[2024] FWC 3409

Fair Work Act 2009

s.512 - Renewal by existing permit holder for same organisation

Application by Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division for an entry permit for Shane Reside

Application for right of entry permit for Shane Andrew Reside - Whether fit and proper person to hold an entry permit under the Fair Work Act 2009 (Cth) - Consideration of the "permit qualification matters" in s 513(1) - Mr Reside found guilty of offence of "enter/remain on major facility" but no conviction recorded - Commission satisfied Mr Reside is fit and proper person to hold a right of entry permit - Permit issued.

• [1] On 24 September 2024, an application was made under s 512 of the Fair Work Act 2009 (Cth) (the Act) to renew a right of entry permit held by Shane Andrew Reside by Warren Smith, the Deputy National Secretary of the Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division (the MUA). Mr Reside is a branch organiser employed by the MUA.

• [2] Mr Reside has previously been issued with entry permits on application by the MUA on 15 November 2018 and 15 November 2021. His most recent entry permit RE2021/1163 expired on 15 November 2024. Mr Reside also currently holds entry permit RE2021/1418 from the United Workers' Union which was issued on 25 January 2022 and remains in force.

• [3] The application indicated that there were no changed circumstances for Mr Reside in relation to any of the permit qualification matters listed in s 513(1) of the Act. The application did disclose, however, one additional matter that it was said may be relevant to whether Mr Reside is a fit and proper person to hold a permit. The application indicated:

On 29 August 2024 Mr Reside was found guilty of 'enter/remain on major facility' in the state of NSW. No conviction was recorded.

• [4] The application filed by the MUA contained declarations by Mr Smith and Mr Reside as to matters relevant to the application. The MUA also filed submissions in support of the application together with a further statutory declaration made by Mr Reside dated 15 November 2024 addressing the circumstances of the offence disclosed in the application.

• [5] Section 512 of the Act provides that, on application by an organisation, the Commission may issue a permit to an official of the organisation if satisfied that the official is a fit and proper person to hold the entry permit. Section 513(1) provides that, in deciding whether the official is a fit and proper person, the Commission must take into account what are described as the "permit qualification matters". The relevant part of that section is as follows:

(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:

(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.

• [6] The Commission may issue a permit to Mr Reside under s 512 only if it is satisfied Mr Reside is a fit and proper person to hold an entry permit, and to exercise the powers, functions and responsibilities attached to the holding of a permit.[1] The phrase "fit and proper person" in s 512 is confined to an inquiry as to fitness and propriety for the purposes of holding an entry permit.[2] The focus of the Commission's inquiry is not whether the proposed permit holder is a fit and proper person in some abstract sense. Having said that, the assessment of whether an official is a fit and proper person to hold an entry permit is not limited to consideration of contraventions, offences or penalties imposed in respect of the manner in which the official has exercised the rights conferred by an entry permit. Conduct which casts light on the general integrity, conduct or personal characteristics of the official may be relevant to whether he or she is a fit and proper person to hold an entry permit.[3]

• [7] Each of the permit qualification matters listed in s 513(1) must be taken into account. Those matters must be given "proper, genuine and realistic consideration and appropriate weight" and treated as matters of significance in the decision-making process.[4] However, there is no statutory prescription of the weight to be attached to each matter and it is for the decision maker to determine the appropriate weight to be given to each in assessing whether the official is a fit and proper person to hold an entry permit.[5]

• [8] Section 513(1)(g) requires the Commission to take into account any other matter that it considers relevant. A matter will be relevant if it could rationally affect the assessment of whether the official is a fit and proper person to hold an entry permit. The relevance referred to in s 513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit. For a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.[6]

• [9] I turn to consider the application to renew Mr Reside's right of entry permit.

• [10] As has been observed, in assessing whether Mr Reside is a fit and proper person to hold an entry permit it is necessary for the Commission to take into account the permit qualification matters in s 513(1).

