RIGHT OF ENTRY – application for permit – ss.512, 513, 515 Fair Work Act 2009 – application for a right of entry permit – Mr Benstead has been employed by the CFMEU as an organiser since December 2004 – was first issued with an entry permit on 21 June 2004 – most recent entry permit issued to him expired on 20 April 2015 – it was not returned to the Commission upon expiry because Mr Benstead had lost it – Director of the Fair Work Building Industry Inspectorate (Director) notified of the lodgement of the application – Director elected to exercise his right under s.72 of the Fair Work (Building Industry) Act 2012 to make submissions in relation to the matter – Director opposed the issue of an entry permit to Mr Benstead – declaration from CFMEU disclosed a number of court proceedings involving Mr Benstead – whether Mr Benstead a fit and proper person – White v Benstead raised serious concerns about Mr Benstead’s fitness and propriety to hold an entry permit – involved a serious breach of s.500 of the FW Act in that Mr Benstead (together with another CFMEU official) entered a worksite without having given any notice of his proposed entry and having no legal basis to do so, pushed past security guards who sought to prevent his entry, failed to identify the purpose of his entry, interrupted employees who were at work for the purpose of holding discussions, disobeyed directions to leave, and eventually had to be escorted out of the site by police – the conduct exhibited was of a person who had no regard whatsoever to the legal obligations and responsibilities in the FW Act attaching to entry to employers’ premises – Commission particularly disturbed by Mr Benstead’s evidence about this matter – evidence was inconsistent with the agreed statement of facts and also internally inconsistent – was simply not credible and not accepted by Commission – demonstrated a refusal to accept responsibility, almost seven years after the event, for a contravention described by the Court as ‘flagrant’, and evinces no recognition of the need to comply with the right of entry provisions in the FW Act – other contraventions were all serious and demonstrated a readiness to engage in unlawful conduct – not persuaded Mr Benstead had learnt anything from the findings made against him in these matters – considered the contraventions found and penalties imposed in Draffin v CFMEU, White v Benstead and FWBII v CFMEU, John Holland v Benstead and Alfred v CFMEU weighed heavily against a conclusion that Mr Benstead was a fit and proper person to hold an entry permit – no evidence that Mr Benstead has in recent years ever actually exercised right of entry under the FW Act in a lawful manner – not satisfied Mr Benstead was a fit and proper person to hold an unconditional entry permit – no confidence that he recognises and takes seriously the need to comply with the right of entry obligations contained in Part 3-4 of the FW Act – no conditions that could be attached to an entry permit which would address the concerns, and allow the Commission to conclude that Mr Benstead was a fit and proper person to be issued with a conditional entry permit – CFMEU given opportunity to propose conditions which might deal with concerns – Director will have an opportunity to respond. Construction, Forestry, Mining and Energy Union – Gerard Benstead
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