Right of Entry PermitsJames Hall and David Vale30 October 2015USYD Law School

IntroductionRight of entry governed by Part 3-4 of the Fair Work Act 2009Objects of Part 3-4 and Nature of PowersApplication for right of right of entry permit – Procedural MattersFit and Proper Person TestGeneral PrinciplesPermit Qualification Matters

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1. Objects of Act and Nature of PowersBalance

• The rights of trade unions to represent and recruit members at a workplace and investigate breaches of legislation, awards and

enterprise agreements.• The right of occupiers to enjoy possession of premises.

Permit Holders exercise significant and important powers • Granted statutory power to enter premises for the purposes of:

- Holding discussions with members and potential members;- Investigating suspected contraventions;- Permit is required to exercise State/Territory OHS Rights in certain

circumstances.• Significantly impinge upon rights of occupiers at common law – trespass. 4

Section 480 – Object of Part 3-4

Object of this PartThe object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate

suspected contraventions of: (i) this Act and fair work instruments; and (ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations;

and (c) the right of occupiers of premises and employers to go about their

business without undue inconvenience. 5

• “…Part 3-4 of the Fair Work Act fundamentally modifies common law rights.A person granted an entry permit is conferred extensive power. Entry permits

confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has

nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power.” (MUA v FWC (2015) 321

ALR 248 at [13]-[14])

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2. Application – Procedural MattersApplication made to the Fair Work Commission (FWC) pursuant to s. 512 of the Fair

Work Act 2009.Permits are issued to officials of trade unions (the Act uses the term “organisation”)• note the definition of “official” in s. 12 of the Act: employees and office holders (e.g. Branch Secretary, Branch President).

Application made by trade union (this includes Transitionally Recognised Associations).Permits are regularly issued to persons in their capacity as officials of both a

Transitionally Recognised Association (TRA) and the corresponding branch of federal organisation – joint employment by TRA and federal organisation (AWUEQ [2006] AIRC 427).

Form F42 – requires a member of the committee of management of trade union (e.g. Branch Secretary) and relevant official to make declaration regarding the permit qualification matters set out in s. 513(1) of the Act.

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Processing of Applications by FWCPermits issued by FWC – s. 512The Regulatory Compliance Branch (RCB) of the FWC processes right of entry

applications.Chris Enright, Director of RCB is charged with the responsibility of issuing right of

entry permits. Delegated the functions and powers of the FWC under Div 6 of Part 3-4 of the Act by

President pursuant to section 625(2)(g).Reflects role of Industrial Registrar under previous legislation. Other matters under Part 3-4 of the Act dealt with by tribunal arm of the FWC –

disputes (ss. 505, 505A), restricting rights (s. 508), suspension or revocation of permit (s. 510).

Approximately 1500 permit applications processed annually by FWC – 1487 permits issued, 3 refused in financial year 2014/2015.

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Routine v Non-Routine ApplicationsThe manner of processing of right of entry application is dependant upon whether application

is deemed to be routine or non-routine.Determined by Chris Enright in consultation with Vice President Watson as head of the

Registered Organisations Panel.Routine applications – generally when there is an absence of adverse matters with regard to

the relevant official – dealt with administratively - staff of RCB will check application with regard to the procedural requirements including whether a relevant matter has been disclosed in declarations– issued by Chris Enright as Delegate of the FWC – the vast majority of applications dealt with in this way.

Non-routine applications – generally when there are adverse matters pertaining to the relevant official or if Fair Work Building and Construction seeks to intervene – referred to Vice President Watson to be further allocated to a tribunal member to ultimately determine whether to issue permit.

Vast majority of applications dealt with as routine matters – from October 2014 to October 2015 50 applications dealt with as non-routine applications.

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Fair Work Building and ConstructionFair Work Building Industry Inspectorate.The General Manager of FWC must notify Director of FWBC of every right of entry

application lodged which involves a “building industry participant” or “building work” and the outcome of each such application – s. 74 of the Fair Work (Building Industry) Act 2012.• usually involves applications by CFMEU but can also include other unions such as

CEPU and AWU.• FWBC requests copy of application from FWC citing official’s name and the matter

number.The Director of FWBC may, by giving written notice to the General Manager of FWC,

make a submission in a right of entry application matter that involves a “building industry participant” or “building work” – s. 72 of Fair Work (Building Industry) Act 2012.

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3. Fit and Proper Person Test – s. 512

512 FWC may issue entry permits

The FWC may, on application by an organisation, issue a permit (an entry permit ) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.

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The Permit Qualification Matters – s. 513513 Considering application(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.

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“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” (Australian Broadcasting Tribunal v Bond (1990) 170 CLR

321 at 380 per Toohey and Gaudron JJ).

Meaning of “fit and proper person” – Contextual

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“…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” (MUA v FWC (2015) 321 ALR 248 at [17]).