Permit qualification matters - 513(1)(a), (b), (d), (e) and (f)

• [11] With respect to the matter referred to s 513(1)(a), the declarations made by Mr Smith and Mr Reside state that Mr Reside relies on evidence previously submitted to the Commission of his entry permit training that he has completed over the last 6 years. A certificate was submitted indicating that Mr Reside completed training entitled Federal Right of Entry Online provided by the Australian Trade Union Institute Online on 12 October 2021. The records of the Commission indicate he undertook similar training in 2018. I am satisfied that Mr Reside has received appropriate training about the rights and responsibilities of a permit holder. That matter weighs in favour of a finding that Mr Reside is a fit and proper person to hold an entry permit and I take that matter into account.

• [12] With respect to the matters referred to in s 513(1)(b), (d), (e) and (f), the declarations filed in the present matter state that, since the declarations made in the application for Mr Reside's existing entry permit, Mr Reside has not been convicted of an offence against an industrial law, has not been ordered to pay a penalty under the Fair Work Act 2009 (Cth) or any other industrial law and has not had any entry permit or work health and safety permit suspended or cancelled or had conditions imposed on the permit. Mr Reside made a declaration that none of those circumstances applied with respect to him in the application for his existing entry permit. I am satisfied that none of the circumstances referred to in s 513(1)(b), (d), (e) and (f) apply to Mr Reside. This is also a matter that weighs in favour of a finding that Mr Reside is a fit and proper person to hold an entry permit and I take that matter into account.

• [13] Section 513(1)(c) requires the Commission to take into account whether the official seeking to be issued with an entry permit has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry to premises, fraud or dishonesty or the intentional use of violence against another person or intentional damage or destruction of property.

• [14] The requirement imposed by s 513(1)(c) to take into account convictions for the identified types of offences presumably means that Parliament regarded convictions for those offences to be relevant to whether an official is a fit and proper person to hold an entry permit. Any conviction of a type referred to in s 513(1)(c) must be taken into account. Of course, the weight to be attached to a particular conviction as part of the overall assessment of whether the official is a fit and proper person to hold an entry permit will depend on, among other things, the nature and circumstances of the offence, any mitigating circumstances and whether, and the extent to which, the conviction reflects on the character of the official.

• [15] The application in this matter disclosed that Mr Reside had been found guilty of the offence of "enter/remain on major facility" on 29 August 2024, but that no conviction had been recorded. For the purpose of considering whether, and in what manner, the Commission must take this incident into account it is necessary to consider three questions: (1) whether the offence of "enter/remain on major facility" is an offence of a type referred to in s 513(1)(c); (2) whether the fact that no conviction was recorded means that the offence is not required to be taken into account by s 513(1)(c); and (3) if the incident is not required to be taken into account by s 513(1)(c), whether the fact of the offence is nonetheless a matter that is relevant for the purposes of s 513(1)(g).

• [16] I will consider those three questions in turn. As to the first question, the offence with which Mr Reside was charged is that created by s 214A of the Crimes Act 1900 (NSW) which provides:

214A Damage or disruption to major facility

(1) A person must not enter, remain on or near, climb, jump from or otherwise trespass on or block entry to any part of a major facility if that conduct -

(b) seriously disrupts or obstructs persons attempting to use the major facility, or

(c) causes the major facility, or part of the major facility, to be closed, or

(d) causes persons attempting to use the major facility to be redirected.

Maximum penalty - 200 penalty units or imprisonment for 2 years, or both.

major facility means the following, whether publicly or privately owned -

(a) a railway station or other public transport facility prescribed by the regulations,

(b) a private port within the meaning of the Ports and Maritime Administration Act 1995 or another port prescribed by the regulations,

(c) an infrastructure facility, including a facility providing water, sewerage, energy, manufacturing, distribution or other services to the public, prescribed by the regulations.

• [17] The submissions filed by the MUA described the offence of enter/remain on major facility as "one of the State of New South Wales' controversial anti-protest laws". Whether the laws are controversial is not a matter upon which it is appropriate for me to comment. I do note, however, that s 214A(1)(c) (in part) and s 214A(1)(d) were declared invalid by the Supreme Court of New South Wales on grounds those sections impermissibly burden the implied freedom of political communication derived from the Commonwealth Constitution.[7]

• [18] The MUA asserts that the offence to which Mr Reside plead guilty to does not fall within the scope of s 513(1)(c). The written submissions do not elaborate on or explain the assertion. It appears to me that an offence under s 214A(1) of the Crimes Act 1900 (NSW) may or may not be an offence involving "entry onto premises" for the purposes of s 513(1)(c)(i). If the offence was constituted by no more than remaining "near" a major facility, or blocking entry to a major facility, that conduct would not be an offence involving "entry onto premises". If the conduct constituting the offence involved a person entering, climbing, jumping from or otherwise trespassing on a major facility, it is likely to be an offence involving "entry onto premises" for the purposes of s 513(1)(c).

