Erin  McCarthy,  partner,  and  Eliza  Hampton,  lawyer,  review  recent  Fair Work Commission decisions which address the duty of disclosure, the relevance of past misconduct, and the ability to grant conditional entry, when the Commission is presented with an application from union officials for a right of entry permit.

The Fair Work Act 2009 (Cth) (the Act) allows union officials to enter workplaces for approved purposes. In order to exercise a right of entry for these identified purposes under the Act, the union official must be entitled to represent the workers at the workplace, and must hold a valid entry permit.

A right of entry permit may be granted under section 512 of the Act if the Commission is satisfied that the official seeking the permit is a “fit and proper person” to hold the entry permit. In making this assessment, the Commission is required by the Act to consider,  among other matters, whether the official has had training about the rights and responsibilities of permit holders, whether the official has ever been convicted of an offence against industrial law, whether the official has committed any offence relating to entry onto a premises, fraud or dishonesty or intentional use of violence, whether the official has ever been  ordered to pay a penalty under the Act, and whether any permit issued under the Act had been suspended or revoked.

Duty of disclosure

In order for the Commission to properly assess whether an entry permit may be granted, the union officials must disclose any previous offences. In the recent case of CFMEU-Construction and General Division, WA Divisional Branch; The CFMEU [2015] FWC 3057, the Commission ordered a CFMEU official to amend his application for an entry permit to include a declaration of four active court proceedings against the official which were currently on foot for alleged breaches of the Act.

Vice President Watson said it was appropriate to describe the requirement  to disclose such material as a duty, and these proceedings were not insignificant or irrelevant considerations when determining whether the official was a “fit and proper person” to hold an entry permit.

Relevance of past misconduct

In CFMEU-Construction and General Division, Queensland Northern Territory Divisional Branch [2015] FWC 2158, the Commission was required to consider whether Michael Ravbar of the CFMEU, was a fit and proper person to hold an entry permit.

Fair Work Building and Construction argued against the award of a permit to Mr Ravbar. It argued that, as a branch leader and as a person in a managerial position, he had done nothing to control the behaviour of his officials on previous occasions, which included 96 contraventions of workplace standards.

Deputy President Lawrence accepted that Mr Ravbar was an official with management responsibility, but held that there was no specific evidence to link the previous breaches of industrial laws by the other CFMEU officials to the personal characteristics of Mr Ravbar, nor was there any link between these previous breaches and Mr Ravbar’s suitability to hold a right of entry permit. DP Lawrence held that Mr Ravbar was a fit and proper person to hold a right of entry permit given his training on right of entry obligations, his long-standing (relatively) clean record, and lack of a suspension or revocation of earlier permits granted.

The Commission was again required to consider the suitability of a union official, Tony Mavromatis, to hold a permit in AMWU-Victorian Branch [2015] FWC 1843.