RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application by the Construction, Forestry, Mining and Energy Union (CFMEU) for the issue of a right of entry permit to its official, Mr Harkins – Mr Harkins is employed as an organiser with the CFMEU – Australian Building and Construction Commissioner did not wish to make a submission in relation to this application – application determined without hearing – considered question of whether a person is a ‘fit and proper person’ [MUA] – also considered CEPU – Mr Harkins had previously worked for Incolink and Unions Tasmania, and was an official of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), in which he was issued entry permits on three separate occasions – CFMEU filed declarations in support of application – these declarations advised Mr Harkins had received appropriate training, had not been convicted of an offence involving conduct described in ss.513(1)(b) or (c) of FW Act, and had not had any entry permit revoked, suspended or had imposed conditions on any such permit – Commission accepted the information disclosed as accurate and correct – declarations also disclosed that Mr Harkins previously engaged in unlawful industrial action constituted by a 24-hour strike of employees in the electrical industry in Tasmania, action was taken to be conduct of the CEPU and CEPU was ordered to pay a penalty in 2005 for contravening s.38 of the Building and Construction Industry Improvement Act 2005 – Mr Harkins filed a statement to the effect that he understood that he must comply with the law and gave an assurance that he will do so – Commission took into consideration the contravening conduct that resulted in the imposition of a pecuniary penalty, the significant passage of time between the conduct outlined above and the current application being made and Mr Harkins’ attitude to compliance with the law, in attributing appropriate weight to this particular permit qualification matter – previous application for a permit of Mr Harkins was made by the Tasmanian Branch of the CEPU in 2009, both the Committee of Management and proposed permit holder declarations in that matter failed to disclose the abovementioned contravention and penalty – the nature of the non-disclosure and the failure to return the Previous Permit within the statutory period was conduct of a serious kind and ought to have been included in the application for the Previous Permit – Commission held explanations provided to have been genuine and accepted that non-disclosure was one of inadvertence rather than deliberate – found ultimately, the assessment to be made is not a punitive one aimed at continuing to punish Mr Harkins for his past wrongdoing – the assessment was whether having regard to the permit qualification matters, some of which discloses past wrong doing, Mr Harkins was now a fit and proper person to hold an entry permit – application granted – entry permit to be issued. Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch
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