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4. General Principles

Fit and proper person to hold the entry permit.Permit qualification matters - not confined to right of entry matters.Personal to official for whom permit is sought.Conditional permits.Consideration of and weight to be given to permit qualification matters.

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Fit and Proper Person to Hold the Entry Permit

Section 512 provides that the FWC must be satisfied that the official is a fit and proper person to hold the entry permit

In CEPU [2015] FWC 1522, Hatcher VP summarised the relevant principles in this regard at [32]:• The expression “fit and proper person” in s. 512, read in context, is to be applied by reference to

the suitability of the relevant official to hold an entry permit.• The permit qualification 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.

See also MUA v FWC (2015) 321 ALR 248; MUA [2014] FWCFB 1973. 16

Permit Qualification Matters – not confined to right of entry mattersSection 513(1) is not be read down so that only those permit qualification matters

which are relevant to the exercise of statutory right of entry powers are to be taken into account. In other words, the permit qualification matters are not confined only to matters that have arisen due to the exercise of statutory right of entry powers (MUA v FWC (2015) 321 ALR 248 at [18]- [25]; MUA [2014] FWCFB 1973 at [23] – [27]; CEPU v FWBC [2014] FWCFB 4397).

Examples – conviction for intentionally causing grievous bodily harm (NUW [2012] FWAD 9539), conviction for theft, intentionally or recklessly causing injury, unlawful assault, blackmail and common law assault (AMIEU –Vic Branch[2015] FWC 4147)

However, as noted above, the permit qualification matters must be taken into account for the specific purpose of determining whether the relevant official is a fit and proper person to hold the entry permit. An official cannot be assessed as not a fit and proper to hold the permit because of a permit qualification matter which does not affect his/her suitability to exercise statutory right of entry powers.

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Personal to official for whom permit is sought

CEPU [2015] FWC 1522, Hatcher VP:• A “fit and proper” standard, generally speaking, involves assessing the relevant

personal characteristics of the individual concerned in relation to the activities which satisfaction of the standard is required.• The permit qualification matters are all concerned with matters personal to the

official for whom the issue of an entry permit is sought.

Issue – history of contraventions of trade union to which the official is attached.

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Conditional Permits

515 Conditions on entry permit (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). (4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit. (5) To avoid doubt, a permit holder does not contravene an FWC order merely because

the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).

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In MUA v FWC (2015) 321 ALR 248 the Full Court of the Federal Court held that section 515(1) requires FWC to consider whether conditions should be imposed conjointly with a consideration of whether the official for whom the permit is sought is a fit and proper person to hold the entry permit pursuant to section 512 of the Act.

In other words, the permit qualification matters are to be considered in light of the power to impose a condition or conditions on an entry permit when it is issued.

Thus, section 515(1) allows FWC to fashion appropriate conditions which go towards satisfying the fit and proper person test set out in section 512 of the Act.

Contrary to previous Full Bench decisions of FWC – the power to impose a condition under section 515(1) arose only after FWC was firstly satisfied that the relevant official was a fit and proper person to hold the entry permit (E.g. MUA [2014] FWCFB 1973; CEPU v FWBC [2014] FWCFB 4397).

Previously - Two step sequential process – 1. Consider whether official is a fit and proper person to hold entry permit. If no, refuse to issue permit. If yes, 2. Consider whether any conditions should be imposed because of ongoing concern regarding conduct of official

Now - Single step process – Consider whether official is a fit and proper person to hold entry permit or whether official is a fit and proper person to hold entry permit with the imposition of appropriate conditions. 20

Consideration of and weight to be given to permit qualification mattersEach permit qualification matter must be taken into account – s. 513(1). Different

issue as to weight to be given to each matter and how this affects assessment of whether official is a fit and proper person to hold the entry permit.

CEPU [2015] FWC 1522, Hatcher VP:• The requirement to take the permit qualification matters into account means 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.• 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).

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5. Permit Qualification Matters

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Appropriate Training

(a) Whether the official has received appropriate training about the rights and responsibilities of a permit holder.

FWC considers this mandatory; Training package approved by FWC – ACTU or in-house training; Training must include assessment component; Official must have undertaken training at least since 1 January 2010; Training only relates to rights and responsibilities under Part 3-4 of the Act; Importance of official undertaking training – HSU – Victoria No. 1 Branch [2015]

FWC 3359 – officials found to have failed to complete training and made false declarations in applications that they had completed such training - entry permits revoked pursuant to s. 603 of the Act.

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Offence against industrial law

(b) Whether the official has ever been convicted of an offence against an industrial law.

“industrial law” defined in s. 12 of the Act – the Act, the Fair Work (Registered Organisations) Act 2009, a law of the Commonwealth, however designated, that regulates the relationships between employers and employees or State or Territory industrial law as defined in s. 26(2) of the Act – includes Fair Work (Building Industry) Act 2012, State OHS legislation (Dowling v Fairfax Media Publications Pty Ltd [2008] FCA 1470).