• [19] Mr Reside's statutory declaration described the circumstances of the offence to which he plead guilty as follows:

I currently work as the Sydney Branch Organiser for the Maritime Union of Australia - a position I have held since 2018. The Maritime Union of Australia Sydney Branch pledged to support the Palestinian Community in their peaceful protest on 24 March 2024 against an Israeli shipping line to demand stronger Australian government sanctions in response to the conflict in Gaza.

I, along with several other MUA Officials and Delegates, attended the rally at Port Botany in Sydney's east.

Hundreds of protesters, including federal Greens senator, Mehreen Faruqi, took part in what I observed to be a peaceful community assembly.

Despite the peaceful nature of the rally, Police responded by prohibiting attendees from continuing the event and began arresting attendees, including me and four other MUA members and Officials. I understand that police arrested 19 attendees in total.

I did not resist arrest and was not rude or insulting to the arresting police officers.

• [20] The description provided by Mr Reside, which I accept, indicates that the event involved a rally and does not suggest that it involved any entry onto premises. I am satisfied that the offence to which Mr Reside plead guilty was not an offence involving entry onto premises for the purposes of s 513(1)(c). Accordingly, it is not a matter that I am required to take into account in assessing whether Mr Reside is a fit and proper person to hold an entry permit.

• [21] As to the second question, Mr Reside's statutory declaration states as follows:

On 29 August 2024 I pled guilty to the offence, "Enter/remain on major facility". The presiding magistrate issued a non-conviction order, and subjected me to a Good Behaviour Bond.

• [22] I understand the reference to the magistrate having issued a "non-conviction order" and imposed a good behaviour bond to be a reference to the magistrate having not proceeded to a conviction and imposing a conditional release order under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 10(1) of that Act provides:

10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders -

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

• [23] Notably, s 10(4) provides that an order under that section is taken to have the same effect as a conviction for certain specified purposes. Section 10(4) provides:

(4) An order under this section has the same effect as a conviction -

(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and

(b) for the purpose of enabling a court to give directions for compensation under the Victims Rights and Support Act 2013, Part 6, and

(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

• [24] Section 513(1)(c) is enlivened only if the official has been convicted of a relevant offence. Section 10(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) expressly provides for an order to be made "without proceeding to a conviction". The effect of an order under s 10(1) is that, although the person is guilty of an offence, he or she is not convicted. One consequence is that the offence, if otherwise relevant, is not required to be taken into account in assessing whether the person is a fit and proper person to hold an entry permit for the purposes of s 513(1)(c). For that reason also, I am not required to take into account the offence to which Mr Reside plead guilty by s 513(1)(c).

• [25] The third question then is whether, even though s 513(1)(c) does not require that I take the offence into account, I should have regard to the incident under s 513(1)(g) as a matter that I otherwise consider to be relevant. The MUA submits that the guilty plea is not a "relevant" matter for the purposes of s 513(1)(g) because s 513(1)(c) lists the categories of offences that an applicant must disclose when applying for a permit. It submits that since the offence to which Mr Reside plead guilty is not one of those offences, the Latin legal maxim, inclusio unius (est) exclusio alterius, suggests that Parliament intended that applicants need not disclose offences not of the kind listed in s 513(1)(c).

