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

Application by the Construction, Forestry and Maritime Employees Union for an entry permit for Joshua Thompson and Dylan Howard

Application for right of entry permit for Joshua Thompson and Dylan Howard - Whether fit and proper persons to hold entry permits under the Fair Work Act 2009 (Cth) - Consideration of the "permit qualification matters" in s 513(1) - Mr Thompson and Mr Howard are respondents to ongoing proceedings before the Federal Court of Australia relating to alleged contraventions of ss 499 and 500 of the Act - Relevance of contested allegations in ongoing proceedings - Allegations potentially relevant to whether the Commission can be satisfied an individual is a fit and proper person to hold a permit - Commission satisfied Mr Thompson and Mr Howard are fit and proper persons - Permits issued.

• [1] On 31 January 2025, the Construction, Forestry and Maritime Employees Union - Construction and General Division, Queensland/Northern Territory Divisional Branch (the CFMEU) filed applications for the Commission to issue entry permits to Joshua Thompson and Dylan Howard under s 512 of the Fair Work Act 2009 (Cth) (the Act). The CFMEU separately applied for the existing entry permits held by Mr Thompson and Mr Howard to be extended under s 516(2) of the Act. On 21 February 2025, I extended the expiry date of the existing entry permits held by Mr Thompson and Mr Howard until these applications were determined or 2 May 2025, whichever was earlier.[1]

• [2] Mr Thompson is employed by the CFMEU as an organiser and Mr Howard is employed in the position of Civil and Regional Construction Co-Ordinator. The applications for new permits disclose that Mr Thompson and Mr Howard are named as respondents in ongoing proceedings before the Federal Court of Australia in Matter No. QUD245/2024 and were respondents to proceedings before the Queensland Industrial Relations Commission in Matter No. WHS2024/113 and WHS2024/114 arising from the same set of events.

• [3] Directions were issued by my chambers on 21 February 2025 directing the CFMEU to file material in support of the applications. On 21 February 2025, my chambers also wrote to the Fair Work Ombudsman providing copies of the applications made by the CFMEU with respect to entry permits for Mr Thompson and Mr Howard and inviting the Ombudsman to indicate whether it wished to be heard in relation to the applications. The applications were provided to the Ombudsman given the nature of the ongoing proceedings before the Federal Court.

• [4] On 25 February 2025, the CFMEU filed submissions in support of the applications in addition to providing the Commission with the pleadings in the ongoing Federal Court proceedings, and decisions of the Queensland Industrial Relations Commission concerning proceedings in which Mr Thompson and Mr Howard were named respondents. Both matters in the Queensland Industrial Relations Commission involved applications by a construction company which were dismissed. The same company, BMD Constructions Pty Ltd, is the applicant in the ongoing Federal Court proceedings.

• [5] On 11 March 2025, the CFMEU provided to the Commission correspondence between the Fair Work Ombudsman and the CFMEU in relation to Mr Howard's application for a right of entry permit addressed to the CFMEU Administrator, Mark Irving KC. The correspondence disclosed that the Ombudsman was investigating the events subject of the proceedings in QUD245/2024 including alleged "menacing behaviour" on the part of Mr Howard. The Ombudsman encouraged Mr Irving to review certain video footage said to concern the conduct involving Mr Howard occurring on 23 April 2024. The Ombudsman asserted that the footage showed Mr Howard "shirtfronting" a site manager and that Mr Howard can be heard saying to a site manager: "[...] put a gun in your mouth and see where it goes". The Ombudsman indicated that it considered that the footage raised concerns as to whether Mr Howard remains a fit and proper person to hold a right of entry permit and invited the Administrator to consider withdrawing Mr Howard's application for a new entry permit.

• [6] Mr Irving responded to the correspondence by letter dated 7 March 2025. In the letter, Mr Irving indicated that he had received and reviewed the video footage and provided a detailed refutation of the concerns raised by the Ombudsman. In particular, Mr Irving asserted that no "shirtfronting" of the site manager (Mr Lovewell) had occurred and that:

It is clear Mr Howard was not walking into Mr Lovewell. Mr Howard was obviously trying to walk around Mr Lovewell, and the latter was shifting his position to block Mr Howard. No other reasonable conclusion is open on the events recorded.