Note distinction between contravention of civil remedy provision and an offence – s. 549 of the Act.

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Offences involving entry, fraud or dishonesty, or violence or damage(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.

Note effect of s. 513(2) of the Act – spent conviction provisions of Division 3 of Part VIIC of the Crimes Act 1914 apply in relation to disclosure of information to, and taking into account of information by, FWC.

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Penalty under Act or any other industrial law(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.

Includes a penalty imposed on trade union as a result of conduct of official. Most common adverse permit qualification matter. Most typically involves contraventions of Part 3-4 of the Act and the Fair Work

(Building Industry) Act 2012.

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Revocation, suspension of, or conditions imposed on, permit(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;

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Other relevant matters

(g) Any other matters that the FWC considers relevant.In CEPU [2015] FWC 1522, Hatcher VP set out the scope of this permit qualification

matter [32]:• Relevance referred to in s. 513(1)(g) is relevance to the question of whether the

particular official is a fit and proper person to hold an entry permit, so that for 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 rights and privileges associated with the holding of an entry permit.

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Examples • Official has not engaged in any conduct required to be taken into account under

subsections 513(1)(b)-(f) for a significant period of time– “important if not critical consideration” (CEPU v FWBC [2014] FWCFB 4397);

• Official held leadership position with trade union when he/she committed contravention;

• Failure to disclose relevant matters in application – lack of due diligence;• Official has demonstrated an understanding of the need to comply with industrial

law;• Length of time the official has performed his/her role as official and has held entry

permits.

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History of contraventions by trade unionFWBC v CFMEU [2014] FWCFB 5947 (Kong)Appeal by FWBC against decision of Delegate to grant an entry permit to official of the CFMEU. The

relevant official was employed as an Organiser.The FWBC appealed on the ground that the Delegate failed to take into account the history of

contraventions of various pieces of industrial legislation by the CFMEU as a relevant matter under s. 513(1)(g) - the CFMEU’s history of contraventions was highly relevant and should have been taken into account by the Delegate because it went to the official’s susceptibility to comply with directions from his employer to engage in unlawful conduct.

The Full Bench held that:“[26] We do not consider that the Director has demonstrated any error in the process by which the

Delegate determined that the CMFEU’s history of contraventions was not relevant to his determination as to whether Mr Kong was a fit and proper person to hold an entry permit. It was reasonably open to the Delegate to conclude, as he did, that there was nothing [in the material provided to the Delegate at first instance] which bore upon Mr Kong’s “status and attributes.” 30

However, the Full Bench went on to observe that:“[27] That is not to say that past contraventions of industrial or other relevant

laws by an organisation can never be relevant to the consideration of an official’s fitness or propriety to hold an entry permit where those contraventions did not involve any direct contravening conduct on the part

of that official. If, for example, the facts of a particular contravention or contraventions supported an inference that an official with management responsibility in an organisation omitted to take reasonable steps to ensure that others under his or her control failed to comply with the law, or encouraged or tolerated a general culture of non-compliance with the law, then conceivably that might be considered to be a relevant matter under s.513(1)(g)…”

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FWBC v CFMEU [2015] FWCFB 6035Appeal by FWBC against decision of Deputy President to grant an entry permit to official of the CFMEU.

The relevant official was the Branch Secretary of a branch whose officials had been found to have contravened various pieces of industrial legislation resulting in the imposition of substantial penalties upon the CFMEU.

Key ground of appeal – the Deputy President misapplied the scope and effect of Kong – permit should not have been granted in circumstances where the official held the office of Branch Secretary who, under the rules of the CFMEU, had particular managerial responsibility for the branch during the time in which the contraventions occurred – the Deputy President should have implied that the official was responsible for the conduct giving rise to the penalties involving contraventions by the CFMEU.

The Full Bench held that the submissions of the FWBC represented a misreading of the observations of the Full Bench in Kong. The suggestions of the Full Bench referred to in Kong must be based on evidence rather than speculation or assumption. There were no facts in evidence that supported an inference that the official omitted to take reasonable steps to ensure that others under his control failed to comply with the law, or encouraged or directed or tolerated a general culture of non-compliance with the law:

“[37] …there was no evidence…to support a finding that the CFMEU’s history of contraventions said anything about the official’s personal conduct, character or reputation, either as relevant to the exercise of rights of entry under the Act, or at all.” 32

There is limited scope to take into account the history of contraventions of the

organisation to which the official is attached as another relevant matter for the purposes of s. 513(1)(g) of the Act;

Greater scope to take into account if the relevant official holds an office with some managerial responsibility within the organisation;

Can potentially give rise to an inference that an official with managerial responsibility omitted to take steps to ensure that others under his or her control failed to comply with the law or encouraged or tolerated non-compliance or that an official is susceptible to comply with a direction from his or her employing organisation to engage in unlawful conduct;

However, such an inference cannot arise as a result of an assumption or merely implied but must be based on some form of evidence.

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