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 a privilege and it is important that rules governing the use of Right of Entry permits are followed by relevant personnel.

In appropriate cases, the ABCC makes submissions to the Fair Work Commission in relation whether certain individuals are ‘fit and proper’ to hold Right of Entry permits.  The ABCC also makes submissions in relation to applications to revoke, suspend or impose conditions on an individual’s Right of Entry permit if concerns are raised regarding whether an individual has misused their permit or they have contravened Right of Entry obligations.

More information about Right of Entry can be found on the ABCC website, including sections on Rights and responsibilities when on site and the No Permit List.

8 August 2017 – CFMEU-SA (Gava) v Fair Work Commission

The Full Bench of the Fair Work Commission dismissed an appeal by the CFMEU against a decision to refuse a right of entry permit for Mark Gava.  On 8 March 2017 Senior Deputy President O’Callaghan rejected an application to issue a permit to Mr Gava, citing his previous contraventions of right of entry rules during an industrial dispute at the Flinders University construction site in Adelaide.  A Full Bench appeal was heard in Melbourne on 17 May 2017.  The ABCC argued the original decision should be upheld.

In its judgment, the Full Bench concluded that:

“In granting a permit to a person who is fit and proper, the Commission is required to have a certain level of satisfaction as to the evidence about an individual and their level of general integrity. Forensically, bearing in mind the seriousness of taking away a right of entry permit, the Commission needs to be satisfied that it is done appropriately in all of the circumstances. In all the circumstances of this case, we are not minded to grant permission to appeal on the basis of any of the grounds raised by the CFMEU.”

8 August 2017 - AMWU-Victorian Branch (Dodd)

The Fair Work Commission decided to issue a right of entry permit to Steve Dodd on the condition that he undertakes training in consultation with the ABCC.

On 11 April 2017, Mr Dodd was penalised by the Federal Court for his involvement in the unlawful industrial action at the Australian Paper Mill site in Victoria’s Latrobe Valley. (See ABCC media release.)  In that matter, Justice Jessup found a claim that a series of stoppages were related to safety, and therefore did not amount to unlawful industrial action, was “a mistaken one”.

Senior Deputy President Hamberger referred to Justice Jessup’s comments in his decision of 8 August 2017, finding that in relation to the Australian Paper dispute:

“ ‘ignorance of the law is no excuse’ and as an experienced union official he should have known better. However Mr Dodd indicated that faced with similar circumstances in the future he would seek legal advice … I am still concerned that he does not fully understand the interaction between industrial and occupational health and safety law.”

Senior Deputy President Hamberger imposed a condition on Mr Dodd’s permit which requires him to receive training on the interaction between occupational health and safety laws and the rules about taking industrial action.

3 July 2017 - CFMEU Queensland-NT branch (Kong)

On 12 April 2017, the CFMEU lodged an application with the Fair Work Commission for a new entry permit for Anthony Kong pursuant to section 512 of the Fair Work Act.  The ABCC made submissions opposing the issue of a right of entry permit.  On 3 July 2017, the CFMEU discontinued its application.

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