The Construction, Forestry, Mining and Energy Union of Workers

[2015] FWC 1529

[2015] FWC 1529

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

The Construction, Forestry, Mining and Energy Union of Workers
(RE2015/111)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 16 MARCH 2015

Application by The Construction, Forestry, Mining and Energy Union of Workers - Western Australia Branch for an Entry Permit.

[1] The Construction, Forestry, Mining and Energy Union of Workers - Western Australia Branch, applied under s.512 of the Fair Work Act 2009 that a right of entry permit be issued to an official of the CFMEU, Mr Philip Kennedy.

[2] The matter was listed for eHearing on 5 March 2015 at 10.00am. No party contacted my chambers seeking an attendance hearing.

[3] 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] The issuing of a permit is predicated on 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 is 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.

Consideration

[7] 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

[8] The CFMEU has provided a statutory declaration by way of a Form F42 that Mr Kennedy has received appropriate training about the rights and responsibilities of a permit holder under the Act. Mr Kennedy has been trained in accordance with a programme developed by the CFMEU - Construction and General Division National Office. Mr Kennedy’s own statutory declaration declares same.

(b) whether the official has ever been convicted of an offence against an industrial law

[9] Mr Kennedy declares he 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

[10] Mr Kennedy declares he has never been convicted of an offence outlined in s.513(1)(c).

(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

[11] Mr Kennedy declares that he has not been ordered to pay a penalty under this Act or any other industrial law.

(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

[12] Mr Kennedy declares that he has not had revoked or suspended any permit issued under Part 3-4 of the Act or a similar law of the Commonwealth (no matter when in force) but has had a permit made subject to conditions.

[13] The condition imposed was pursuant to a Consent Order issued by then Senior Deputy President Lacy on 18 November 2008 which relevantly stated:

4. The following condition is imposed on all current permits and all permits to be issued in the next 2 years in respect of the Construction and General Division, Western Australia Divisional Branch of the CFMEU:

“The permit holder is not permitted to enter or remain on premises being construction sites in the company of, or in concert with, Joseph McDonald except where McDonald has been invited in advance on to those premises by an owner and has complied with the requirements of the direction in order 5.” 1

[14] I note the period of time in which the condition applied has now ceased.

(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] Mr Kennedy declares that he 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] The Director of the Fair Work Building Inspectorate has currently before the Commission applications to restrict Mr Kennedy’s permit. That application is stayed by consent pending the outcome of penalty proceedings brought by John Holland Pty Ltd against Mr Kennedy in the Federal Court. In those proceedings it is alleged that Mr Kennedy breached s.500 of the Act. As there has been no findings in relation to any of the allegations in those matters I do not consider that they are relevant to this matter.

Conclusion

[17] Having had regard to the permit qualification matters under s.513 of the Act, I am satisfied that Mr Kennedy is a fit and proper person to hold an entry permit under Part 3-4 of the Act.

[18] Given that there are no other considerations relevant to the exercise of my discretion, I consider that Mr Kennedy is entitled to have issued to him a right of entry permit under the Act.

[19] Accordingly, following the publication of this decision, a right of entry permit for Mr Kennedy as an official of the CFMEU will be issued.

DEPUTY PRESIDENT

 1   PR984581.

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