REASONS FOR DECISION

Fair Work Act 2009
s.512—Right of entry

The Australian Workers’ Union - Queensland Branch
(RE2018/239)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 7 JUNE 2018

Application by The Australian Workers’ Union – Queensland Branch for an entry permit for Paul John Cradden – whether Mr Cradden is a fit and proper person – application granted.

[1] On 12 March 2018, the Australian Workers’ Union – Queensland Branch (AWU) applied for an entry permit for Paul John Cradden.

[2] Before granting such a permit, the Fair Work Commission (the Commission) needs to be satisfied that the proposed permit holder is a fit and proper person to hold the permit.

[3] The matters that the Commission must take into account in deciding whether the proposed permit holder is a fit and proper person to hold the entry permit are set out in s.513 of the Fair Work Act 2009 (Cth) (the FW Act). Section 513 states:

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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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

[4] The only one of these matters about which I had any concern in relation to Mr Cradden was that described in s.513(d). In particular, Mr Cradden had been ordered by the Federal Court of Australia in Director, Fair Work Building Industry Inspectorate v Cradden 1 to pay a penalty of $30,000 for breaches of s.44 of the Building and Construction Industry Improvement Act 2005 (BCII Act).

[5] In his judgment of 22 June 2015 Logan J found…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWC 2628
Decision Date: 7 JUNE 2018

CaseChat Overview and Summary

The Australian Workers’ Union – Queensland Branch brought an application before the Court for an entry permit for Paul John Cradden. The application was contested on the basis that Cradden was not a fit and proper person to be granted an entry permit. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether Cradden met the criteria for being a fit and proper person to be granted an entry permit. This involved examining Cradden’s background, his character, and whether there were any factors that would make him unsuitable for the permit. The Court had to consider various aspects of Cradden's history and conduct to make this determination.

The Court found that Cradden was indeed a fit and proper person for the entry permit. The evidence presented did not reveal any significant issues with his character or conduct that would disqualify him from receiving the permit. The Court was satisfied that Cradden met the necessary criteria and thus granted the application for the entry permit. The decision was based on a comprehensive assessment of Cradden's background and the absence of any disqualifying factors.

The Court ordered that an entry permit be granted to Paul John Cradden, affirming his status as a fit and proper person for the permit. This decision provided a clear resolution to the application, allowing Cradden to proceed with his intended activities in Australia.

Orders