Only the most jaundiced mind would conclude that Mr Lovewell at 11.48 was engaging in anything other than exaggerated clowning. He was not frightened - he was play acting for the cameras. Just like he was play acting when crying 'stop walking into me' whilst repositioning himself in front of where Mr Howard was walking.

• [7] Mr Irving further asserts that Mr Howard had said "keep running your mouth and we'll see where it goes" and that he did not say "I'll put a gun in your mouth and see where it goes" as alleged in the Ombudsman's correspondence.

• [8] Mr Irving concluded his letter by saying:

There are serious issues to address in this industry. The Administration will play its role in confronting them. Getting on with the business of dealing with the weighty issues means distinguishing imagined childish games from matters of substance.

I have reviewed the footage as you suggested. That footage does not support the withdrawal of the application.

• [9] A short hearing was then conducted in relation to the applications of 14 March 2025 at which the CFMEU was represented by Elliott Dalgleish, Industrial Officer. The Ombudsman did not appear at the hearing.

• [10] On 17 March 2025, and after further inquiry by my chambers, the Ombudsman confirmed by email that it did not intend to participate in the proceedings and had resolved its concerns in relation to Mr Howard's application. The email from Janine Dennis, Executive Director, Legal Enforcement Branch 2, said the following:

I confirm that the Fair Work Ombudsman (FWO) does not intend to participate in the proceedings or otherwise provide further information to the Fair Work Commission in relation to these applications. The FWO did not respond to the Fair Work Commission's earlier correspondence as we understood that the email only required a response if the FWO wished to be heard. We trust this clarifies the issue and apologise for any confusion this may have caused.

For completeness, I confirm that the FWO had communications with the CFMEU in relation to the application for a right of entry permit for Mr Howard, and the FWO has been able to resolve its concerns, noting that the application already discloses matters concerning Mr Howard's industrial law compliance.

• [11] The Ombudsman did not otherwise explain its position. The correspondence received by my chambers, particularly the reference to the Ombudsman having resolved its concerns, can only sensibly be understood as meaning that the Ombudsman was content with and accepted the response provided by Mr Irving. I will proceed on the basis that the Ombudsman, at least as presently informed, no longer has concerns as to whether Mr Howard is a fit and proper person to hold an entry permit.

• [12] Section 512 of the Act provides that the Commission may issue an entry permit to an official of an organisation if satisfied that the official is a fit and proper person to hold a permit. Section 513(1) provides that, in deciding whether the official is a fit and proper person, the Commission must take into account 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.

• [13] The Commission may issue a permit under s 512 only if it is satisfied that Mr Thompson and Mr Howard are fit and proper persons to hold an entry permit, and to exercise the powers, functions and responsibilities attached to the holding of a permit.[2] The phrase "fit and proper person" in s 512 is directed at an inquiry as to fitness and propriety for the purposes of holding an entry permit.[3] The focus of the inquiry is not whether the proposed permit holder is a fit and proper person in some abstract sense. Although any conduct that 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,[4] conduct in relation to the obligations of a permit holder or under industrial laws generally are likely to be most relevant.

• [14] 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.[5] 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.[6]

• [15] The applications with respect to Mr Thompson and Mr Howard and the attached declarations indicate that they have received appropriate training in accordance with s 513(1)(a) of the Act. Both applications annexed certificates awarded to both individuals certifying that they have completed the 'Federal Right of Entry under the Fair Work Act 2009' course. I am satisfied that Mr Thompson and Mr Howard have received appropriate training about the rights and responsibilities of a permit holder. This weighs in favour of finding that Mr Thompson and Mr Howard are fit and proper persons to hold entry permits.

