s.512 - Application for a right of entry permit

Application by the Construction, Forestry and Maritime Employees Union for an entry permit for Trevor Shane Sinclair

Application for a right of entry permit for Trevor Shane Sinclair - Whether fit and proper person to hold entry permits under the Fair Work Act 2009 (Cth) - Consideration of the "permit qualification matters" in s 513(1) - Mr Sinclair is respondent 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 -- Commission satisfied Mr Sinclair is a fit and proper person - Permit issued.

• [1] The Construction, Forestry and Maritime Employees Union (the CFMEU) has made an application for a right of entry permit to be issued to Trevor Sinclair under s 512 of the Fair Work Act 2009 (Cth) (the Act). Mr Sinclair is employed as a State Organiser in the New South Wales Branch of the Construction and General Division of the CFMEU, since 25 August 2025. He was previously employed as an organiser for the Queensland and Northern Territory Branch of the CFMEU from 5 February 2024 to 25 July 2025. Mr Sinclair held an entry permit (RE2024/77) in connection with his work for the Queensland and Northern Territory Branch which he returned when he ceased employment in that Branch.

• [2] The application discloses that Mr Sinclair is a named as a respondent in ongoing proceedings in the Federal Court Australia in Matter Number QUD245/2024. The proceedings were brought by a company known as BMD Constructions Pty Ltd and allege that a number of individuals including Mr Sinclair contravened ss 499 and 500 of the Act. Mr Sinclair is named as the eleventh respondent. In relation to Mr Sinclair, the proceedings concern events alleged to have occurred on 29 April 2024 at the site of a construction project involving the duplication of the Centenary Bridge across the Brisbane River in Brisbane.

• [3] On 9 September 2025, my chambers provided the application to the Fair Work Ombudsman and the CFMEU Administration and sought confirmation of whether either the Ombudsman or the Administrator wished to be heard in relation to the Application. By letter dated 9 September 2025, the CFMEU Administrator also confirmed that the application was made with authorisation of a delegate of the Administrator and that the Administrator supports the application and does not wish to be heard separately. On 10 September 2025, the Ombudsman indicated by email to my chambers that she does not wish to be heard in relation to the application.

• [4] Directions were then issued for the CFMEU to file any material in support of the application by 19 September 2025. The CFMEU filed written submissions dated 19 September 2025, statutory declarations made by Mr Sinclair and Michael Crosby, who is the Executive Officer of the Branch. In addition to that material, the CFMEU also provided several documents related to the ongoing proceedings in the Federal Court including an Amended Statement of Claim filed on 4 October 2024 and an Amended Defence filed on behalf of the third to twelfth respondents on 18 October 2024.

• [5] 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.

• [6] The Commission may issue a permit under s 512 only if it is satisfied that Mr Sinclair 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 directed at an inquiry as to fitness and propriety for the purposes of holding an entry permit.[2] 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,[3] conduct in relation to the obligations of a permit holder or under industrial laws generally are likely to be most relevant.

• [7] Each of the "permit qualification matters" listed in s 513(1) must be taken into account in assessing whether an application is a fit and proper person to hold a permit. 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] The application annexed a letter dated 25 August 2025 from Sherri Hayward, Senior Legal Officer at the CFMEU to Mr Sinclair setting out that Mr Sinclair had "completed training about the rights and responsibilities of a permit holder under the Fair Work Act" which was carried out by Ms Hayward. The letter further sets out that at the conclusion of the training, Mr Sinclair took a written multiple-choice test and received a result of 18 out of 20 correct answers. I am satisfied that Mr Sinclair has received appropriate training about the rights and responsibilities of a permit holder pursuant to s 513(1)(a) of the Act. This weighs in favour of a finding that Mr Sinclair is a fit and proper person to hold an entry permit.

• [9] Section 513(1)(b)-(d) relate to offences and penalties. As part of the application, Mr Sinclair has declared that he has never been convicted of an offence against an industrial law or any offence against a law involving entry onto premises, fraud or dishonesty, or the intentional use of violence against another person or intentional property damage and destruction. The application also sets out that Mr Sinclair has not been the subject of a penalty under the Act or any other industrial law and that no other person has been ordered to pay a penalty in relation to action taken by him. These factors weigh in favour of Mr Sinclair being a fit and proper person to hold an entry permit.

