Fair Work Act 2009

s.512 - Application for a right of entry permit

Construction, Forestry and Maritime Employees Union - Construction and General Division, Western Australia Divisional Branch

Application for a right of entry permit for Michael John Buchan - whether fit and proper person to hold an entry permit under the Act- satisfied that fit and proper person - permit issued.

• [1] The Construction, Forestry and Maritime Employees Union (CFMEU), Construction and General Division Western Australia Branch (the Branch) has made an application under s.512 of the Fair Work Act 2009 (Cth) (the FW Act) for a right of entry permit for Mr Michael John Buchan. Mr Buchan is State Secretary of the Branch and its State Union counterpart the Construction, Forestry, Maritime and Energy Union. He has held these offices since 2012.

• [2] Mr Buchan commenced work for the CFMEU in 2003 as an organiser. He held a number of entry permits the last of which expired in April 2015[1].

• [3] Section 512 of the FW Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if the Commission is satisfied that the official is a 'fit and proper person' to hold the entry permit.

• [4] 'Official' is defined in s.12 of the FW Act as a person who holds an office in or is an employee of an industrial association. 'Industrial association' includes a registered organisation and a branch of such an organisation.

• [5] In deciding whether an official is a fit and proper person, the Commission must have regard to the permit qualification matters set out in s.513(1) of the FW Act.

(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;

(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] Each of the permit qualification matters listed in s.513(1) must be taken into account and given proper, genuine and realistic consideration and appropriate weight. The focus of the Commission's inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit and exercise the powers, functions and responsibilities attached to holding a permit.[2]

• [7] Section 515 of the FW Act allows the Commission to impose conditions on entry permits, taking into account the permit qualification matters. This should be considered in conjunction with assessing fitness and propriety.[3]

• [8] The Branch relies on the following in support of the application:

a) Information contained in its form 42 Application for an entry permit including information about Mr Buchan's actions leading to him and the CFMEU being ordered to pay penalties.

b) A declaration by Robert Benkesser, President of the Branch in which Mr Benkesser declares that:

1. Mr Buchan has addressed each of the permit qualification matters outlined in s. 513(b) to (f) of the FW Act;
2. Mr Buchan has received appropriate training in relation to the rights and obligations of permit holders under the FW Act.
3. Mr Buchan has also received additional training on those applications from Mr Brian Lacy AO who is a former Senior Deputy President of the Fair Work Commission .
4. He has spoken to Mr Buchan about the permit qualifications matters in s. 513(b) to (f) of the FW Act.
5. He is satisfied that Mr Buchan meets those permit qualifications.

1. A report from Mr Brian Lacy AO about the additional training referred to by Mr Benkesser in which Mr Lacey states:
   1. Mr Buchan actively engaged in training and demonstrated good knowledge of the FW Act including key concepts related to industrial action and rights of entry.
   2. That training covered the purpose of the Right of Entry Permit and legal compliance.
   3. Mr Buchan has in the past contravened the FW Act and Trade Practices Act 1974. He discussed his past contraventions and demonstrated understanding of relevant laws as well as the importance of complying with safety requirements and reasonable requests.
   4. Mr Buchan confirmed his understanding of his rights and responsibilities as a permit holder.
   5. Mr Lacy considered Mr Buchan a fit and proper person to hold an Entry Permit based on his engagement during the training.

Factors in favour of granting the application - ss. 513(1)(a), (b), (c), (g)

• [9] The following permit qualification matters weigh in favour of a finding that Mr Buchan is a fit and proper person to hold an entry permit:

a) In anticipation of filing a new application, Mr Buchan underwent two courses of training about the rights and responsibilities of a permit holder. He underwent a generic course and a specific course which addressed his understanding of the responsibilities of a permit holder in light of previous contraventions of the legislation. (s.513(1)(a)).

b) Mr Buchan has never been convicted of an offence against an industrial law (s.513(1)(b)).

1. Mr Buchan has no convictions for offences against a law of the Commonwealth, a State, a Territory or a foreign country involving:
   1. entry onto premises; or
   2. fraud or dishonesty; or
   3. intentional use of violence against another person or intentional damage or destruction of property (s.513(1)(c)).

d) The views expressed by Mr Benkesser and Mr Lacy that Mr Buchan is a fit and proper person to hold a permit (s.513(1)(g)).