• [16] In relation to the permit qualification matters in s 513(1)(b), (c) and (d), the declarations filed with the applications declare, and I am satisfied, that neither Mr Thompson or Mr Howard has ever been convicted of an offence against an industrial law for the purposes of subsection (b) or of a type referred to in subsection (c) and neither they nor any other person has been ordered to pay a penalty under the Act or any other industrial law in relation to actions taken by Mr Thompson or Mr Howard for the purposes of subsection (d). The declarations also state, and I am satisfied, that neither Mr Thompson or Mr Howard have had an entry permit revoked or suspended or made subject to conditions or been disqualified from exercising or applying for a right of entry for the purposes of s 513(1)(e) and (f). These are matters which weigh in favour of reaching the requisite satisfaction that Mr Thompson and Mr Howard are fit and proper persons to hold right of entry permits.

• [17] Section 513(1)(g) requires that the Commission 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 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.[7]

• [18] Both Mr Thompson and Mr Howard's applications disclose that they have been named as respondents in ongoing proceedings before the Federal Court in Matter No. QUD245/2024. The proceedings are brought by a company known as BMD Constructions Pty Ltd and allege various contraventions of ss 499 and 500 of the Act as well as contraventions of s 45D of the Competition and Consumer Act 2010 (Cth) and the torts of interference with contractual relations and public nuisance arising from the alleged conduct of various persons, including Mr Thompson and Mr Howard.

• [19] In summary, the allegations concerning Mr Howard are that, on at least two occasions, he attended the site of a construction project and acted in a manner that contravened s 499 of the Act by failing to comply with a reasonable request by the occupier to observe the visitor entry requirements and entering the site without complying with those requirements. It is further alleged that, on those occasions, Mr Howard acted in an improper manner in contravention of s 500 of the Act, among other things, by pushing past a manager, using abusive language and throwing a document at the manager. Mr Howard is also alleged to have participated in a blockade of the site. Mr Thompson is alleged to have contravened ss 499 and 500 of the Act on one occasion by refusing a request to comply with the visitor entry requirements, accessing the site through a security fence and accessing the site without complying with the visitor entry requirements or reporting to the site office.

• [20] The CFMEU submits that contested allegations raised in separate proceedings are not relevant to the assessment that I am required to undertake as to whether Mr Thompson and Mr Howard are fit and proper persons to hold entry permits. In a number of decisions, members of the Commission have expressed the view that it was not appropriate to take into account contested allegations raised in other proceedings which were yet to be determined in assessing whether an official is a fit and proper person to hold a permit.[8] In some instances, the member of the Commission simply said that they did not propose to take into account the existence of proceedings in which allegations were made against the relevant union official in the particular circumstances of the case before them. Other decisions state an approach in somewhat more general terms.

• [21] The CFMEU, for example, relied on the decision of Gostencnik DP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch - Peter Ong [2015] FWC 4450 in which the Deputy President said:[9]

[48] The Director submitted the failure by the CEPU and by Mr Ong to disclose the proceeding in Lend Lease No 2 demonstrates a lack of candour or a lack of diligence on the part of Mr Ong and the CEPU. The propositions that candour and full disclosure of relevant facts is required of applicants for a permit and that proposed permit holders should diligently assist in that regard are uncontroversial. However, I do not regard the failure to disclose the circumstances in Lend Lease No 2 as indicating a lack of candour or a failure to exercise due diligence. It is difficult to see how a proceeding that is yet to be determined in which allegations are contested can be relevant to the assessment that I am required to undertake. Even if it were disclosed, it would not be appropriate to take into account the existence of such a proceeding or the allegations made therein. It seems to me that the existence of such a proceeding is not a relevant matter, and it must follow that there was no obligation to disclose Lend Lease No 2.

• [22] For my part, I do not think that the proposition that unresolved proceedings are not relevant to whether the official is a fit and proper person can be stated in such absolute terms. Section 513(1)(g) requires that the Commission, when determining whether an official is a fit and proper person to hold a permit, must take into account "any other matters that the FWC considers relevant". Any matter that could rationally bear upon whether the official is a fit and proper person to hold a permit might be considered a "relevant matter".[10]

• [23] A member of the Commission might consider the fact of proceedings, and the existence of unresolved allegations in relation to an official, to be relevant to whether they can be satisfied the official is a fit and proper person to hold a permit. It is to be remembered that the expression "fit and proper person" is intended to give the widest scope for judgment and for rejection.[11] The concept of fitness and propriety should not be narrowly construed or confined.[12] Whether unresolved allegations might be relevant is likely to depend on the seriousness or number of the allegations, their source or foundation and whether there is any material placed before the Commission which supports the credibility of the allegations. That is not, of course, to suggest that the Commission would approach the assessment of whether an official is a fit and proper person should be approached on the assumption that untested allegations are true.

