United Voice - Victorian Branch

[2014] FWCD 3730

[2014] FWCD 3730

DECISION

Fair Work Act 2009
s.512—Application for a right of entry permit
United Voice
(RE2014/537)
MR ENRIGHT	MELBOURNE, 22 JULY 2014
Background

[1] On 11 February 2014, an application under s. 512 of the Fair Work Act 2009 (the Act) dated 5 February 2014 was lodged in the Fair Work Commission (the Commission) by United Voice (UV) for a permit to enter and inspect premises for the following official of UV:

David Mark Nash: RE2014/537

[2] The application was supported by declarations from Mr Ben Redford, the relevant Committee of Management member, and Mr Nash, the proposed permit holder, dated 5 February and 28 January 2014 respectively. Mr Redford is the Assistant Secretary of the Victorian Branch (the Branch) of UV. Mr Nash is a Union Organiser within the Branch.

[3] On 18 February 2014 the Commission wrote to UV seeking an amended application that detailed the approved new training Mr Nash had completed as well as Mr Nash’s full name consistently applied throughout the application declarations. Furthermore an additional statutory declaration was requested from Mr Nash seeking information detailing the circumstances, dates and reasons behind his site visits as contained in his statutory declaration of 5 February 2014.

[4] I acknowledge receipt on 3 September 2013 of a permit returned to the Commission by Mr Nash in matter RE2010/3557.

[5] On 21 March 2014 the Commission wrote to UV regarding the above application and enquired whether UV wished to proceed or whether they wished to withdraw the application.

[6] On 1 April 2014 an amended application under s. 512 of the Act dated 1 April 2014 was lodged in the Commission by UV. The application was supported by declarations (the

declarations) from Mr Ben Redford and Mr Nash both dated 1 April 2014. The application

was also accompanied by a statutory declaration from Mr Nash dated 1 April 2014 listing more than ninety (90) Victorian sites which had been visited by him in his role as a UV Organiser subsequent to the expiry and or return to the Commission of permit RE2010/3557.

[7] The more than 90 Victorian sites visited by Mr Nash included a range of Federal and

State government as well as non government private entities. Mr Nash described in his
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statutory declaration of 1 April 2014 that he visited the sites for the purpose of holding discussions with employees who, ‘in large part, were engaged by contract security companies as security officers, working at locations such as city buildings, Courts and industrial premises.’ It was clear from Nash’s statutory declaration that the sites at which he exercised entry powers after his permit had expired also included Commonwealth immigration and Victorian State correctional facilities.

[8] As a result of further inquiries conducted, it emerged that Wilson Security, G4S Security, ISS Security, MSS Security and Serco Security were the employers who employed all of the employees at the Victorian sites visited by Mr Nash subsequent to the expiry of permit RE2010/3557.

[9] On 3 April 2014 the Commission wrote to UV seeking additional information via a statutory declaration from Mr Nash regarding the site visits outlined in his statutory declaration of 1 April 2014. Specifically the Commission requested information regarding what notice and permit had Mr Nash submitted in relation to the site visits mentioned in his statutory declaration of 1 April 2014, whether Mr Nash purported to exercise right of entry powers after his permit was returned on 3 September 2013, and enquired why Mr Nash had continued to visit work sites without a valid permit after he completed new approved right of entry training on 11 March 2014.

[10] On 9 April 2014 a statutory declaration from Mr Nash dated 8 April 2014 was lodged with the Commission in response to the Commission’s request of 3 April 2014.

[11] Mr Nash’s further statutory declaration stated that notices pursuant to sections 487 and

518 of the Act were produced for the site visits referred to above, but that Mr Nash had never
been asked to produce a copy of his permit since becoming a permit holder.

