secretary on this matter. I accept that the failure to disclose the two decisions was an inadvertent error and that appropriate steps have been taken to ensure that it will not recur.
The revised declarations submitted by the CFMMEU address the permit qualification matter referred to in s 513(1)(d). On 9 March 2018, the Federal Court imposed a pecuniary penalty on Mr Whakaruru for contraventions of ss 343 and 417 of the Act (Australian Building and Construction Commissioner v Ingham and Others [2018] FCA 263). That matter concerned an application by the regulator for the imposition of penalties on the CFMMEU and a number of its officers, organisers, and delegates in respect of contraventions of ss 343, 417 and 421 of the Act during an industrial dispute between the union and John Holland Qld Pty Ltd (John Holland) that took place over the course of 2013, which concerned the company’s refusal to enter into an enterprise agreement with the CFMMEU on terms sought by the union. Mr Whakaruru was an employee of John Holland and a delegate of the CFMMEU. Mr Whakaruru admitted to the Court that on 9 August 2013 he had contravened s 343 (action with intent to coerce another person to exercise a workplace right etc.) and s 417 (engaging in industrial action before the nominal expiry date of an enterprise agreement etc.). The Court imposed on Mr Whakaruru a single penalty of $3,500.
The revised declarations submitted by the union also note that on 12 July 2019, the Federal Circuit Court imposed pecuniary penalties on Mr Whakaruru for contraventions of s 417 of the Act (Australian Building and Construction Commissioner v Myles and Others (No 2) [2019] FCCA 1932). That matter concerned the involvement of Mr Whakaruru in an industrial dispute between John Holland and a number of its employees that arose in September 2014, which related to a belief among some workers that the company’s safety advisor had provided certain personal details of employees to the Fair Work Building and Construction Commission. Mr Whakaruru admitted to leaving his work site and performing no work on 11 and 12 September 2014. The Court imposed on Mr Whakaruru two penalties of $3,750.
The permit qualification matters in s 513(1)(a), (b), (c), (e) and (f) all weigh in favour of granting the application. As to s 513(1)(d), the fact that Mr Whakaruru was twice ordered to pay pecuniary penalties weighs against the granting of a permit. This is a serious matter. However, it is moderated by the fact that the contraventions occurred many years ago. Since September 2014, Mr Whakaruru has not engaged in conduct that has led to the imposition of penalties. There is no basis to apprehend that he will do so again. Further, the contravening conduct occurred at a time before Mr Whakaruru became a union official.
In all the circumstances, I am satisfied that Mr Whakaruru is a fit and proper person to hold an entry permit. I therefore exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Whakaruru with an entry permit. I will impose the condition referred to above. The application is granted, and an entry permit will be issued to Mr Whakaruru separately.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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