• [10] In relation to s 513(1)(e), the application set out that Mr Sinclair has never had a permit issued which has been revoked, suspended or made subject to conditions. Mr Sinclair has also not been disqualified from exercising or applying for a right of entry as set out in s 513(1)(f). These matters weigh in favour of Mr Sinclair being a fit and proper person to hold an entry permit.

• [11] Section 513(1)(g) requires that the Commission take into account any other matter 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. As I have indicated, the application disclosed that Mr Sinclair is named as a respondent in ongoing proceedings in the Federal Court in Matter Number QUD245/2024. I consider the existence of the Federal Court proceedings and the allegations that have been made in relation to Mr Sinclair in those proceedings to be a matter that could rationally bear upon whether I can be satisfied that Mr Sinclair is a fit and proper person to hold an entry permit. The weight that can be attached to that matter depends upon the nature of the material which is presently before the Commission.

• [12] The Amended Statement of Claim filed in the Federal Court proceedings alleges that Mr Sinclair attended a location referred to as the Southern Abutment Site on 29 April 2024 together with six other individuals. It is alleged that Mr Sinclair and the other individuals, despite being requested to do so, refused to comply with requirements to undertake an induction, sign a visitor register and comply with the requirements specified therein and pushed past representatives of BMD.[6] It is further alleged that Mr Sinclair, with two others scaled a retaining wall and went over the fence into an exclusion zone thereby causing work to cease.[7]

• [13] The Amended Statement of Claim alleges that Mr Sinclair contravened s 499 of the Act by seeking to exercise a State or Territory OHS right without complying with a reasonable request of the occupier of the premises, in this case, by failing to comply with the request to comply with the visitor entry requirements.[8] It is further alleged that Mr Sinclair contravened s 500 of the Act by, together with other individuals, trying to force his way past representatives of BMD, scaling a retaining wall and jumping over a fence and entering an exclusion zone without authorisation and causing work to cease.[9]

• [14] On 15 May 2024, Justice Logan made an interlocutory injunction on application by BMD.[10] The only aspect of the injunction which applied to Mr Sinclair specifically was as follows:

4. The Second to Seventh and Ninth to Twelfth Respondents must not exercise any right of entry at the Project, in accordance with Chapter 3, Division 4 of the Fair Work Act 2009 (Cth), or Part 7 of the Work Health and Safety Act 2011 (Qld) unless they undertake the Visitor Induction.

• [15] The order applied only to the "Project" which was defined to refer to "the construction sites established for the Centenary Bridge Upgrade Project at the date of this order, being the fenced construction site running parallel to the western side of the Centennial Highway between Sinnamon Road and Kenmore Road". Other injunctive orders were made which operated upon the CFMEU or other individual officials of the CFMEU.

• [16] On 23 May 2024, the interim injunction was to cease operation. On that day, Logan J made further injunctive orders in the same terms which were made to operate until the hearing and determination of the proceedings or further earlier order.[11] In both interlocutory decisions, Mr Sinclair was not specifically mentioned, and no findings were specifically made in relation to this conduct. The Amended Defence indicates that the individual respondents each deny the allegations in the proceeding and claim the privilege against self-exposure to penalties. The Federal Court proceedings do not appear to have yet been allocated trial dates and it can be assumed that the resolution of the proceedings may be some time away.

• [17] I have previously considered applications for right of entry permits made by the CFMEU on behalf of two other individual respondents named in the same Federal Court proceedings in Application by the Construction, Forestry and Maritime Employees Union for an entry permit for Joshua Thompson and Dylan Howard [2025] FWC 1177. At that time, I considered whether allegations made in unresolved court proceedings could constitute a relevant matter for the purpose of s 513(1)(g) and said:[12]

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".[13]

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.[14] The concept of fitness and propriety should not be narrowly construed or confined.[15] 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.

• [18] In this matter, I also consider that the allegations made in relation to Mr Sinclair are a matter that that could rationally affect the assessment of whether he is a fit and proper person to hold an entry permit and relevant for the purposes of s 513(1)(g). However, the weight that can be attributed to the allegations depends on the material before the Commission. In its submissions, the CFMEU referred to the decision of Hatcher VP in Application by CFMEU - Construction and General Division, SA Divisional Branch [2016] FWC 161 in which Mr Merkx, an employee of the CFMEU sought a right of entry permit whilst he was a named respondent in ongoing proceedings in the Federal Court. In that matter, his Honour said "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".[16]

• [19] In this matter, the only material which is before the Commission in relation to the allegations is the Amended Statement of Claim. The allegations against Mr Sinclair are, at worst, that he attended a work site on a single occasion with other officials of the CFMEU, refused to comply with site induction procedures, pushed past company representatives and called a retaining wall and fence to enter an exclusion zone. The Amended Statement of Claim does not, with any clarity, indicate what specifically it is alleged Mr Sinclair did. For example, although it is alleged that Mr Sinclair scaled a wall and went over a fence, it is unclear what role it is alleged Mr Sinclair played in "pushing past" company representatives. I am also conscious that the allegations are contested, and I cannot, in the absence of any evidence in relation to the allegations, assume they are true. In those circumstances, there is not a significant amount of weight that can be attributed to the allegations in the proceedings in circumstances where they remain untested and there is limited material before the Commission.