[12] The above statutory declaration was accompanied by a covering letter addressed to the Commission by Mr Redford also dated 9 April 2014. The letter indicated that Mr Nash’s application identified apparent flaws in the Branch’s internal processes in relation to issuing right of entry notices. It specifically noted that the Branch proposed to conduct a review of internal practices relating to the preparation and service of right of entry notices and proposed that individual permit holders “sign off’ on right of entry notices rather than the notices being issued as an administrative function from the Finance and Administration Department of UV. It also indicated that Mr Nash would undertake refresher training along with all current and future permit holders from the Branch in which the obligations of a permit holder form a fundamental part of the training. Finally, the letter also stressed that a permit was essential for Mr Nash to undertake his duties as a Union Organiser and requested that this be taken into account when considering the application.

[13] On 17 April 2014 the Commission wrote to UV inviting it to lodge any further submissions by 30 April 2014.

[14] On 30 April 2014 UV requested an extension of time to file submissions by 2 May 2014, which was granted.

[15]      On 2 May 2014 UV lodged its submissions (UV submissions)

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[16] On 22 July 2014 I wrote to Mr Ben Redford in his capacity as Committee of Management member and Assistant Secretary of the Branch. In my correspondence I advised Mr Redford that it would assist my review of the application if he were to provide confirmation that UV agreed to formally write to the security companies mentioned above in order to provide those companies with comprehensive details about the specific dates and relevant sites which had been visited by UV organisers exercising right of entry powers during periods after which the relevant UV organiser’s entry permit had expired.

[17] I anticipate that such formal advice would enable the security companies to understand the circumstances surrounding the formal exercise of entry powers at Federal and State Government as well as non government entities by a UV Organiser whose permit had expired in the context of Mr Nash’s statutory declaration that he was not requested to produce his entry permit at any of those sites.

[18] In my 22 July 2014 correspondence I further requested confirmation that UV would

also provide the relevant security companies advice about the steps subsequently taken by UV
to ensure that such occurrences do not occur in the future.

[19] On 22 July 2014 Mr Redford provided written confirmation that UV agreed to

formally write to the relevant security companies to provide the comprehensive details and
subsequent steps to prevent reoccurrence referred to above.

Legislative framework

[20] Under s.512 of the Act, the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied the official is a “fit and proper person” to hold an entry permit. In deciding this, the Commission must take into account the permit qualification matters set out in s.513(1).

[21]      Section 513(1) of the Act is set out below:

(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;

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(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.”

[22] Sections 512–513 are within Part 3–4 of the Act, entitled ‘Right of Entry’. The objects of Part 3–4 are set out at s.480:

“480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work,

information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business
without undue inconvenience.”

[23] In Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australiai, Delegate Nassios made the following observations

regarding the objects of Part 3–4 of the Act with respect to an application for an entry permit:

“[21] The objects of Part 3-4 are set out in section 480 of the Act. The object of right of
entry provisions is to establish a framework for officials of organisations to enter
premises while balancing competing rights of organisations, employees and
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occupiers/employers. Organisations have the right to represent their members in the workplace, to hold discussions and to investigate suspected contraventions of relevant laws. Balanced against these rights are the rights of occupiers and employers ‘to go about their business without undue inconvenience’. The objects set out in section 480 of the Act emphasise the mutual rights and responsibilities of participants in the system in much the same way as the objects under the Workplace Relations Act 1996. Earlier decisions regarding the granting of right of entry permits under the Workplace Relations Act 1996 have made reference to the ‘important contextual issue’ of the nature of the power that is exercised by permit holders. In Vivienne Daniels v Joe Patti

& Anor, Munro J observed that:

Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility, and avoidance of unnecessary obstruction in the exercise of the powers under Division 11A are not only to be expected, they are a statutory condition of the powers being retained.

The observations of Munro J apply equally to the granting of right of entry permits under the legislative regime set out in the Fair Work Act 2009.”ii (endnotes omitted)

[24] Although I am not bound by the above views I find they are a useful context for considering an application for an entry permit.

Submissions

[25]      As noted above UV filed written submissions in this matter.

UV submissions

[26] In respect to Mr Nash’s more than 90 site visits between 10 August 2013 and 1 April

2014 where Mr Nash visited premises having represented he was a permit holder under the
Act when he was not, UV argues that this representation was inadvertent and not deliberate.

