Fair Work Act 2009

s.512 - Right of entry

Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch

Application by CFMMEU for right of entry permit - Jesse Eric Strand.

[1] On 7 June 2018, the Construction, Forestry, Maritime, Mining and Energy Union -The Maritime Union of Australia Division (CFMMEU) made an application to the Fair Work Commission (Commission) under s 512 of the Fair Work Act 2009 (Cth) (Act) for an entry permit for Mr Jesse Eric Strand, who is a State Organiser for the New South Wales Branch of the CFMMEU.

[2] The Australian Building and Construction Commission (ABCC) was informed of the application in respect of an entry permit for Mr Strand. The Commission has not received 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] On 6 July 2018, a directions hearing was conducted by telephone. Ms Sherri Hayward appeared for the CFMMEU. The CFMMEU was directed to file any statutory declarations, submissions and other documents it wished to rely on in support of its application by 4pm on 20 July 2018. The CFMMEU was informed that, absent any request or need for a hearing, I would decide the application in chambers 'on the papers'.

[4] On 18 July 2018, the CFMMEU filed submissions, a statutory declaration made by Mr Strand on 17 July 2018 and a statutory declaration made by Ms Rita Georgette Stella Mallia on 12 July 2018. I have had regard to those submissions and statutory declarations, together with the earlier declaration made by Mr Strand on 7 June 2018 and the declaration made by Mr Darren Greenfield, New South Wales Divisional Branch State Secretary of the CFMMEU, on 7 June 2018, in deciding the present application 'on the papers'.

[5] Part 3-4 of the Act provides a framework within which officials of organisations may gain access to premises of employers and occupiers to represent members of organisations in the workplace, to hold discussions with members and potential members, and to investigate suspected contraventions of the Act, fair work instruments and State or Territory occupational health and safety laws.

[6] The object of Part 3-4 of the Act is to establish a framework that balances:

• the right of organisations to represent their members, hold discussions with potential members and investigate suspected contraventions of relevant laws and instruments;

• the right of employees to receive information and representation; and

• the right of occupiers of premises and employers to go about their business without undue inconvenience.[1]

[7] Part 3-4 of the Act confers upon a permit holder a statutory right to enter premises owned or controlled by the occupier or employer that diminishes the common law rights of the occupier or employer.[2] The rights conferred, however, are not "untrammelled" and are subject to both express and implied constraints.[3] Accordingly, the right of entry scheme established by Part 3-4 of the Act should not be construed as giving any greater right than which is necessary to achieve the express or implied statutory purpose of the scheme.[4]

[8] 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 whether or not to issue an entry permit is not conferred in general, unqualified terms. The discretion must be exercised having regard to the "permit qualification matters" set out in s 513(1) of the Act and in a way that is not arbitrary, capricious or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose.[5]

[9] Section 513 of the Act sets out the permit qualification matters 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.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them."

[10] Section 515 of the Act allows the Commission to impose conditions on entry permits. It relevantly provides as follows:

(1) The FWC may impose conditions on an entry permit when it is issued.

(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.

(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part)."

[11] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia,[6] Hatcher VP set out the following principles relevant to the interpretation and application of ss. 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."

[12] In Maritime Union of Australia v Fair Work Commission (MUA v FWC)[7], a Full Court of the Federal Court of Australia observed the following in relation to the phrase a fit and proper person:[8]

"[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.'"

[13] In MUA v FWC, the Full Court ultimately concluded as follows:

"[42] When deciding whether to issue an entry permit pursuant to s 512 of the Fair Work Act, those considerations relevant to the exercise of the power are not confined (for example) to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the decision-maker - at least initially. The prospect remains for judicial review founded upon (for example) alleged 'unreasonableness'."[9]

[14] I will now take into account all of the permit qualification matters specified in s 513(1) of the Act in relation to the application for an entry permit to Mr Strand.

Permit qualification matters - ss 513(1)(a), (b) and (d)-(f)

[15] According to the declaration made by Mr Strand on 7 June 2018:

• (a) Mr Strand has received appropriate training about the rights and responsibilities of a permit holder (s 513(1)(a) of the Act);

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

• (c) Mr Strand has never been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by him nor has any other person been ordered to pay a penalty in respect of such action (s 513(1)(d) of the Act);

• (d) Mr Strand 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) of the Act); and

• (e) Mr Strand has not had an entry permit under State or Territory industrial or occupational health and safety laws which has been cancelled, suspended or been made subject to conditions, nor has he been disqualified under such laws from exercising or applying for an entry permit (s 513(1)(f) of the Act).

[16] I accept the information disclosed in the declaration made by Mr Strand on 7 June 2018 concerning these matters. The permit qualifications matters specified in ss 513(1)(a), (b) and (d) of the Act weigh in favour of a conclusion that Mr Strand is a fit and proper person to hold an entry permit. The permit qualifications matters specified in ss 513(1)(e) and (f) of the Act are neutral considerations in deciding whether Mr Strand is a fit and proper person to hold an entry permit, as Mr Strand has never been issued an entry permit under (a) Part 3-4 of the Act (or a similar law of the Commonwealth) or (b) State or Territory industrial or occupational health and safety laws.

Permit qualification matter - s 513(1)(c)

[17] Pursuant to s 513(1)(c) of the Act, in deciding whether Mr Strand is a fit and proper person I must take into account whether Mr Strand has ever 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.

[18] Mr Strand has declared that on 1 May 2014, he was convicted of two counts of common assault.[10] Mr Strand pleaded guilty to the offences and was given an 8 month suspended sentence for each offence (16 months in total) and ordered to pay a fine of $3,000.00.[11] Mr Strand gave the following evidence in relation to the night of the offences:[12]

"On the night of the incident I had been out drinking with some friends. There was an argument with another group as we were leaving the venue and one of those men spat on my friend's sister. I followed after them to confront them. When I caught up with them, there was a scuffle, which resulted in me punching two of the males from the other group."

