s.512 - Right of entry

Construction, Forestry and Maritime Employees Union

Application for an entry permit under s 512 - permit issued

• [1] The Construction, Forestry, and Maritime Employees Union (CFMEU) has made an application under s 512 of the Fair Work Act 2009 (FW Act) for the issuance of a right of entry permit to one of its officials, Nathan Fisher. Section 512 confers on the Commission a discretion to issue a permit to an official of a union if it is satisfied that the official is a fit and proper person to hold an entry permit, taking into account the considerations in s 513 of the FW Act.

• [2] In November 2014, Mr Fisher was convicted of serious criminal offences. In May of that year, he had engaged in a two day spree of robberies at bottle shops and service stations to pay back a drug debt. During the robberies, he brandished an unused syringe, and pretended to be holding a firearm under his clothes. His victims handed over several thousand dollars. After repaying his debt, Mr Fisher handed himself in to police. He pleaded guilty to 6 counts of armed robbery and was sentenced to 5 years' imprisonment, of which he served 3 years before being paroled. At the time of his offending, Mr Fisher was addicted to methamphetamine. Those from whom he had borrowed money were threatening to harm his family. The arc of his life had reached its nadir. Then, in prison, he decided to change.

• [3] Mr Fisher gave evidence that prison saved him. It was an opportunity to get clean and to rebuild his relationships. His family supported him. He resolved never to use drugs again. He enrolled in two high-intensity rehabilitation programs and attended Narcotics Anonymous meetings that helped him to break his addiction. He completed a Certificate 4 in work health and safety. He restored his mental and physical health. Mr Fisher has not used drugs since the time of his offending in May 2014.

• [4] After his release from prison, Mr Fisher began working for his brother, who runs a roof carpentry business. Then he worked for a formwork company. In 2018, he became a CFMEU delegate, and a health and safety representative. He later worked for several other construction companies, where he also served as a delegate and safety representative. In August 2022, he was employed by the CFMEU as an organiser. In September 2022, he was issued an entry permit under the Industrial Relations Act 1979 (WA) (IR Act). He has been exercising entry rights in the state industrial relations system regularly since that time.

• [5] Mr Fisher said that he is proud that he was able to turn his life around, and that he wants to use his experiences to try to help others who are going through tough times, including drug addiction. He said that his union roles have given him an opportunity to make a positive difference to the industry and to make up for his past wrongs. For these wrongs, Mr Fisher expressed genuine remorse. He said that words could not describe how sorry he was for his offending, and that he was especially sorry for the attendants whom he robbed, and who must have been terrified.

• [6] It has not been all plain sailing since Mr Fisher's release from prison. He was fined twice, in 2020 and 2021, for breaching police orders that he stay away from home for 72 hours. Mr Fisher said that the orders were made after he and his partner had been arguing, and that he had not taken the orders seriously enough, returning early when his partner asked him to come home. Mr Fisher said in his evidence that he had acted irresponsibly and would not do so again.

• [7] Mr Fisher was a credible witness. I accept his written and oral evidence. It was detailed, genuine and persuasive. Mr Fisher is proud of the new life that he has built for himself, and of the new person that he has become. In my assessment he is determined to continue to be a responsible and productive member of society.

• [8] Attached to the CFMEU's application are statements from several directors and managers of businesses who have had dealings with Mr Fisher as a construction worker and in his capacity as a union organiser. They state variously that in their experience Mr Fisher is professional and disciplined, and that they have had no concerns about his conduct. Also attached is a statement from the administrator of the CFMEU, Mark Irving KC, which sets out the reasons why he decided to authorise the bringing of this application in the Commission. Mr Irving noted the very troubling nature of the offences committed by Mr Fisher in 2014, and that he had questioned whether a person with such a history should continue to serve the union at all, but that in Mr Fisher's case, the answer was yes. Mr Irving said that he was impressed by Mr Fisher's insight into his offending, and by the fact that he had turned his life around, and that he was convinced that Mr Fisher had repudiated his former life through the discipline that had enabled him to defeat his addiction. Mr Irving noted that Mr Fisher had not gone straight from prison to a union role, but had worked his way up in the industry through hard work.

• [9] I have decided to issue a permit to Mr Fisher. Decisions to issue permits do not have to be published, but in this case it is appropriate to explain on the public record why I am satisfied that Mr Fisher is a fit and proper person to hold a federal entry permit, and why in my view the public should accept him as such. In short, he is a different man from the one he was in May 2014. When Mr Fisher was sent to prison, he took responsibility for himself - for his past actions, and for his future - and remade himself into the kind of person that he wanted to be. That person is in my opinion a fit and proper person to hold a federal permit.

