Significant submissions and applications – Fair Work Commission

Applications to the Fair Work Commission (FWC) for right of entry permits

Right of entry permits are granted by the FWC where an applicant is able to satisfy the FWC that they meet the range of statutory requirements under the FW Act to be granted a permit. A permit is an important instrument, as it allows entry to workplaces for inspection and discussions that would not otherwise be permitted without the occupier's consent. Permit holders must conduct themselves appropriately in the workplace and conscientiously meet FW Act requirements.

Against this background, FWBC has maintained a focus on reviewing permit applications and making submissions to the FWC. FWBC scrutinises all permit applications to ensure full disclosure, as required under the FW Act. Where the agency believes this has not occurred, or further information should be provided to the FWC, a submission will be made.

FWBC aims to ensure that the FWC is aware of all relevant facts and that submissions on applicable legal principles are made to ensure that permit holders are properly entitled to have, or retain, a right of entry permit. Contested matters raised by FWBC are considered by a Presidential Member of the FWC.

The FWC notifies FWBC when an application for a new permit or permit renewal is received from a union official.

Fair Work Commission (FWC) proceedings to suspend or revoke permits following right of entry penalty matters

Section 510 of the FW Act provides that, where a permit holder has been ordered to pay a civil penalty for a contravention of the Right of Entry Part of the FW Act, FWC must revoke or suspend their right of entry permit, unless it is harsh or unreasonable to do so. Generally, FWBC will make submissions to the FWC about a union official's right of entry permit if civil penalties are imposed by the Court against the official for a breach of the Right of Entry Part of the FW Act.

Fair Work Building & Construction v Scott Vink [2016] [FWC] 2512

A contravention of the Right of Entry provisions of the FW Act requires the FWC to suspend or revoke a permit holder's right of entry permit and ban the issue of a further permit for a period of not fewer than three months. FWBC advised the FWC of the court's findings in the Vink matter and made submissions for revocation and a substantial ban period. On 20 April 2016 the FWC revoked Vink's permit and banned him from obtaining a new permit for two years.

The FWC decision stated:

The current Right of Entry Permit was misused in an act of deception in order to achieve entry to the construction site for an ulterior purpose. Mr Vink entered the site for the ulterior purpose, which was to demonstrate a particular industrial objective.

The decision went on to note:

The capacity to maintain civility is an important attribute in relation to achieving the necessary balance between representational rights and the rights of occupiers of premises and employers under the Part.