The Association of Professional Engineers, Scientists and Managers, Australia

[2020] FWC 6396

[2020] FWC 6396

FAIR WORK COMMISSION

DECISION

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

The Association of Professional Engineers, Scientists and Managers, Australia
(RE2020/895)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 10 DECEMBER 2020

Application for a right of entry permit for Thomas Edward Fawkner Raue – whether fit and proper person to hold an entry permit under the Act – satisfied that Mr Raue is a fit and proper person to hold a permit – permit issued.

[1] The Association of Professional Engineers, Scientists and Managers Australia (APESMA) has applied 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, Thomas Edward Fawkner Raue. Mr Raue is employed by APESMA as an Organiser.

[2] Mr Raue was previously issued an entry permit in his capacity as an Organiser of APESMA which expired on 30 May 2020.¹ On 28 May 2020 Mr Raue emailed the Fair Work Commission stating that his permit was lost. Mr Raue subsequently provided a statutory declaration dated 28 June 2020 in relation to the loss of his permit. As Mr Raue’s permit expired on 30 May 2020, it is not necessary to issue an order revoking this permit.

[3] In addition to the above entry permit, Mr Raue has previously been issued entry permits as an official of United Voice. 2

[4] For a permit to be issued to Mr Raue, I need to be satisfied that he is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters.

Relevant statutory provisions and application

[5] The applicable principles for determining right of entry permit applications under s.512 are well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder the subject of an application for a permit is assessed taking into account the permit qualification matters set out in s.513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in someabstract sense. The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit, and to exercise the powers, functions and responsibilities attached to holding a permit. 3 The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.

[6] The permit qualification matters contained in s.513(1) are mandatory considerations which must be considered and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend), 4 that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision-making process.5 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:6

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant”. 7

[7] The weight given to a matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend: 8

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power... I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”.” 9

[8] Having regard to the structure and content of s.513, in deciding whether a proposed permit holder 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. 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.

[9] Section 513(1)(g) of the Act requires the Commission to take into account any other matter it considers relevant. A matter will be relevant if it can rationally affect the assessment of whether the proposed permit holder is a fit and proper person to hold an entry permit. Matters that may be relevant and therefore fall to be considered under s.513(1)(g) are matters that relate to the personal characteristics of the proposed permit holder and are pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.

[10] I turn to consider the application.

Consideration

[11] In support of its application APESMA filed declarations by Mr Raue and Mr Small, the National Secretary of APESMA (the Declarations). As the Declarations disclosed potentially adverse matters discussed below, APESMA was asked to file submissions in support of its application. APESMA subsequently filed submissions on 23 November 2020.

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

[12] According to the Declarations:

•  Mr Raue has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 4 June 2020 (s.513(1)(a) of the Act)); 10

•  Mr Raue has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act); 11

•  Mr Raue has been not 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)(i) or (ii) of the Act. 12

•  Neither Mr Raue nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him (s.513(1)(d) of the Act); 13

•  Mr Raue 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) of the Act);  14

•  Mr Raue has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Raue 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); 15 and

•  Mr Raue has 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

[13] I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. These matters weigh in favour of a conclusion that Mr Raue is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s.513(1)(c)(iii)

[14] The declarations disclose that Mr Raue has been convicted of an offence against a law of the State of New South Wales, involving conduct described in s.513(1)(c)(iii) of the Act. 17

[15] On 10 April 2018, Mr Raue was convicted of an offence under s.195(1)(a) of the Crimes Act 1900 (NSW), which prohibits the intentional or reckless destruction or damage of property belonging to another.

[16] In his declaration, Mr Raue sets out the circumstances of his conviction, including the following:

•  The offence occurred on 10 November 2017, while in attendance of a protest in support of refugees seeking asylum in Australia;

•  Mr Raue was one of several protesters who grabbed a temporary chain link fence that had been erected to block protesters, causing it to become temporarily disconnected;

•  Mr Raue presented himself at Redfern Police Station after the Daily Telegraph published photos of several protestors, including Mr Raue, saying they were wanted for questioning;

•  Mr Raue agreed to plead guilty to the charge of Damage to Property. 18

[17] APESMA submits that Mr Raue’s conviction does not impact his status as a fit and proper person suitable to hold a permit. 19 APESMA made the following submissions in relation to the offence:

•  Mr Raue’s actions were not premeditated or intentional; 20

•  The offence was committed outside an employment or industrial context; 21

•  Mr Raue’s action did not cause any long-lasting or permanent damage to the property; 22

•  Mr Raue’s actions in committing the offence were not malicious; 23

•  By turning himself into police and pleading guilty he has acknowledged wrongdoing; 24

•  Mr Raue has disclosed his conviction, displaying an understanding of his rights and responsibilities as a potential permit holder. 25

[18] I do not accept the submission that the offending was not intentional. Intention or at least recklessness was an element of the offence to which Mr Raue pleaded guilty. I also do not place any significant weigh on the fact that the offending occurred outside of the employment context. The permit qualification matter in s.513(1)(c)(iii) of the Act is not so confined. Although Mr Raue acknowledged wrongdoing, he did so after it became apparent that he might otherwise be identified. Whatever altruistic or political motivation moved Mr Raue to attend the protest, these do not justify engaging in criminal damage to property. Overall, this matter is not insignificant and should be accorded appropriate weigh in the assessment I must make. It weighs against a conclusion that Mr Raue is a fit a proper person to hold an entry permit.

[19] However, the assessment is to be conducted having regard to all the permit qualification matters, which, apart from this matter, all point the other way. Moreover, Mr Raue has previously held an entry permit and there is no suggestion of Mr Raue engaging in any relevant contravening conduct while a permit holder or more broadly as an official. There are also no other matters which engage with the permit qualification matter in s.513(1)(c)(iii).

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

[20] There are no other matters of which I am aware that are relevant to the determination of whether Mr Raue is a fit and proper person to hold an entry permit.

Conclusion

[21] Taking all the permit qualification matters into account, for the reasons earlier stated I am satisfied that Mr Thomas Edward Fawkner Raue is a fit and proper person to hold an entry permit. The application by the APESMA for an entry permit to be issued to Mr Raue is granted.

[22] A permit will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR724953>

1 RE2017/623

 2   RE2015/1371

 3   Maritime Union of Australia [2014] FWCFB 1973 at [23]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, [2015] FWC 1522 at [32]

 4 [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional

Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the

Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

 5   Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and

Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail

Association v Fair Work Commission [2014] FCAFC 118

 6 (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62]

and by Katzmann J in Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74

at [103]

 7 (1987) 16 FCR 167 at 184

 8 [1986] HCA 40, (1986) 162 CLR 24

 9   Ibid at [15], p 41

 10   Form F42, Declaration by proposed permit holder dated 22 September 2020 at (a) and ACTU, Statement of completion

 11   Ibid at (b)

 12   Ibid at (c)

 13   Ibid at (d)

 14   Ibid at (e)

 15   Ibid at (f)

 16   Ibid at (g)

 17   Ibid at (c)

 18   Ibid at Attachment 1 – Continuation of declaration by proposed permit holder

 19   APESMA submission, 23 November 2020 at [37]

 20   APESMA submission, 23 November 2020 at [15]-[16]]

 21   APESMA submission, 23 November 2020 at [17]-[20]]

 22   APESMA submission, 23 November 2020 at [23]-[24]]

 23   APESMA submission, 23 November 2020 at [25]

 24   APESMA submission, 23 November 2020 at [27]-[29]

 25   APESMA submission, 23 November 2020 at [30]-[31]