Fair Work Act 2009

s.512 - Right of entry

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

Application by CFMEU for issue of right of entry permit to Martyn Wyer - satisfied that fit and proper person - permit issued.

[1] On 16 October 2017, the Construction, Forestry, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch (CFMEU) 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 Martyn Wyer, who is employed by the CFMEU as a State Organiser.

[2] On 7 December 2017, a directions hearing was conducted by telephone. Ms L Charlson appeared for the CFMEU. The CFMEU was directed to file any statutory declarations, submissions and other documents it wished to rely on in support of its application, following which I would, absent any request or need for a hearing, decide the application in chambers 'on the papers'.

[3] The Australian Building and Construction Commissioner (ABCC) was advised by the Commission on 6 December 2017 of the directions hearing listed on 7 December 2017. The ABCC did not participate in the directions hearing or otherwise advise the Commission that it intended to make submissions in relation to this application pursuant to s.110 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) or otherwise.

[4] The CFMEU filed submissions on 11 December 2017. I have had regard to those submissions, together with the earlier statutory declaration made by Mr Wyer on 16 October 2017 and the declaration made by Mr Darren Greenfield, CFMEU New South Wales Divisional Branch Assistant State Secretary, on 16 October 2017, 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] 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 CFMEU [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."

[11] 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:

"[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.'"[8]

[12] 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]

[13] 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)."

[14] In Maritime Union of Australia v Fair Work Commission,[10] a Full Court of the Federal Court of Australia (North, Flick & Bromberg JJ) held that conditions may be imposed pursuant to s.515 of the Act to remedy or address deficiencies or reservations in respect to a proposed permit holder, which deficiencies or reservations could otherwise lead to the conclusion that the person was not "fit and proper".

[15] 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 Wyer.

Permit qualification matters - ss.513(1)(a)-(f)

[16] According to the declarations filed by the CFMEU in support of the application for the grant of an entry permit to Mr Wyer:

• (a) Mr Wyer has received appropriate training about the rights and responsibilities of a permit holder (s.513(1)(a) of the Act). Mr Wyer completed an approved right of entry training course in person with the CFMEU on 11 October 2017;

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

• (c) Mr Wyer 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, or fraud or dishonesty, or intentional use of violence against another person or intentional damage or destruction of property (s.513(1)(c) of the Act);

• (d) Mr Wyer, or any other person, has never been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by Mr Wyer (s.513(1)(d) of the Act);

• (e) Mr Wyer 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

• (f) Mr Wyer 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).

[17] I accept that the information set out in the previous paragraph, as disclosed in the declarations concerning these matters, is accurate and correct. Each of these permit qualification matters weighs in favour of a conclusion that Mr Wyer is a fit and proper person to hold an entry permit.

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

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

[19] The following matter was disclosed in the declarations of Mr Wyer and Mr Greenfield made on 16 October 2017:

"In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Ors NSD332/2016 [sic], an application was made by the then Director of the Fair Work Building Industry Inspectorate (now the Australian Building and Construction Commissioner) on 15 February 2016 against [Mr Wyer] and others. A declaration is sought pursuant to s 545(1) of the Fair Work Act 2009 that [Mr Wyer]:

• contravened s 340 and s 343 of the Fair Work Act 2009 by participating in a blockade on 14 February 2015 at the Barangaroo site;
• contravened s 340 and s 343 of the Fair Work Act 2009 by participating in a second blockade on 16 February 2015 at the Barangaroo site;

The Australian Building and Construction Commissioner seeks an Order pursuant to s 546(1) of the Fair Work Act 2009 for the imposition of pecuniary penalties in relation to each alleged contravention of the Act. The matter is currently before the Federal Circuit Court, with Manousaridis J presiding."

[20] In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Ors SYG332/2016 (Barangaroo proceedings), a defence was filed on behalf of Mr Wyer (the Fourteenth Respondent) on 13 October 2017. A copy of that defence was attached to the CFMEU's submissions dated 11 December 2017. Mr Wyer has not made any admissions in his defence to the contraventions alleged by the ABCC.

[21] The CFMEU submits that the allegations against Mr Wyer in the Barangaroo proceedings are untested and unproven and accordingly the Commission should give those allegations no weight in determining this application.[11] In support of its submission the CFMEU relies on two cases where the Commission has held that unproven allegations of misconduct should not be accorded weight in assessing the fitness and propriety of a prospective permit holder and are not otherwise relevant considerations.[12]

[22] I accept the CFMEU's submission that the allegations made against Mr Wyer in the Barangaroo proceedings are, as at the date of this decision, only untested allegations and no findings of any contravention have been made against him. Accordingly, I will not give them any weight in determining this application.

[23] On balance, having taken into account each of the permit qualification matters under s.513(1) of the Act, I am satisfied that Mr Wyer is a fit and proper person to hold the entry permit in respect of which an application has been made. Accordingly, I exercise the discretion conferred on me by s.512 of the Act in favour of issuing Mr Wyer with an entry permit.

[24] However, taking into account the seriousness of the allegations against Mr Wyer in the Barangaroo proceedings I have determined to impose a condition on Mr Wyer's permit pursuant to s.515 of the Act. The condition I impose is as follows:

"If any finding of a contravention of the Act is made or any penalty is imposed in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Ors SYG332/2016 in relation to Mr Wyer's conduct, then Mr Wyer is to notify the Fair Work Commission in writing within 2 weeks of the finding being made or the penalty being imposed."

[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] [2015] FCAFC 56

[11] CFMEU's submissions dated 11 December 2017 at [11]

[12] Application by Construction, Forestry, Mining and Energy Union-Construction and General Division, SA Divisional Branch [2016] FWC 161 at [34]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia- Electrical, Energy and Services Division- Queensland Divisional Branch [2015] FWC 4450.

Printed by authority of the Commonwealth Government Printer