July - August 2016 Industry Update
Summary of recent Right of Entry Permit activity
Right of Entry permits allow union officials to enter building worksites under certain circumstances. Holding a permit is deemed a privilege and it is important that the rules governing the use of Right of Entry permits are followed by relevant personnel.
FWBC often makes submissions to the Fair Work Commission to refuse, revoke, suspend or amend an individual’s Right of Entry permit if concerns are raised regarding whether an individual meets the ‘fit and proper person’ criteria for holding a lawful permit. FWBC’s website includes a list of current union officials who do not hold a valid federal entry permit as well as a list of current union officials who have had conditions imposed on their permits.
A summary of finalised permit activity undertaken by FWBC since 1 July 2016 is below.
5 July 2016 – Michael Haire (CEPU Queensland) and Michael Robinson (CFMEU Queensland)
The FWC granted an application by FWBC that a condition be imposed on the permits of Mr Haire and Mr Robinson. The effect of the condition is that the permits be suspended for a period of three months, but that suspension be suspended for 12 months and only activated if the permit holder is ordered to pay a pecuniary penalty for conduct which gives rise to a contravention under an industrial relations law within the suspension period.
The condition was imposed by consent of the parties as per an agreement reached at the mediation of the Darwin Park and Ride matter, in which Mr Haire and Mr Robinson were penalised $6,700 each by the Federal Court for organising unlawful industrial action.
15 July 2016 – Gerard Benstead (CFMEU Victoria)
The FWC agreed with FWBC’s submission that Mr Benstead was not a fit and proper person to hold an unconditional entry permit. The FWC took into account Mr Benstead’s previous contraventions of the Fair Work Act which “were all serious and demonstrated a readiness to engage in unlawful conduct”. Vice President Hatcher said he did “not have confidence that [Mr Benstead] recognises and takes seriously the need to comply with the right of entry obligations contained in Part 3-4 of the FW Act” and could not think of any conditions which would address these concerns.
Vice President Hatcher provided the CFMEU and FWBC with an opportunity to make submissions on any proposed conditions on an entry permit to be issued to Mr Benstead (which would address Vice President Hatcher’s concerns). However, the CFMEU discontinued the permit application on 3 August 2016.
15 July 2016 – Robert Graauwmans (CFMEU Victoria)
The FWC agreed with FWBC’s submission that Mr Graauwmans was not a fit and proper person to hold an unconditional entry permit. In its submission, FWBC pointed to a number of factors including Mr Graauwmans’ previous improper conduct for which he had not expressed any remorse.
Vice President Hatcher considered that Mr Graauwmans could be a fit and proper person to hold an entry permit subject to conditions and invited FWBC and the CFMEU to make further submissions on this point. However, the CFMEU did not make submissions and discontinued the application on 25 August 2016.
19 August 2016 – Michael Davis (CFMEU Victoria)
The Full Bench of the FWC refused to grant the CFMEU permission to appeal a decision of Senior Deputy President Richards refusing an application by the CFMEU for an entry permit to be issued to one of its officials, Michael Davis. In his decision on 30 March 2016, SDP Richards found that Mr Davis’ prior conduct exhibited a willingness to act in a manner that had no regard for lawful responsibilities and there was no evidence of remorse or contrition by Mr Davis for his conduct. As such SDP Richards decided Mr Davis was not a fit and proper person to hold a permit.
The prior conduct referred to included Mr Davis disrupting work on a Brisbane construction site in 2012 in an effort to coerce the head contractor to sign a union agreement, for which he was penalised $20,000.
Permission to appeal was denied for a number of reasons, including that the CFMEU did not propose any possible permit conditions that might address the FWC’s concerns about Mr Davis’ fitness and propriety to hold an entry permit.