• [26] I take this to be a submission that offences which are not of a type specifically identified in s 513(1)(c) could never be relevant to whether an official is a fit and proper person to hold an entry permit for the purposes of s 513(1)(g). I do not accept that submission. Although Parliament has identified certain offences in s 513(1)(c) conviction of which must be taken into account, the section does not confine the matters the Commission might otherwise consider to be relevant. Section 513(1) identifies those matters which "must" be taken into account. It does not provide that other matters may not be taken into account.[8] Section 513(1)(g) expressly requires the Commission to take into account "any other matters" it considers relevant. That subsection should not be read down by reference to the preceding provisions within s 513(1). It is not difficult to envisage other offences conviction for which might rationally affect the assessment of whether an official is a fit and proper person to hold an entry permit. It is not uncommon for the Commission to take into account other convictions under s 513(1)(g).[9]

• [27] The offence to which Mr Reside plead guilty is, in my opinion, capable of rationally affecting the assessment of whether he is a fit and proper person to hold an entry permit, and, as a result, I am required to take it into account for the purposes of s 513(1)(g). I consider the fact of the offence to be relevant. However, having considered the nature and circumstances of the particular offence and the explanation provided by Mr Reside, I am satisfied that the incident does not weigh against a finding that Mr Reside is a fit and proper person to hold an entry permit, much less dictate such a conclusion.

• [28] The conduct giving rise to the offence took place at a protest rally concerning the conflict in Gaza. Although it appears the MUA was involved in the organisation of the rally, the conduct did not directly concern Mr Reside's work as a branch organiser or the use of his right of entry permit. Mr Reside indicates that he did not resist arrest and was not rude or insulting to the arresting police officers. There is no suggestion that Mr Reside's conduct involved any violence or damage to property.

• [29] The MUA submits that Mr Reside's involvement in the rally demonstrates personal characteristics of empathy, compassion, and selflessness because he was protesting atrocities being inflicted on civilians in Gaza. That submission is based upon assertions as to the merits of the cause sought by be advanced by the rally. It is not appropriate that I express any view as to the merits or otherwise of the political message sought to be advanced at the rally. It is sufficient to indicate that I accept that the rally concerned an issue of public importance in relation to which many members of the community have sincere and strongly held views. I accept that Mr Reside shares those views and that he attended the rally for altruistic reasons.

• [30] Mr Reside further states in his statutory declaration that:

I strongly disagree with the NSW anti-protest laws. I believe they are undemocratic and undermine what I consider to be a basic civil right - Freedom of Assembly. Nonetheless, I accept that those laws remain in force, and I am committed to obeying them in the future.

• [31] In circumstances in which Mr Reside's attendance at the rally did not directly concern his work as a union official, his attendance arose from altruistic concern for the humanitarian situation in another part of the world, no conviction was recorded arising from his conduct and Mr Reside has expressed his commitment to obeying the law in the future, I do not consider that the offence to which he plead guilty suggests that Mr Reside is not a fit and proper person to hold an entry permit. I have taken the incident into account, but I am satisfied it is a neutral consideration in the overall assessment as to whether Mr Reside is a fit and proper person to hold an entry permit.

• [32] There are no other matters disclosed in the material before me that I consider relevant to whether Mr Reside is a fit and proper perform to hold an entry permit.

• [33] Taking all the permit qualification matters into account, I am satisfied that Mr Reside is a fit and proper person to hold an entry permit. The application by the MUA for an entry permit to be issued to Mr Reside is granted.

[1] Re Maritime Union of Australia [2014] FWCFB 1973; (2014) 241 IR 216 at [23].

[2] Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; (2015) 230 FCR 15 at [18] (North, Flick and Bromberg JJ); Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522 at [32].

[3] Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; (2015) 230 FCR 15 at [19]- [25] (North, Flick and Bromberg JJ).

[4] Edwards v Guidice [1999] FCA 1836; (1999) 94 FCR 561 at [5] (Moore J); Re 4 Yearly Review of Modern Awards - Penalty Rates [2017] FWCFB 1001; (2017) 265 IR 1 at [115].

[5] Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153 at 187-188 (Hill J); Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, [2015] FWC 1522 at [32].

[6] Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, [2015] FWC 1522 at [32].

[7] Kvelde v State of New South Wales [2023] NSWSC 1560.

[8] Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; (2015) 230 FCR 15 at [22] (North, Flick and Bromberg JJ).

[9] See, for example, Re Construction, Forestry and Maritime Employees Union [2024] FWC 1929 at [16]- [19].

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