• [10] I will briefly address the permit qualification matters that the FW Act requires me to take into account. Section 513(1) states that in deciding whether an official is a fit and proper person, the Commission must take into account the following matters: whether the official has received appropriate training (s 513(1)(a)); whether the official has ever been convicted of an offence against an industrial law (s 513(1)(b)), or against a law involving certain kinds of conduct, including the intentional use of violence or damage to property (s 513(1)(c)); whether the official has been ordered to pay a penalty under the FW Act or other industrial law (s 513(1)(d)); whether the official has ever had a permit revoked or suspended (s 513(1)(e)), or cancelled etc. (s 513(1)(f)); and any other matters that the Commission considers relevant (s 513(1)(g)).

• [11] I am satisfied that Mr Fisher has completed appropriate training about the rights and responsibilities of a permit holder (s 513(1)(a)). Most recently, in February 2025, Mr Fisher undertook right of entry training provided by Brian Lacy, a former Senior Deputy President of the Australian Industrial Relations Commission. Mr Lacy prepared a report on Mr Fisher's training, which noted that Mr Fisher had demonstrated that he understands the responsibilities and obligations of permit holders under the FW Act, and also under the IR Act, pursuant to which he had been exercising entry powers for several years. Mr Lacy also noted that Mr Fisher had affirmed that he was committed to complying with the requirements of the FW Act. This permit consideration weighs in favour of the application.

• [12] Mr Fisher has not been convicted of an offence against an industrial law (s 513(1)(b)). In this regard, it is relevant to note that Mr Fisher has worked in the construction sector for many years. He commenced working as a builder after finishing high school in 2004 and has worked in a variety of roles, including as a labourer, a foreman and a supervisor. In 2017 he joined the CFMEU. He became a union delegate and health and safety representative for several years. Since 2023, Mr Fisher has worked as an organiser in the local government sector, following the transition of local councils into the State industrial relations system. This has involved Mr Fisher exercising right of entry to hold discussions, or to investigate alleged breaches, under the IR Act. The consideration in s 513(1)(b) weighs in Mr Fisher's favour.

• [13] Mr Fisher has been convicted of offences of the kind in s 513(1)(c). The offences for which Mr Fisher was imprisoned in 2014 are referred to above. Mr Fisher also has other convictions: for obstructing police in January 2007, for which he was fined $200; for assault, which occurred in a bar fight in June 2009, and for which he was fined $5,000; and for trespass and obstruction in 2012, for which he was fined $300. These are serious matters that all weigh against Mr Fisher's application.

• [14] Mr Fisher has never been ordered to pay a pecuniary penalty under an industrial law, nor has any person ever been ordered to pay a pecuniary penalty in relation to action taken by Mr Fisher (s 513(1)(d)). As to ss 513(1)(e) and (f), Mr Fisher was issued an entry permit under the IR Act on 19 September 2022, and has exercised rights under the IR Act regularly since that time. The permit issued to him under the IR Act has not been the subject of any adverse action. These considerations are in Mr Fisher's favour.

• [15] For a matter to be relevant for the purposes of s 513(1)(g), it must be something which can rationally affect the evaluation of whether the official is a fit and proper person to hold an entry permit. Relevant matters include those that relate to the personal characteristics of the official that are pertinent to the discharge of the functions, and the exercise of the rights, that attach to holding a federal permit (see CEPU [2015] FWC 1522 at [32] (Hatcher VP). Mr Fisher has disclosed the contraventions of the 72 hour police orders that are referred to above. He also has a conviction from 2014, at the time of his addiction, for driving a vehicle while his licence was suspended, and for speeding, for which he was fined. These are all relevant matters that weigh against Mr Fisher's application.

• [16] In my opinion, other relevant matters weigh in Mr Fisher's favour. First, Mr Fisher is committed to being a law-abiding and productive citizen. Secondly, he is committed in particular to complying with his obligations as a permit holder. Thirdly, Mr Fisher has been exercising entry rights in the state system for several years without incident. Fourthly, Mr Fisher has a good industrial record. Fifthly, through his own will and discipline, Mr Fisher has become a different person from the man he was in 2014. He is committed to continuing to be that person.

• [17] My initial reaction to the application was one of great concern that someone with a serious criminal record should seek to have a federal entry permit. The Commission's function under s 512 is after all a protective one. But the logical and fair application of the permit qualification matters to the facts of this case leads to the conclusion that Mr Fisher is now a fit and proper person to hold an entry permit, and that a permit should be issued to him.

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