RIGHT OF ENTRY – misuse of system – ss.480, 505, 508 Fair Work Act 2009 – on 24 December 2015, the Commission made findings (the First Decision) in relation to an application by the applicant under s.508 of the FW Act that certain CFMEU officials had misused their rights of entry [[2015] FWC 6889] – on 7 March 2016, the Commission issued a Decision (the Second Decision) in relation to the s.508 application in which the Commission held that it was appropriate to suspend and, in some instances, revoke the entry permits of certain CFMEU officials [[2016] FWC 811] – Orders giving effect to the Second Decision were issued on 16 March 2016 – the Orders prescribed time periods in which certain CFMEU officials were banned from being issued entry permits – CFMEU lodged an appeal against the Second Decision and sought a stay of several of the Orders in the Second Decision – on 18 March 2016, a stay of the Orders (excluding the Orders made in relation to Mr Kera and Mr Parker) and the Second Decision was granted [[2016] FWC 1692], the First Decision was not affected by the stay order and was not challenged on appeal – on 27 May 2016, a Full Bench heard the appeal and issued a Decision in which the Full Bench upheld the appeal, quashed the Second Decision (save for the part which affected Mr Kera and Mr Parker) and quashed Orders of 16 March 2016 [[2016] FWCFB 3241] – the matter and question of what orders, if any, should be made arising from the First Decision, excluding the question of whether orders should be made against the CFMEU, was referred to the Commission for a full rehearing – Commission heard the matter on 27 March 2017 and reserved decision – consideration of the unusual nature of this matter due to the applicant’s previous application to join its proceedings with those involving Lendlease and the CFMEU, this application was refused – consideration also to the extensive amount of time which had lapsed in relation to the matter between the applicant and the CFMEU without final determination – consideration of discretion afforded by s.508 of the FW Act in determining what, if any, restrictions were to be imposed – Commission not satisfied that the Orders now sought by the applicant achieve the object of Part 3-4 outlined in s.480 – the dispute between Lendlease and the CFMEU has been resolved; there was no evidence of any ongoing issues on those sites; and the Order had been extended by consent on numerous occasions – Order imposed on 18 February 2015 has been implemented effectively, and that Order operated as an effective deterrent – there has been compliance by the CFMEU and the respondents with that Order of 18 February 2015, therefore difficult to see the justification in granting the Orders now sought by the applicant – held a finding of misuse of entry rights does not, as a matter of course, lead to the conclusion that there must be restrictions imposed on rights of entry – there had been no contravention of the Order made under s.505 and the general compliance by the CFMEU and the respondents – not satisfied that the Orders now sought by the applicant achieve the object of Part 3-4 outlined in s.480 – Commission held that the proposed Order proffered by the CFMEU entitled ‘Order under s.508 applying in Victoria and Queensland’, with the conceded amendments should be issued as a draft Order and the parties will be required to make further submissions – Commission held this draft Order recognises the findings of misuse and is appropriate having regard to the nature of those misuses, as noted in Fair Work Commission – as such, the Commission was satisfied this draft Order achieved the object of Part 3-4 pursuant to s.480 – a draft Order to this effect and directions requiring submissions will be issued in accordance with this Decision. Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union and Ors
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