Fair Work Act 2009

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

Construction, Forestry and Maritime Employees Union - Construction and General Division - Queensland Northern Territory Divisional Branch

Application for an extension of a right of entry permit for Joshua Thompson and Dylan Howard - Extension of period of operation of existing permits pending determination of applications for renewal of the entry permits held by Mr Thompson and Mr Howard.

• [1] On 31 January 2025, the Construction, Forestry and Maritime Employees Union (the CFMEU) made two applications under s 512 of the Fair Work Act 2009 (Cth) (the Act) for new entry permits to be issued to Joshua John Edward Thompson and Dylan Patrick Howard. Mr Thompson and Mr Howard both hold entry permits that are due to expire on 1 March 2025. The CFMEU separately applied for orders under s 516(2) of the Act extending the expiry date of the existing entry permits held by Mr Thompson and Mr Howard until the Commission has determined the applications for new permits.

• [2] Section 512 of the Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a fit and proper person to hold an entry permit. Section 516 provides as follows:

(1) Unless it is revoked, an entry permit expires at the earlier of the following times:

(a) at the end of the period of 3 years beginning on the day it is issued, or that period as extended under subsection (2);

(b) when the permit holder ceases to be an official of the organisation that applied for the permit.

(2) The FWC may extend the period of 3 years referred to in paragraph (1)(a) by a specified period if:

(a) the organisation that applied for the permit (the old permit) has applied for another entry permit for the permit holder; and

(b) the application was made at least 1 month before the old permit would otherwise have expired under that paragraph; and

(c) the FWC is satisfied that the old permit is likely to expire before the FWC determines the application.

(3) The period specified must not be longer than the period that the FWC considers necessary for it to determine the application.

(4) The FWC must not extend the period under subsection (2) if:

(a) the FWC has requested or required the organisation or permit holder to provide copies of records or documents, or to provide any other information, in relation to the application; and

(b) the organisation or permit holder has not complied with the request or requirement; and

(c) the FWC is satisfied that the organisation or permit holder does not have a reasonable excuse.

• [3] As such, in accordance with s 516(1)(a), an entry permit expires at the end of the period of 3 years beginning on the day it is issued unless that period is extended under s 516(2). The Commission may extend the period of an existing entry permit if the circumstances in s 516(2)(a), (b) and (c) are met unless the Commission is prohibited from doing so by s 516(4). Even if the requirements in s 516(2)(a), (b) and (c) are satisfied, the Commission retains a discretion as to whether to extend the period of an entry permit in the circumstances of a particular case.[1]

• [4] The requirements in s 516(2)(a), (b) and (c) are met in relation to Mr Thompson and Mr Howard. The CFMEU has applied for new entry permits for Mr Thompson and Mr Howard and those applications were made more than one month before their existing permits are due to expire as required by s 516(2)(a) and (b). For the reasons set out below, I am satisfied that the existing entry permits held by Mr Thompson and Mr Howard are likely to expire before the Commission determines the applications for new permits for the purposes of s 516(2)(c). Section 516(4) does not apply. The Commission has not, at this stage, requested or required any records, documents or information be provided.

• [5] In relation to s 516(2)(c), the applications for new permits disclose that Mr Thompson and Mr Howard are respondents to 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. At present, the Commission has little information before it in relation to the nature of the proceedings beyond that the Federal Court proceedings concern alleged contraventions of s 500 of the Act involving some persons at least allegedly acting in an improper manner in exercising, or seeking to exercise, entry rights under Part 3-4 of the Act.[2] The proceedings before the Queensland Industrial Relations Commission involved a dispute about the exercise, or purported exercise, of rights of entry under s 142(4)(b) of the Work Health and Safety Act 2011 (Qld).[3]

• [6] Given the nature of the proceedings before the Federal Court, I consider that it is appropriate for the Commission to receive evidence and submissions from the CFMEU as to whether the existence of those proceedings, and any allegations made in relation to Mr Thompson and Mr Howard, are relevant to whether the Commission can be satisfied those individuals are fit and proper persons to hold an entry permit. I also consider it is appropriate to invite the Fair Work Ombudsman to make submissions to the Commission in relation to the applications concerning Mr Thompson and Mr Howard. In those circumstances, the applications for new permits will not be determined before the existing permits expire on 1 March 2025.

• [7] There is no other material before the Commission which would suggest that it is not appropriate for the Commission to extend the period of operation of the existing entry permits of Mr Thompson and Mr Howard. I note that the Federal Court proceedings and the proceedings in the Queensland Industrial Relations Commission were commenced in around May 2024. To my knowledge, no action was taken at that time or subsequently to seek to suspend the entry permits held by Mr Thompson or Mr Howard. There is no information before the Commission that any further issues or concerns have arisen in relation to the exercise of rights of entry by Mr Thompson or Mr Howard since that time.

• [8] Accordingly, I grant extensions to the expiry date of the entry permits held by Mr Thompson and Mr Howard until 2 May 2025 or such earlier time as the Commission is able to determine the applications for new permits. That should allow sufficient time for the applications for new permits to be determined.

• [9] Two orders have been issued giving effect to this decision in PR784630 and PR784631.

[1] Construction, Forestry and Maritime Employees Union [2024] FWC 2671 at [8].

[2] BMD Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union [2024] FCA 528.

[3] BMD Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union [2024] QIRC 105.

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