• [10] In Mr Lacy's report on the training he conducted with Mr Buchan he records the following:

10. Buchan has had 37 years' experience in the construction industry, during which he has various roles. For over 20 years he worked as a scaffolder and was for a good period of time a workplace safety representative. In 2003 he started work for the CFMEU as an organiser. In 209 he became a CFMEU Safety Officer and was elected Branch Secretary in 2012.

11.Buchan has had various Board roles in several trade and industry organisations, representing and advocating for his members and the industry more generally, including the Western Australian Building and Construction Consultative Committee, the Construction Training Fund and Redifund Limited. He is to be commended for his work and contributions in these regards.

Factors against granting the application - ss 513(1)(d), (e), (f) and (g)

• [11] The following permit qualification matters weigh against a finding that Mr Buchan is a fit and proper person to hold an entry permit:

a) Mr Buchan or the CFMEU, or both of them, have been ordered pay penalties under the FW Act and other industrial laws in relation to action taken by him on the following occasions (s.513(1)(d)):

1. On 21 July 2011, Mr Buchan was ordered to pay a penalty of $13,000 for contravening s.38 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) in A_ustralian Building & Construction Commission v Construction, Forestry, Mining and Energy Union_ [2011] FCA 810. The CFMEU was ordered to pay penalty of $120,000.

1. On 30 May 2016, Mr Buchan was ordered to pay a penalty of $2,250 in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 616 which on appeal in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 became a pay a penalty of $9,000 and the CFMEU was ordered to pay a penalty of $195,000 in respect of conduct that included Mr Buchan's actions.

2. On 11 May 2017, Mr Buchan and the CFMEU were ordered to pay 3 penalties totalling $16,000 and the CFMEU was ordered to pay $110,000 in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Perth Childrens' Hospital Contraventions Case [2017] FCA 491.

1. On 2 October 2020, Mr Buchan was ordered to pay a penalty of $20,000 and the CFMEU was ordered to pay a penalty of $125,000 for contravening s.46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) in Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 1662.

b) Mr Buchan has had previous right of entry permits suspended, made subject to conditions (s.513(1)(e)) on the following occasion:

1. A permit Mr Buchan was issued under Part 3-4 of the FW Act was made subject to suspension and conditions by an Order of Senior Deputy President Lacy on 18 November 2008 in Jeff Radisich v Construction, Forestry, Mining and Energy Union- Construction and General Division, WA Divisional Branch and Others [2008] AIRC 896. The suspension in involved both an immediate three-month suspension and a further 2-month "suspended suspension" which would only take effect if he breached a provision of Part 15 of the Workplace Relations Act 1996 (Cth) in the 12 months that followed the order made on 18 November 2008.

1. Mr Buchan had a Right of Entry issued under the Industrial Relations Act 1979 (WA) suspended in the following circumstances (s.513(1)(e)):

1. A previous right of entry permit issued to Mr Buchan under the Industrial Relations Act 1979 (WA) was subject to suspension for a period of three months under s.49J of the IR Act following a decision dated 21 July 2004 in Joseph Lee of the Building Industry and Special Projects Inspectorate v Joseph McDonald [2004] WAIRC 12071.

d) A further relevant matter (s513(1)(g)) is that the CFMEU and its State-registered counterpart organisation, the CFMEUW, were each ordered to pay $50,000 for contraventions of s.45D(l) of the Trade Practices Act 1974 (Cth) on 12 December 2006. The Court made a declaration in Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2006] FCA 1730 that Mr Buchan had engaged in conduct on 16 April 2004 that hindered or prevented the supply of concrete to a construction site by engaging in various conduct such as forming a physical barrier between a concrete agitator and the entrance to the site.

• [12] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, [2015] FWC 1522 Vice President Hatcher (as he then was) considered the following principles relevant to the interpretation and application of sections 512 and 513(1) of the Act as follows:

[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia [2014] FWCFB 1973, CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397, Director of the Fair Work Building Industry Inspectorate v CFMMEU [2014] FWCFB 5947, Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland [2014] FWCFB 7154 and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2014] FWFCB 7194. The relevant principles may be summarised as follows:

● A "fit and proper" standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.

● The expression "fit and proper person" in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit.

● The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a "fit and proper person" per se, but rather whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.

● The question of whether an official 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.

● The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.

● The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.

● While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).

● 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, so that 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.

• [13] In Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 a Full Court of the Federal Court of Australia made the following observations in relation to the phrase "a fit and proper person":

[17] The phrase a 'fit and proper person' is used in many different statutory contexts: e.g., Customs Act 1901 (Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase 'fit and proper person' by expressly including a reference to whether an individual is of 'good fame, integrity and character...': e.g., Tax Agent Services Act 2009 (Cth), s 20-15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:

'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 that 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 indication of likely future conduct) or reputation (because it provides 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.'