[27] None of the other permit qualification matters suggest that Mr Nash is anything other

than a fit and proper person. The weight of the matters the Commission is required to consider
under section 513 of the Act suggests in favour of a finding that he is a fit and proper person.

[28] There have been no reports of disruption or damage arising from Mr Nash’s conduct in relation to the visits he made.

[29] Mr Nash’s conduct occurred primarily because of a failure in the internal procedures of the organisation, where an automated administrative process within UV caused notices containing the representation that Mr Nash held a current permit to be issued on his behalf. The conduct was not intentional or knowingly through his negligence.

[30] Mr Nash has acknowledged his responsibility and his accountability for that conduct.

Furthermore the branch has undertaken to review its internal procedures which led to the
inadvertent representation of Mr Nash as a permit holder.
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[31] Mr Nash has held a permit under the Act for more than three years and during this

time there have been no incidents of any kind to suggest that he is anything other than a fit
and proper person to hold a permit under the Act.

[32] UV concludes that whilst the above matters are relevant to the considerations under section 513 of the Act, they do not render Mr Nash as an unfit or improper person to hold a permit under the Act. Furthermore, UV submits that it is not appropriate to attach a condition to the issue of the permit sought by the applicant.

Permit Qualification Matters

[33] Section 512 of the Act provides that, upon application by an organisation, the Commission may issue an entry permit to an official of that organisation if it is satisfied that the official is a “fit and proper person to hold the entry permit”. Thus, the task of the Commission in the present matter is to consider and determine whether Mr Nash is a “fit and proper person” not in a universal sense entirely divorced from any context but specifically whether he is a “fit and proper person” to hold an entry permit. As observed by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380:

“The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides an indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”

[34] Therefore, the determination of whether a particular official is a “fit and proper person” to hold an entry permit for the purposes of section 512 of the Act is required to be made by having regard to the nature of the statutory right of entry powers potentially provided to the official pursuant to Part 3-4 of the Act, the activities that the official will be engaged in when exercising such powers and the ends to be served by such activities. As the Full Bench of the Commission in The Maritime Union of Australia [2014] FWCFB 1973 (The Maritime

Union of Australia [2014]) observed:

“The question of whether an officer is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. These are all to be found in Part 3-4 of the Act”.iii

[35] Section 513(1) of the Act provides that, in order to make the primary determination required to be made pursuant to s. 512 of the Act, the Commission must take into account the “permit qualification matters” listed at paragraphs (a) to (g) therein. Although several of those matters do not directly relate to statutory right of entry powers, the Commission is bound to

[2014] FWCD 3730

take them into account and apply them in a manner that assists the Commission in
determining whether a particular official is a “fit and proper person” to hold an entry permit.

[36] I will consider each of the “permit qualification matters” separately below as they pertain to the current matter before me.

Training about rights and responsibilities

[37] Section 513(1)(a) of the Act requires me to take into account whether Mr Nash has received appropriate training about the rights and responsibilities of a permit holder. The declarations disclose that Mr Nash undertook such training on 11 March 2014. The content of the training material was approved by, the then, Fair Work Australia, on 15 October 2009. This matter will be considered in further detail below.

Conviction/s against an industrial law

[38] Section 513(1)(c) of the Act requires me to take into account whether Mr Nash has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. The declarations do not disclose any such convictions against Mr Nash. There is no evidence before me that suggests otherwise.

Conviction/s involving fraud, dishonesty or intentional use of violence

[39] Section 513(1)(c) of the Act requires me to take into account whether Mr Nash has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. The declarations do not disclose any such convictions against Mr Nash. There is no evidence before me that suggests otherwise.

Order/s to pay a penalty under an industrial law in relation to action taken by the official

[40] Section 513(1)(d) of the Act requires me to take into account whether Mr Nash, or any other person, has ever been ordered to pay a penalty under the Act or any other industrial law, in relation to action taken by Mr Nash. The declarations do not disclose any such penalty imposed in relation to action taken by Mr Nash. There is no other evidence before me that suggests otherwise.

