RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application by Construction, Forestry, Mining and Energy Union-Construction and General Division, SA Divisional Branch (CFMEU) for issue of right of entry permit to its official, Mr Mark Gava – Mr Gava held right of entry permit from 2001 – last entry permit expired on 28 November 2016 – permit returned to Commission two days beyond time limit allocated for it to be returned – cases involving Mr Gava considered, including those involving penalties imposed upon Mr Gava, CFMEU and other officials in the Liability and Penalty Decisions in 2014 – appeal against decisions subsequently lodged – Australian Building and Construction Commissioner (ABCC) contended that application be stayed pending determination of appeal, be considered with appeal or that entry permit should not be granted on basis that Mr Gava is not fit and proper person – Commission held that imposition of delay of indefinite duration appeared to have very real potential of visiting unfairness on applicant so application should be determined on evidence presented – Mr Gava gave evidence explaining manner and frequency of use of entry permit and significance of permit for performance of his duties – admitted contraventions alleged against him and accepted findings of contraventions made against him in Liability and Penalty Decisions – however, did not have specific recollection of events and also disputed certain facts about the 30 October 2013 incident – confirmed penalties imposed upon him had been paid – confirmed that he undertook further right of entry training with ACTU – submitted statutory declaration on 16 December 2016 advising that entry permit expired on 28 November 2016 and confirmed he had not attempted to use permit after it expired – subsequent statutory declaration signed on 12 January 2017 noted that Mr Gava had in fact issued entry notice on 1 December 2016 and exercised entry rights on 2 December 2016, but that he left the site when advised his entry permit had expired and explained his actions reflected an oversight – provided number of references in support of position that he was fit and proper person to hold right of entry permit – applicant submitted that Mr Gava had completed requisite training, had not been convicted of an offence against industrial law or offence against law of Commonwealth, State or Territory involving entry onto premises, fraud or dishonesty or intentional use of violence or damage – acknowledged penalties imposed upon Mr Gava but unique nature of his behaviour was recognised in Penalty Decision and in quantum of penalty imposed – provided evidence of his contrition which should be regarded as aberration – ABCC contended that findings made in Liability Decision against Mr Gava were to the extent that conduct was deliberate and pre-meditated and was part of concerted campaign in defiance of requirements in FW Act – further submitted that Mr Gava’s actions indicated he was susceptible to comply with directions from employer to engage in unlawful conduct – Commission held that magnitude of October 2013 behaviours, uncertainties about Mr Gava’s poor recollections of behaviours he has undertaken not to repeat, reliance on his entry permit three days after he handed it in, erroneous statutory declarations and uncertainty associated with extent of current Court proceedings did not support finding that he should be regarded as fit and proper person to hold entry permit – further, not satisfied that Mr Gava expressed genuine contrition – took into account extent to which applicant currently only has three permit holders in South Australia but did not regard this consideration as factor which overrode concerns – Commission not satisfied Mr Gava was fit and proper person to hold entry permit – application refused. Construction, Forestry, Mining and Energy Union-Construction and General Division, SA Divisional Branch
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