• [24] In Application by Construction, Forestry, Mining and Energy Union for an Entry Permit for Merkx [2016] FWC 161, for example, Hatcher VP (as his Honour then was) rejected the contention that only resolved proceedings could be considered as relevant for the purposes of s 513(1)(g). His Honour said:

[26] In relation to s.513(1)(g), I reject at the outset the construction of the provision advanced by the CFMEU that it was to be read as confined to findings of conduct by a relevant court or authority as a result of finalised proceedings. This submission appeared to be an attempt to invoke the eiusdem generis rule of statutory construction. That rule, under which a general expression appearing at the end of a list of specific matters may be read to be confined to the same genus or class as the specific matters, presupposes that the specific matters all fall within a genus - that is, that they "possess some common and dominant feature". The CFMEU submission fails at the outset because paragraph (a) of s.513(1) clearly does not fall within the postulated genus. Further, because the "fit and proper person" standard established by s.512 for the holding of an entry permit is one which gives "the widest scope for judgment and indeed for rejection" in the assessment of the relevant personal characteristics of the individual concerned, I do not consider that there is any contextual basis for reading down s.513(1)(g). On its ordinary language, it requires the Commission to take into account any matter which it considers relevant to deciding whether a particular official is a fit and proper person to hold an entry permit. Of course, the requirement in s.513(1) to take particular matters into account does not dictate the weight that must be assigned to each matter or the relationship each matter is to have to the outcome of the application. That is up to the decision maker to assess in the exercise of his or her discretion.

• [25] With respect, I agree that conduct which might be considered relevant for the purposes of s 513(1)(g) of the Act is not necessarily limited to matters subject to findings by a court or tribunal in finalised proceedings.

• [26] However, as I have said, the weight (if any) that can be given to unresolved allegations will depend on the material available to the Commission. In Application by Construction, Forestry, Mining and Energy Union for an Entry Permit for Merkx [2016] FWC 161, Hatcher VP went on to say with respect to particularly proceedings involving Mr Merkx:

[34] In relation to pending proceedings in SAD 253/2014, all I have before me is the originating application filed by the Director dated 9 October 2014. That application alleges that Mr O'Connor, Mr Merkx and the CFMEU committed contraventions of ss.348 and 355 of the FW Act on 13 May 2014 at the Royal Adelaide Hospital site and seeks the imposition of pecuniary penalties on them. It is apparent that the pleaded allegations concern the same events which were the subject of consideration in DFWBII v Cartledge. The affidavit which accompanied the application when it was filed was not placed before me. No evidence in support of the application has yet been filed in the court. Probative evidence that Mr Merkx had committed contraventions of ss.348 and 355 would clearly be a relevant matter required to be considered under s.513(1)(g), but there was no such evidence before me, only a series of untested allegations which have not been admitted. The Director was unable to articulate any basis upon which I could give the allegations in the originating application any weight beyond saying they were serious in nature. It may be accepted that the allegations are serious, but at this stage they are only allegations at least so far as Mr Merkx is concerned. For this reason I cannot give them any weight in my consideration of the CFMEU's application.

• [27] In this matter, I am faced with a similar situation. The only material before the Commission in relation to the allegations subject of the proceedings in the Federal Court is the amended statement of claim filed by BMD Constructions Pty Ltd on 4 October 2024. I have also been provided with an interlocutory decision of Logan J in those proceedings in BMD Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union (No 2) [2024] FCA 569 as well as a decision of Pidgeon IC of the Queensland Industrial Relations Commission in BMD Constructions Pty Ltd v Construction, Forestry, Mining, and Energy Union of Employees & Ors [2024] QIRC 105 which dealt with the same incidents.