[19] Mr Strand declared that he voluntarily participated in a victim-offender type program whereby he and his family discussed the effect of his actions on himself, the victim, his family and the community.[13]

[20] Mr Strand says that he is truly remorseful for his actions and that he has changed his life for the better, really concentrating on his work and home life over the last two years.[14] He says that he has realised that he had an issue with alcohol, sought counselling to discuss his drinking and has decided to stop drinking excessively.[15] Mr Strand annexed to his statutory declaration dated 17 July 2018 two references, which support his evidence that he has changed his life for the better.

[21] The CFMMEU submits that given Mr Strand's honesty, actions, contrition and remorse, the convictions ought to be accorded little weight on the Commission's assessment of Mr Strand's character as a fit and proper person to hold an entry permit.[16]

[22] While convictions of offences involving intentional use of violence against another person weigh against a conclusion that Mr Strand is a fit and proper person to hold an entry permit, I am satisfied that the contrition that Mr Strand has shown, together with the changes made to his life, diminish (but do not extinguish) the adverse weight that I give to those matters.

Permit qualification matter - s 513(1)(g)

[23] Pursuant to s 513(1)(g) of the Act, in deciding whether Mr Strand is a fit and proper person I must take into account any other matters that the Commission considers relevant.

[24] The following matter was disclosed in the declarations of Mr Strand and Mr Greenfield made on 7 June 2018:[17]

"On 24 August 2016, I was convicted of using offensive language in a public place, behaving in an offensive manner in a public place and resisting an officer in the execution of their duty. The incident in question took place at Coogee Bay Hotel. I was out drinking with one of my friends and he was ejected from the venue by the police. I left with him. As we walked out of the venue, my friend was loud and yelling and screaming. I was trying to lead him away from the venue and the police and tried to calm him down.

We walked down the road to the Oportos. The police had been following us. My friend started yelling and screaming at the police so they tried to arrest him. My friend had recently had surgery on his hand and his hand was in a cast. I was worried that between him and the police they would damage arm further. I asked the police to watch his arm and made my way towards them. One of the officers grabbed me saying that I was hindering them in their duty and that I was under arrest. I held my hands out for them to cuff me but they put me on the ground instead."

[25] Mr Strand pleaded guilty to using offensive language in a public place, behaving in an offensive manner in a public place and resisting an officer in the execution of their duty. He received a 12 month good behaviour bond and was ordered to pay a fine of $150 with convictions recorded against his name. Mr Strand gave evidence that he complied with the good behaviour bond and was not involved in any other incidents during that time.[18]

[26] The CFMMEU submits that the May 2014 and August 2016 incidents represent lapses in judgement on Mr Strand's behalf. The CFMMEU points to the fact that Mr Strand pleaded guilty to all offences in arguing that he has accepted that his behaviour was wrong and inappropriate.[19] The CFMMEU also contends that Mr Strand has been honest and forthright in bringing these matters to the Commission's attention.[20] The CFMMEU submits that given Mr Strand's honesty, contrition and remorse, the events of August 2016 ought to have no impact on the Commission's assessment of Mr Strand's character as a fit and proper person to hold an entry permit.[21]

[27] I accept the CFMMEU's submission that Mr Strand's 24 August 2016 convictions represent lapses in judgement on Mr Strand's part, but I do not accept that they should not be given any weight in my assessment of whether Mr Strand is a fit and proper person to hold an entry permit. As a permit holder, Mr Strand will have important rights and obligations under the Act; he will need to use his judgement on a regular basis in exercising those rights and complying with those obligations. In my view, Mr Strand's 24 August 2016 convictions demonstrate a lack of sound judgement. In the result, I place some adverse weight on the 24 August 2016 convictions disclosed by Mr Strand in relation to my assessment of whether he is a fit and proper person to hold an entry permit, but such weight is moderated by reason of the fact that the convictions are for less serious offences than the category of offences referred to in s 513(1)(c) of the Act, Mr Strand has shown contrition for his actions, and Mr Strand has made positive changes to his life.

[28] Ultimately, the assessment to be made is not a punitive one aimed at continuing to punish Mr Strand for his past wrongdoing. I accept Mr Strand's evidence that he has changed his life for the better and that his family responsibilities are strong motivators for him to keep stable employment and comply with his obligations under Part 3-4 of the Act.

[29] In my opinion, the permit qualification matters which weigh against a finding that Mr Strand is a fit and proper person to hold an entry permit are outweighed by those permit qualification matters which support such a conclusion. Accordingly, and taking into account all the permit qualification matters, I am satisfied that Mr Strand is a fit and proper person to hold an entry permit.

[30] I therefore exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Strand with an entry permit.

[1] Section 480 of the Act

[2] Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85; (2012) 203 FCR 389 at 405 [57] per Flick J

[4] Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481 - 1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403; and Darlaston v Parker and Others [2010] FCA 771; (2010) 189 FCR 1 at 13 [44]

[5] Construction, Forestry, Mining and Energy Union v Fair Work Commission [2017] FWCFB 4141

[6] [2015] FWC 1522

[7] [2015] FCAFC 56

[10] Statutory declaration of Jesse Eric Strand dated 17 July 2018 at [4]

[16] CFMMEU's written submissions dated 18 July 2018 at [25]

[17] Statutory declaration of Jesse Eric Strand dated 17 July 2018 at [7]-[8]

[19] CFMMEU's written submissions dated 18 July 2018 at [31]

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