• [20] The CFMEU also filed a statutory declaration from Mr Sinclair dated 17 September 2025 and a statutory declaration from Mr Crosby dated 17 September 2025. I have had regard to both. Mr Crosby's statutory declaration includes the following:

6. I am aware of the allegations made against him during his period of employment in the Queensland Branch of the CFMEU, Construction and General Division. I have weighed up that history and decided to proceed with his appointment.

7. I believe him when he says that he regrets the fact that he felt he had to obey the dictates of former Queensland Secretary, Michael Ravbar concerning the exercise of entry rights.

8. I have spoken to Trevor and made him aware of the fact that his continued employment with the CFMEU depends on his strict adherence to the law as it relates to right of entry. He has accepted that condition of his employment.

9. He has informed me and I believe that he understands what is required of him. He has agreed that he will pay particular attention to the need to adhere to all parts of the law.

10. I have placed him under the supervision of an experienced Coordinator who will train and supervise his activity on a day to day basis.

11. I am confident that under a different administration, he has the ability to adhere to the demands I make of him for ethical behaviour.

12. Failure to obtain a right of entry permit will severely affect the degree to which he is capable of doing the work I allocate to him.

13. I support his application for issue of a right of entry permit. I would not do so if I did not consider him to be a fit and proper person to be issued an entry permit

• [21] I consider that it is appropriate to give weight to the opinion of Mr Crosby and to the steps taken by Mr Crosby to impress upon Mr Sinclair the importance of complying with the obligations of a permit holder. Mr Crosby is the delegate of the CFMEU Administrator and has been appointed by the CFMEU Administrator as the Executive Officer of the New South Wales Branch. The role of the CFMEU Administrator includes to "promote compliance by the Construction and General Division with the laws (including workplace laws) of the Commonwealth, the States and the Territories" and ensure that officers and employees complied and continue to comply with the obligations imposed by the Fair Work (Registered Organisations) Act 2009 (Cth).[17] The fact that the CFMEU Administrator, and his delegate, have confidence in Mr Sinclair is, in the statutory context, relevant to the assessment as to whether he is a fit and proper person to hold an entry permit.

• [22] Mr Sinclair's declaration sets out that he understands his employment is conditional on his following the law and that he is "committed to my job and making sure I can get better outcomes for members by acting within the bounds of the law". He indicates that he believes that the CFMEU can get better results for itself and its members by acting legally and responsibly and says that he wants to be part of that. Mr Sinclair indicates that, based on legal advice, he has claimed and maintains penalty privilege in relation to the allegations raised in the Federal Court proceedings. As such, he has not provided a response to the allegations themselves. There can be no criticism of him for adopting that course.

• [23] Having considered the permit qualification matters set out in this decision, I am satisfied that Mr Sinclair is a fit and proper person to hold an entry permit. If findings are made in the Federal Court proceedings that Mr Sinclair contravened the Act and he (or the CFMEU) are ordered to pay pecuniary penalties in relation to those contraventions, the Commission must impose conditions on, revoke or suspend his entry permit unless it is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.[18] The Commission will give consideration to that matter if the occasion arises.

[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].

[7] Amended Statement of Claim, [50](a).

[10] B.M.D Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union [2024] FCA 528.

[11] B.M.D Constructions Pty Ltd v CFMEU (No 2) [2024] FCA 569.

[12] Application by the Construction, Forestry and Maritime Employees Union for an entry permit for Joshua Thompson and Dylan Howard [2025] FWC 1177 at [22]- [23].

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

[14] 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].

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

[16] Application by CFMEU - Construction and General Division, SA Divisional Branch [2016] FWC 161 at [34].

[17] Fair Work (Registered Organisations) Act 2009 (Cth), s 323K(3) and (4)(a).

[18] Fair Work Act 2009 (Cth), s 510(1)(d).

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