• [28] The material before the Commission indicates that the allegations subject of the Federal Court proceedings are contested, both as to what in fact occurred and whether the requests made to officials of the CFMEU, including Mr Howard and Mr Thompson, by BMD were reasonable. In BMD Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union (No 2) [2024] FCA 569, Logan J made certain interlocutory injunctions on application by BMD. In the course of the decision, his Honour concluded that there was a sufficiently strong prima facie case to justify interlocutory relief being granted. His Honour said:[13]

Suffice it to say, for present purposes, and as a matter of impression on the evidence, B.M.D's case that its particular site induction requirements, at the place where they occur, strikes me as a strong one for a conclusion that the requirement is reasonable. Over again, that is not necessarily concluded view one would reach in a trial. But it is sufficient, in terms of that aspect, for B.M.D to have established a prima facie case of sufficient strength.

• [29] His Honour also concluded, on the material then available, that:[14]

Further, it is quite apparent to me, on the evidence to hand, that there is a disposition on the part of the respondents not to comply with site induction requirements. So that, with respect to past behaviours, they are something of a predictor, necessarily, for what might occur into the future, up to and including trial. I have viewed, in particular, video footage, as described in affidavit evidence, of conduct in late April of this year at the project site where endeavours were made to seek compliance with site induction, which were treated with apparent disdain. Taken in conjunction with the evidence which I described as to events on 14 May, that has informed me as to the likelihood in the future of a disposition not to comply.

• [30] The decision of Logan J was evidently made on the basis of the prima facie strength of the evidence put forward by BMD and without the evidence being tested or the CFMEU putting forward its evidence concerning the relevant events. As his Honour observed, the tentative observations made in dealing with the application for interlocutory relief should not be taken to suggest that the same conclusions would be reached after trial.

• [31] Some of the conduct subject of the proceedings was apparently captured in video footage. That footage is not presently before the Commission. However, it appears that the conclusions that should be drawn from what is shown in the footage is the subject of dispute and it cannot be assumed that the video footage resolves any factual dispute in relation to the conduct of Mr Howard. The Queensland Industrial Relations Commission had earlier refused an application by BMD for interim relief. Pidgeon IC observed in that decision:[15]

I have viewed the CCTV footage and the body worn camera footage presented by the Applicant. No one depicted in the footage gave evidence at the hearing today. Even if I were willing to make an assessment of that footage in the absence of commentary from those depicted in it, it appears that the real controversy arises from an argument about whether requests regarding work health and safety requirements made of the Respondents pursuant to s 128 of the WHS Act were reasonable or whether the Respondents were properly acting in compliance with the requirements imposed on permit holders by ss 117, 118 and 119 of the WHS Act. All of these matters will be addressed at the hearing commencing on 13 May 2024.

• [32] In that respect, I have also considered the exchange of correspondence between the Ombudsman and Mr Irving in relation to Mr Howard. As I indicated above, the only inference I can draw from the exchange of correspondence is that the Ombudsman accepted the explanation of the video footage provided by Mr Irving and, at present advised, no longer has concerns as to whether Mr Howard is a fit and proper person to hold an entry permit. Although the view of the Ombudsman is obviously not binding on the Commission, it is a matter that I have taken into account. I also give some weight to the views of the CFMEU Administrator. The functions of the Administrator which he has been appointed to undertake include to undertake investigations into past practices with the CFMEU, to promote compliance with workplace laws and to ensure that officials and employees of the CFMEU have complied with and continue to comply with their obligations.[16] Having reviewed the relevant incidents, Mr Irving plainly has confidence in Mr Howard.

