The FWBI Act provides the Director of FWBC with the power to intervene in court proceedings and make submissions in matters before the Fair Work Commission. The Director will consider intervening or making submissions in relevant proceedings that may have an impact on the building industry or its participants.
The Director will use the power to intervene and make submissions as a means of improving standards of conduct in the industry as part of his function to promote a culture of lawful behaviour.
As at 30 June 2014, FWBC intervened in five matters and made submissions in eight matters. All of the submissions concerned permit applications in Victoria.
Table 2.23 lists interventions commenced in 2013-14, outlined by state, venue and category.
Submissions Made To the Fair Work Commission
S508 Inquiry – Fair Work Commission
Due to reports of extensive misuse of the right of entry provisions by the CFMEU and its officials, relating to four Lend Leases sites in Adelaide, the Fair Work Commission self-initiated a hearing under s508 of the FW Act to review the circumstances of entry practices. FWBC made submissions before the hearing.
Fair Work Commission issued a preliminary decision finding the CFMEU and its officials had misused rights of entry at the sites. This decision was appealed to the Full Bench of Fair Work Commission. The appeal was dismissed, finding there had been misuse of right of entry. The case was returned to the relevant senior presidential member (SDP O’Callaghan).
Orders imposing significant restrictions on CFMEU officials entering the specified site in South Australia were made.
Right of Entry Permits
The FW Act allows the Fair Work Commission to issue right of entry permits to union officials to enter workplaces for inspection and discussion purposes. The effect of a permit is to allow workplace entry when, in the absence of a permit, entry may be unlawful as a trespass on the property. Because of these special rights the FW Act requires the holder of a permit, among other things, to be a “fit and proper person”. Permits expire generally after three years and are subject to reapplication. The potential and real misuse of the permits system has caused FWBC to take a far more pro-active position than in previous years to make submissions to the Fair Work Commission on permit matters. FWBC makes submissions in all cases where individual or union conduct may bear on the assessment of a permit holder being qualified to hold a permit.
Table 2.23 details the eight submissions FWBC made to the Fair Work Commission in respect of permit applications.
|QLD||John Holland Pty Ltd & Anor v CFMEU & Ors||Federal Court||ss.343, 417 and 421 FW Act|
|VIC||Brett Curnow v Kane Constructions||State Magistrates’ Court Victoria||s.70(2)(a) of the OHS Act 2004 (VIC)|
|WA||John Holland v CFMEU & Ors||Federal Court||s.417 FW Act|
|NSW||Application/Notification by Lend Lease Building Pty Ltd||FWC||s.505 FW Act|
|SA||CFMEU v SDP O’Callaghan||FWC||ss.486, 487, 508 of the FW Act|
|VIC||Permit Application – Kane Pearson||FWC||s.512 FW Act|
|VIC||Permit Application – Peter Mooney||FWC||s.512 FW Act|
|VIC||Permit Application – Anthony Kong||FWC||s.512 FW Act|
|VIC||Permit Application – Andrew Temoho||FWC||s.512 FW Act|
|VIC||Permit Application – Joe Myles||FWC||s.512 FW Act|
|VIC||Permit application – Timothy Jarvis||FWC||s.512 FW Act|
|VIC||Permit Application – Joe Myles||FWC||ss.512, 513 FW Act|
|VIC||Permit Application – Kenneth Miller||FWC||s.512 FW Act|