Transport Workers’ Union of Australia

[2022] FWC 2035

[2022] FWC 2035

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Transport Workers’ Union of Australia

(RE2022/934)

DEPUTY PRESIDENT MOLTONI BRISBANE, 1 AUGUST 2022

Application for a right of entry permit for Emily Theresa McMillan – whether fit and proper person to hold an entry permit under the Act – satisfied Ms McMillan is a fit and proper person to hold a permit – permit issued.

1. The Transport Workers Union Australia (TWU) 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, Emily Theresa McMillan. Ms McMillan is employed by the TWU as Chief of Campaigns.

Relevant statutory provisions and application

1. 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 some abstract 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.[1] 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.

1. The permit qualification matters contained in s.513(1) are mandatory considerations which must be taken into account 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,[2] 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,[3] which must be evaluated and accorded appropriate weight.[4]

1. The weight given to a particular matter is ultimately a matter for the Commission, however in ascribing weight to each matter care should be taken to ensure that a relevant factor of great importance is given adequate weight and that excessive weight to a relevant factor of no great importance is not ascribed.[5]

1. 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.

1. 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.

1. I turn to consider the application.

Consideration

1. In support of its application the TWU filed declarations by Ms McMillan and Mr Nicholas McIntosh, National Assistant Secretary, Transport Workers Union Australia (the Declarations).

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

1. According to the Declarations:

·   Ms McMillan 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 31 March 2022 (s.513(1)(a) of the Act));[6]

·   Ms McMillan has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);[7]

·   Ms McMillan has never 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) of the Act;[8]

·   Neither Ms McMillan 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 her (s.513(1)(d) of the Act);[9]

·   Ms McMillan 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);[10]

·   Ms McMillan has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Ms McMillan 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);[11] and

·   Ms McMillan 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).[12]

1. 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 Ms McMillan is a fit and proper person to hold a right of entry permit.

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

1. There are no other matters of which I am aware that I consider relevant to the determination of whether Ms McMillan is a fit and proper person to hold an entry permit.

Conclusion

1. Taking into account the permit qualification matters, for the reasons earlier stated I am satisfied that Emily Theresa McMillan is a fit and proper person to hold an entry permit. The application by the TWU for an entry permit to be issued to Ms McMillan is granted.

1. A permit will be separately issued.

DEPUTY PRESIDENT

[1] 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]

[2] [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]

[3] 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

[4] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184; (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])

[5] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15], p 41

[6] Form F42, Declaration by proposed permit holder dated 20 July 2022 and by the TWU dated 25 July 2022

[7] Ibid at (b)

[8] Ibid at (c)

[9] Ibid at (d)

[10] Ibid at (e)

[11] Ibid at (f)

[12] Ibid at (g)

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