• [14] The matters set out above are relevant to my assessment of whether Mr Buchan's is a fit and proper person to hold a right of entry permit. It is a matter of weighing those factors that tell in favour against the factors that tell against.

• [15] Going first to the factors which tell. Those factors involve a list of civil penalties imposed by courts dating back as far as 2006. The most recent being 2020. I consider that the historical nature of those proceedings impact the weight they should be given in this matter. I do not consider the penalties prior to 2012, which involve conduct more than 13 years ago and prior to Mr Buchan becoming the State Secretary of the union should be afforded any significant weight due to Mr Buchan's inexperience in the role of organiser and the time that has elapsed since they occurred. I take the same view of the permit suspensions and revocation matters in 2004 and 2008.

• [16] The more recent matters which resulted in penalties being imposed warrant some scrutiny. On 30 May 2016, Mr Buchan was ordered to pay a penalty of $2,250 in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 616 which on appeal in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 became a pay a penalty of $9,000. I consider the reason for and the size of the penalty relevant to a consideration of the seriousness of the conduct relevant to the question I have to decide. A review of the appeal decision indicates that Mr Buchan was one of six CFMEU officials who organised a protest at Perth airport on 22 October 2013. The protests lasted 3 and a half hours. During that time Mr Buchan and the other officials stood in front of the site entrance gates blocking access to the site, were holding CFMEU banners, and placed CFMEU signs and flags on the fence surrounding the site and on the back of utility vehicles parked adjacent to the entrance gate. All but 10 to 15 of the 160 site workers were prevented or dissuaded from entering the site and consequently refused or failed to perform work between 6.30am and 10.00am on that day. The contraventions were admitted. The motivation for the protest was that members of the union had not been paid their wages and entitlements by a subcontractor performing work on the site. By majority the Full Federal Court imposed a penalty of $9,000.00 on Mr Buchan and a penalty of $40,000.00 on the CFMEU on account of his conduct.

• [17] On 11 May 2017, Mr Buchan was ordered to pay 3 penalties totalling $16,000.00 in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Perth Childrens 'Hospital Contraventions Case) [2017] FCA 491. The penalties were for contraventions of Part 3-1 of the FW Act. In 2013, the CFMEU was involved in a dispute with the head contractor at a construction site at the Perth Children's hospital. The dispute involved a number of stoppages of work from January to July 2013. A blockade organised by CFMEU officials in July 2013 involved hundreds of people impeding an entrance to the project and Buchan along with other officials addressed the crowd. The CFMEU had concerns about safety and pay on the site and wanted the head contractor to speak with them. Mr Buchan admitted that his conduct of standing at the entrance to the site and discouraging project employees from entering did in fact prevent and dissuade employees from entering the site that day and thereby prevented the employers from exercising a workplace right (within the meaning of s 341(1)(b) of the FW Act). Between 109 and 136 employees did not work that day, either because they were prevented from entering the site or because they were dissuaded from doing so. Mr Buchan also admitted to earlier contraventions in holding stop work meetings to discuss the dispute. In imposing the penalties the Court took into account Mr Buchan's conduct as a senior official and that his conduct was both defiant and serious. The Court observed that agreed mechanisms were available for dealing with the matters in dispute and they were ignored. Concern was also expressed that there was no evidence of corrective action having been taken to mitigate the effects of the unlawful conduct.

• [18] On 2 October 2020, Mr Buchan was ordered to pay a penalty of $20,000 and the CFMEU was ordered to pay a penalty of $125,000 for contravening s.46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) in Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 1662. Mr Buchan was one of three Branch officials who admitted to organising a half-day strike in 2018 over redundancy pay for workers working on the Perth Airport rail link project. The Court found that the strike, which was at three rail link sites, was plainly unlawful and demonstrated a willingness on the part of the union to disobey the FW Act's requirements. The Court noted that there was no evidence that Mr Buchan instigated the stoppage as distinct from encouraging its continuation.

• [19] I note that these contraventions were not directly related to exercising a right of entry. Mr Buchan did not hold a right of entry permit at the time of the events associated with the Perth Children's Hospital project or Perth Airport rail link project. Nonetheless, the contraventions weigh against a finding that he is a fit and proper person to hold a right of entry permit. It is important that permit holders are familiar with the standard of conduct required under the FW Act generally not simply in relation to the exercise of rights of entry.

