RIGHT OF ENTRY – application for permit – ss.512, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance Commission refused application for entry permit to be issued to Mr Tadic of the CFMEU – held he was not fit and proper because the continuing attitude of disobedience of his union branch set a higher bar than normal, and Mr Tadic did not demonstrate different personal qualities or behaviour – appellant claimed the Commission took into account CFMEU contraventions not involving Mr Tadic as well as Federal Court matters where findings had not been made – asserted that the Briginshaw standard of proof was not applied and the Commission failed to give adequate reasons for his conclusion – contended decision manifestly in error in its misapplication of s.508 of the FW Act, addressing concerns about an organisation’s misuse of entry rights rather than visiting those concerns on Mr Tadic – respondent contended that permission to appeal should not be granted as the decision did not depart from established reasoning or judicial authority and did not contain arguable error or injustice to Mr Tadic – Mooney and Kong considered – minority of Full Bench held that while the Commission was able to have regard to the demonstrated behaviour of the CFMEU, the Commission was fundamentally directing his attention at Mr Tadic ‘s characteristics and attributes – minority not satisfied that decision disclosed error and held it would dismiss the appeal – majority of Full Bench held there was error in the Commission’s decision-making process because he framed his consideration in the context of a higher bar than normal applying to Mr Tadic – concluded that the approach of the Commission was not open to him and he acted on a wrong principle in doing so – on the basis of this error, appeal upheld and decision at first instance quashed – parties asked for submissions in relation to the manner of disposition of the appeal – appellant submitted that if the Full Bench felt it did not have sufficient material before it then the application would need to be sent to a Member other than the Vice President for determination ‘because of the various findings which he has already made’ – respondent disagreed and submitted the matter should be remitted for consideration of any further evidence adduced by parties – Full Bench determined it was not inappropriate to remit matter to the Vice President and held this was the best course as there was not sufficient material for it to determine matter – permission to appeal granted, appeal upheld with decision quashed and application remitted to Vice President for rehearing and determination. Appeal by Construction, Forestry, Mining and Energy Union against decision of Watson VP of 31 May 2016 [[2016] FWC 3322] Re: Director of the Fair Work Building Industry Inspectorate
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