Fair Work Act 2009

s.512 - Right of entry

Construction, Forestry, Maritime, Mining and Energy Union

Application for a right of entry permit for Mr Nigel Davies

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application under s 512 of the Fair Work Act 2009 (Act) for the issuance of a right of entry permit to Mr Nigel Davies, the national assistant secretary of the union's Construction and General division.

[2] The Australian Building and Construction Commission (ABCC) was informed of the application in respect of an entry permit for Mr Davies. The Commission did not receive any notification from the ABCC of an intention by it to intervene or lodge submissions in respect of this application pursuant to s 110 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) or otherwise.

[3] The CFMMEU filed a written submission in support of its application. I consider it appropriate to determine the application on the papers.

[4] 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 the entry permit. The Commission's discretion to issue an entry permit must be exercised having regard to the 'permit qualification matters' set out in s 513(1) of the 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:

(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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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."

[5] The declarations filed by the CFMMEU in support of the application for the grant of an entry permit to Mr Davies attested to the following matters:

• Mr Davies has never been convicted of an offence against an industrial law (s 513(1)(b));

• Mr Davies has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, fraud, dishonesty, intentional use of violence against another person or intentional damage or destruction of property (s 513(1)(c));

• Mr Davies has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s 513(1)(e)); and

• Mr Davies has not had a State or Territory entry permit cancelled, suspended or made subject to conditions, nor has he been disqualified under State or Territory laws from exercising or applying for an entry permit (s 513(1)(f)).

[6] I accept the information in the declarations concerning these matters. Each of these permit qualification matters weighs in favour of a conclusion that Mr Davies is a fit and proper person to hold an entry permit, and that a permit should be issued to him.

[7] The CFMMEU submitted a certificate of completion issued by the ACTU Australian Trade Union Institute Online, certifying that on 19 February 2020 Mr Davies completed the course 'Federal Right of Entry', which appears to me to be appropriate training for the purpose of s 513(1)(a).

[8] The declarations make disclosures in relation to the permit qualification matter referred to in s 513(1)(d). They state that in 2018 Mr Davies was found to have contravened sections 497 and 500 of the Act (see Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case),[1] and that he was subsequently ordered to pay penalties under the Act in relation to those contraventions (see Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Bendigo Theatre Case) (No 2).[2]

[9] The contraventions and penalties related to events that took place on two days in July 2014 when Mr Davies responded to a request for assistance from a health and safety representative at a Bendigo construction site. Mr Davies entered the site and met with the health and safety representative without providing notice to the occupier or showing his permit.

[10] The union's submissions noted that, following the Court's imposition of penalties on Mr Davies, the Commission considered whether it was required to suspend or revoke Mr Davies' entry permit under s 510(1) of the Act. In a decision dated 27 March 2019,[3] I concluded, based on the evidence that had been put before the Commission, that Mr Davies had believed in July 2014 that he was not legally required to give notice or show his entry permit to the occupier in connection with the entries to the Bendigo site. I concluded that Mr Davies' understanding of the legal position was reasonable at the time, and only later revealed by a decision of the Full Federal Court to be wrong. I considered that, having regard to all of the circumstances, it would be unreasonable to suspend or revoke Mr Davies' permit. Section 510(2) was therefore engaged, and the Commission was not required to revoke or suspend Mr Davies' permit.

[11] The union relies on the conclusions in my earlier decision in support of its present application. I take these matters into account in connection with my consideration of the permit qualification matters in ss 513(1)(d) and 513(1)(g).

[12] In the present case, the permit qualification matters in s 513(1)(a), (b), (c), (e) and (f) weigh in favour of granting the application. As to the permit qualification matter in s 513(1)(d), the fact that Mr Davies was ordered to pay a penalty under the Act weighs against the granting of a permit, however this matter is moderated by the considerations referred to in my earlier decision. In all the circumstances, I am satisfied that Mr Davies is a fit and proper person to hold an entry permit.

[13] I therefore exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Davies with an entry permit. The application is granted and an entry permit will be issued to Mr Davies separately.

[1] [2018] FCA 122

[2] [2018] FCA 1211

[3] [2020] FWC 2022

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