September - October 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.

19 September 2016 – Alex Tadic, CFMEU Victoria

On 31 May 2016, Vice President Watson of the Fair Work Commission refused an application for a Federal Right of Entry permit for Victorian CFMEU official Alex Tadic. The CFMEU appealed the decision of VP Watson on 11 grounds including that the Vice President acted on wrong principle by taking into account material that was not relevant to Mr Tadic’s application, including whether Mr Tadic had personally paid civil penalties imposed against him and whether the CFMEU’s history of contraventions of workplace laws should be considered when determining if Mr Tadic is a fit and proper person to hold an entry permit.

On 19 September 2016 the Full Bench of the Fair Work Commission handed down a majority decision (2-1) upholding the appeal and quashing the Vice President’s original decision. The Full Bench rejected all of the CFMEU’s grounds for appeal except for one, being that a ‘higher bar than normal’ should not be set for an individual based on the compliance history of the organisation he or she belongs to.

In its decision, the Full Bench said “We agree that it is highly relevant to consider an applicant’s attitude and track record relating to compliance with the relevant legal obligations, however, we consider it erroneous to elevate a context of past contraventions of industrial or other relevant laws by an organisation so that it automatically operates to impose a ‘higher bar than normal’ for an individual to clear in order to satisfy the Commission that he or she is a fit and proper person to hold an entry permit, regardless of his or her past behaviour.”

The application has now been remitted to Vice President Watson for rehearing and determination.

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