Permit/s revoked, suspended or made subject to conditions under Commonwealth law

[41] Section 513(1)(e) of the Act requires me to take into account whether a permit issued to Mr Nash under Part 3–4 of the Act, or under a similar law of the Commonwealth (no matter when in force), has been revoked, suspended or made subject to conditions. The declarations do not disclose that any such permits issued to Mr Nash having ever been revoked, suspended or made subject to conditions. There is no evidence before me that suggests otherwise.

Right of entry revoked, suspended or made subject to conditions or a disqualification imposed under State or Territory industrial law or State or Territory OHS law

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[42] Section 513(1)(f) of the Act requires me to take into account whether a court, or other person or body, under a State or Territory industrial law or State or Territory occupational health and safety (OHS) law has cancelled, suspended or imposed conditions on a right of entry for industrial or OHS purposes that Mr Nash had under that law or disqualified Mr Nash from exercising, or applying for, a right of entry for industrial or OHS purposes under that law. The declarations do not disclose any cancellation, suspension or imposition of conditions on a right of entry Mr Nash has held for industrial or OHS purposes by any court, or other person or body, under a State or Territory industrial law or an OHS law. Further, the declarations do not disclose that Mr Nash has been disqualified by any court, or other person or body, under a State or Territory industrial law or an OHS law, from exercising, or applying for, a right of entry for industrial or OHS purposes. There is no evidence before me that suggests otherwise.

Any other matter the Commission considers relevant

[43] Section 513(1)(g) of the Act provides the Fair Work Commission with a broad discretion to take into account any other matters it considers relevant. This discretion is limited to a consideration of matters that pertain to a proposed permit holder’s status as a “fit and proper person” to hold an entry permit. The proper construction should be determined by examining the provision in the context of the Act as a whole and the specific considerations set out in subsections 513(1)(a)-(f) of the Act in particular in the sense that such matters must fall within the purview of relevance delineated by the subject, scope and purpose of the Act, particularly Part 3-4 of the Act.iv Relevant considerations in this regard include whether a

particular matter has an industrial or OHS “flavour” or context, the extent to which it raises issues analogous to the considerations set out in subsections 513(1)(a)-(f) of the Act and its pertinence to the exercise of the public right associated with the exercise of statutory right of entry powers pursuant to Part 3-4 of the Act.

[44] As noted above, the submissions of UV state that numerous site visits were conducted by Mr Nash where he represented to be a permit holder under the Act when in fact he was not.

[45]      This matter will be considered in further detail below.

[46]      In this regard, I have also taken into consideration the objects of Part 3-4 of the Act.

Training about rights and responsibilities

[47] As noted above, the most recent training undertaken by Mr Nash regarding the rights and responsibilities of permit holder occurred on 11 March 2014. That training was delivered in-house by the branch of UV and has previously been approved by the then, Fair Work Australia, for the purposes of satisfying the permit qualification matters set out in subsection 513(1)(a) of the Act.

[48] I accept that Mr Nash has undertaken training for the purposes of subsection 513(1)(a) of the Act. However I find it disturbing that Mr Nash continued to misrepresent himself as a permit holder when he in fact he was not, even after he had completed approved right of entry training in March 2014. Indeed the application states that Mr Nash “has received appropriate

training about the rights and responsibilities of a permit holder” yet there were numerous site

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visits conducted by Mr Nash without a valid permit after he had completed his training on 11
March 2014.

[49] Notwithstanding UV’s submissions that the continued site visits were not deliberate, it is not unreasonable to question the efficacy of the in-house training in this instance.

[50] Subsection 513(1)(a) of the Act refers to “appropriate training” specifically regarding the “rights and responsibilities of a permit holder”. I am of the view that should I decide to issue Mr Nash with a right of entry permit, that he undertake new appropriate training prior to the issue of a new permit. I note that the training must be of a type that has been lodged and approved by the Commission.