• [20] Mr Lacy's report on the training he carried out with Mr Buchan in June 2025 records that he addressed compliance with legislation. It states:

7. Buchan engaged with me and participated positively in the training on Parts 3-1, 3-3 and 3-4 of the FW Act. He responded well to the instruction given and demonstrated a good knowledge of Part 3-4 of the FW Act in particular. He was conversant with the considerations applicable to the grant and revocation of an Entry Permit. In the course of the training he listened carefully, interposing sensible observations and questions at pertinent stages and when tested following the training. He articulated successfully the substance of the concepts of protected industrial action, unlawful industrial action, coercion, adverse action, industrial activity and freedom of association. He accurately explained the reasons and purposes for which permit holder may enter premises and the paper work necessary for those purposes.

8. I discussed with Buchan the rule of law and steps he needs to take to ensure he does not contravene the law generally and the FW Act more particularly. I asked him if he is issued with an Entry Permit will he exercise his right of entry powers responsibly and in accordance with Part 3-4 of the FW Act. Buchan said he will. He said he has good relations with most employers in the industry and he is confident that he can work with them without incident.

• [21] As to the specific obligations associated with rights of entry the report states:

19. In discussing ss 499 and 500 of the FW Act, I impressed on Buchan the nature of conduct that constituted acting in an improper manner. He said he "understands he must comply with reasonable requests " of the occupier, "act in accordance with safety requirements" and "not use abusive or offensive language". He said he has made lots of entries by agreement or invitation without incident.

20. Buchan demonstrated a good knowledge and understanding of the law and principles of right of entry under the FW Act. In questions and answers following the PowerPoint presentation he was able to reflect in his own words the concepts of coercion, adverse action from a union perspective and workplace rights. He recited clearly and accurately the separate purposes for which an Entry Permit may be used and the conditions attaching to each, the attendant paperwork and relevant notice requirements.

• [22] Taking into account these various matters including that there has been no penalty issued against Mr Buchan or the CFMEU on account of Mr Buchan's conduct since 2020 and those penalties related to conduct which occurred in 2018, the fact that Mr Buchan has undertaken training that dealt with that conduct as well as his obligations should he be granted a right of entry permit, the view expressed by Mr Lacy about Mr Buchan being a fit and proper person to hold a right of entry permit, I consider that the penalties do not outweigh the factors that favour a finding that Mr Buchan is a fit and proper person to hold a permit.

• [23] I place some weight on the training conducted by Mr Lacy, whose report was presented as an expert report and who I accept as an expert for the purposes of my findings. I note that earlier decisions in this Commission relating to senior CFMEU officials have taken a similar view of Mr Lacy's training. A decision of Deputy President Gostencnik in relation to the application of the CFMEU for a right of entry permit to be issued to its official, Mr William Warren Tracey, who is the MUA Divisional Branch Secretary of the WA Divisional Branch[4] records that Mr Tracey attended training with Mr Lacy of a similar nature to that provided to Mr Buchan. Deputy President Gostencnik accepted the CFMEU's submission that Mr Tracey's participation in this training should be accorded some significance and that it weighed in favour of a conclusion that Mr Tracey is today a fit and proper person to hold a right of entry permit. Deputy President Wright made the similar findings about Mr Lacy's training in an application for a right of entry permit for Mr Paul Keating who is the MUA Divisional Branch Secretary of the Sydney Branch of the CFMEU[5]. Mr Tracey and Mr Keating had records similar to Mr Buchan of past penalties for contraventions Commonwealth legislation. I take the same approach as these earlier cases in finding that Mr Buchan is a fit and proper purpose to hold a right of entry permit.

• [24] Consequently, I consider that the matters in favour of a finding that Mr Buchan is a fit and proper person to hold a right of entry permit outweigh the matters that tell against. I will grant the application

• [25] Taking into account the permit qualification matters, and for the reasons earlier stated, I am satisfied that Mr Buchan is a fit and proper person to hold an entry permit. The application by the Branch for an entry permit to be issued to Mr Buchan is granted. I see no reason to and so will not impose any conditions on the entry permit.

[2] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) [2024] FWC 1999, [4] citing Maritime Union of Australia [2014] FWCFB 1973, [23] and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522, [32]

[3] Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 at [35]- [36]

[4] Construction, Forestry and Maritime Employees Union [2024] FWC 388

[5] Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division - Sydney Branch [2025] FWC 1644

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