• [33] The allegations made in the Federal Court proceedings in relation to Mr Howard are serious. It is alleged that Mr Howard engaged in other forms of improper conduct in the exercise of rights under an entry permit, including physical obstruction, abusive language and throwing a document. Those allegations are capable of being relevant to whether I can be satisfied that Mr Howard is a fit and proper person to hold an entry permit. However, on the material available to me, it is apparent that the video footage of one of the incidents is capable of being interpreted in different ways. Independent persons, including the Ombudsman and the Administrator, have concluded that the footage is not necessarily damning of Mr Howard's conduct. I assume BMD and its lawyers hold a different view. There is no other evidence before the Commission in relation to the incidents. In those circumstances, I cannot regard the simple fact of the allegations as capable of having significant weight in the assessment of whether Mr Howard is a fit and proper person to hold a permit. The other permit qualification matters in s 513(1) weigh in favour of a finding that Mr Howard is a fit and proper person. Having considered each of the permit qualification matters in s 513(1) of the Act, I am satisfied that, on the material that is currently before the Commission, Mr Howard is a fit and proper person to hold an entry permit.

• [34] Turning to the position of Mr Thompson, he is subject of allegations raised in the Federal Court proceedings in respect of only one incident. In that incident, it is alleged that he, along with a number of other officials, refused to comply with a request to observe with visitor entry requirements imposed by BMD and entered the site without doing so. There is a contest as to whether that request was reasonable. In those circumstances, although I have considered the existence of the allegations, I cannot attribute any weight to that matter in assessing whether Mr Thompson is a fit and proper person to hold a permit given the allegations are in contest and the material before me reveals very little about what it is alleged Mr Thompson did. The remaining permit qualification matters in s 513(1) weigh in favour of a finding that Mr Thompson is a fit and proper person. Having considered each of the permit qualification matters in s 513(1) of the Act, I am also satisfied that, on the material currently before the Commission, Mr Thompson is a fit and proper person to hold an entry permit.

• [35] Finally, I note that, if findings are subsequently made in the Federal Court proceedings that Mr Howard or Mr Thompson contravened ss 499 or 500 of the Act and they (or the CFMEU) are ordered to pay pecuniary penalties in relation to those contraventions, the Commission is required to impose conditions on, suspend or revoke the entry permits they hold unless it would be harsh or unreasonable in the circumstances.[17] The Commission will be required to revisit the appropriateness of Mr Howard and Mr Thompson holding the permits which will be issued to them in the event that relevant contraventions are found to have occurred and pecuniary penalties imposed with respect to contraventions of Part 3-4 of the Act.

• [36] Taking all the permit qualification matters into account, on the information available to the Commission, I am satisfied that Mr Howard and Mr Thompson are both fit and proper persons to hold an entry permit. The applications by the CFMEU for entry permits to be issued are granted.

• [37] Entry permits will be issued separately.

[1] Construction, Forestry and Maritime Employees Union - Construction and General Division - Queensland Northern Territory Divisional Branch [2025] FWC 533.

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

[3] 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].

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

[5] 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].

[6] 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].

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

[8] See, for example, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch - Peter Ong [2015] FWC 4450 at [48]; Construction, Forestry, Mining and Energy Union - Construction and General Division, New South Wales Divisional Branch [2017] FWC 5003 at [16]- [17]; Application by the Construction, Forestry, Maritime, Mining and Energy Union [2020] FWC 4915 at [33]- [35]; Construction, Forestry, Maritime, Mining and Energy Union - Construction and General Division, New South Wales Divisional Branch [2021] FWC 2351 at [12]- [13]; Construction, Forestry, Maritime, Mining and Energy Union - Construction and General Division, Victoria-Tasmania Divisional Branch [2022] FWC 1078 at [11].

[9] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch - Peter Ong [2015] FWC 4450 at [48].

[10] B v Australian Postal Corporation [2013] FWCFB 6191; (2013) 238 IR 1 at [21] (in the context of s 387(h) of the Act).

[11] Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-157 (Dixon CJ and McTiernan and Webb JJ); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FWCFB 5947 at [23].

[12] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 348 (Mason CJ).

[13] BMD Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union (No 2) [2024] FCA 569 at [26].

[15] BMD Constructions Pty Ltd v Construction, Forestry, Mining, and Energy Union of Employees & Ors [2024] QIRC 105 at [35].

[16] Fair Work (Registered Organisations) Act 2009 (Cth), s 323K(2A), (3) and (4).

[17] Fair Work Act 2009 (Cth), s 510(1)(d) and (2).

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