Other relevant matters

[51] Subsections 481(1) and 483A(1) and section 484 of the Act permit a permit holder to

enter premises for specified purposes, it is apparent that Mr Nash has entered premises while
not being a permit holder.

[52] On the materials available to me, I am satisfied that on each of the occasions on which Mr Nash purported to exercise entry powers after his permit had expired, such entry was agreed to by the employer without the employer having requested to view a permit.

[53] I have taken into account that Mr Nash’s permit application has identified flaws in the Branch’s internal processes in relation to communication between the administrative area and permit holders who have rights and obligations under the Act when issuing right of entry notices. I have also taken into account the fact the Branch has undertaken to conduct a review of its internal practices relating to the preparation and service of right of entry notices.

[54] I also note the Branch proposes that individual permit holders “sign off’ on right of entry notices rather than the notices being issued as an administrative function from the Finance and Administration Department of the Branch. Furthermore, Mr Redford has indicated that all current and future permit holders, including Mr Nash, will undergo refresher training.

Conclusion

[55] I have taken into account and I accept that Mr Nash was not aware that his permit had expired on 23 August 2013. I accept this because he has attested to that fact in a statutory declaration and there is no evidence to the contrary. However, logic compels me to conclude that he should have been alerted to the imminent expiration of his permit, at the very latest, when he signed an application for a new permit on 28 January 2014. In the circumstances of this case, there can be no other reason for Mr Nash to have signed an application for a new permit but for his permit either approaching expiration or it having already expired.

[56] Aggravating factors include that Mr Nash continued to exercise entry powers by attending multiple work sites after permit RE2010/3557 was actually surrendered to the Commission on 3 September 2013 and even after he participated in training about the rights and responsibilities of permit holders on 11 March 2014 (while his permit had expired).

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[57] The circumstances directly above are, in my view, further exacerbated firstly by the demonstrably flawed administrative practices of UV which enabled the continued issuance of entry notices to employers for an Organiser whose permit had expired and secondly by Mr Nash’s account about employers ‘never’ having requested him to produce his entry permit either while it was valid or subsequent to its expiration.

[58] I have balanced these concerns and I have had particular regard to the lack of any adverse findings made against Mr Nash regarding the permit qualification matters set out in paragraphs (a)-(g) of subsection 513(1) of the Act and a consideration of his role to the UV membership as an Union Organiser of that organisation.

[59] I note that the “permit qualification matters” set out in paragraphs (a) to (f) of subsection 513(1) of the Act pertain to matters specifically in relation to an official and the inquiry required to be made in determining whether or not to issue an entry permit to a particular official is directed to the status and attributes of that official. Given this, I do not make any adverse finding against Mr Nash in relation to the demonstrably flawed UV administrative practices which contributed to the circumstance of this matter.

[60] I have taken into account the undertakings of UV both to review its internal practices relating to the preparation and service of right of entry notices and to formally notify the relevant employers referred to within this decision with sufficient details and clarity to enable those employers to achieve a comprehensive understanding of the circumstances.

[61] I have carefully considered all of the available circumstances of this matter and have had particular regard to the permit qualification matters for the purposes of s.512 of the Act.

[62] I am satisfied, on balance, that Mr Nash is a fit and proper person, taking into account

the permit qualification and each of the relevant matters referred to in this application.
Accordingly, I will issue a permit.

[63] However, for the reason given above, I require Mr Nash to first undertake new appropriate training prior to the issue of a new permit.

[64] Once the requirement for new and appropriate training has been met, and presuming

no other matters that are relevant to my consideration of the permit qualification matters arise
in the meantime, I will grant a right of entry permit to Mr Nash.

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DELEGATE OF THE FAIR WORK COMMISSION

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i [2011] FWAD 3518.

ii Ibid at [21].

iii The Maritime Union of Australia [2014] FWCFB 1973 at [25].

iv Santos Ltd v Saunders (1988) 49 SASR 556.