A series of recent cases demonstrates that the Fair Work Commission (FWC) will, with increasing frequency, revoke or suspend union entry permits following findings of contraventions of the Fair Work Act 2009 (Cth) (FW Act).
So far this year, in 3 separate cases, the FWC has suspended or revoked the entry permits of 7 officials of the CFMEU following findings that the union officials misused their right of entry permits. See Fair Work Commission v Roberts [2016] FWC 4052 (29 June 2016), Director, Fair Work Building Industry Inspectorate v Vink [2016] FWC 2512 (20 April 2016), and Director, Fair Work Building Industry Inspectorate v CFMEU [2016] FWC 811 (7 March 2016).
An entry permit is an essential requirement for a union official to have and exercise a statutory right of entry to workplaces under the FW Act. This right of entry is a key tool used by union officials for the purpose of discussion with members and potential members, including for recruitment, and investigation of compliance by employers. However, it is a right susceptible to misuse and abuse in a manner significantly disruptive to an employer’s operations.
Section 510 of the FW Act provides that the FWC must revoke or suspend an entry permit held by a permit holder if satisfied that any one of a number of circumstances have occurred, including, that the permit holder, or another person, was ordered to pay a pecuniary penalty under the FW Act in relation to a contravention of Part 3-4 of the FW Act. Part 3-4 deals with rights of entry to workplaces.
Section 510(2) gives the FWC a discretion not to suspend or revoke an entry permit if it is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.
Each of the officials whose permits were suspended or revoked had been ordered to pay a pecuniary penalty as a result of their misuse of their entry permits, triggering the FWC’s consideration of section 510.
In Fair Work Commission v Roberts the FWC strongly rejected the CFMEU’s suggestion that the revocation or suspension of an entry permit can be regarded as a further penalty. Similarly, in Director, Fair Work Building Industry Inspectorate v Vink the FWC stated that its imposition of a ban period of 2 years on Mr Vink holding an entry permit was not intended to punish him but rather the time would assist in the general legislative goal of ensuring balance between the rights of employee organisations and rights of occupiers of premises and employers.
The FWC also strongly rejected the CFMEU’s suggestion that a permit holder’s otherwise unblemished record meant that the revocation or suspension of their entry permit was harsh or unreasonable. The FWC commented that “behaviour consistent with Part 3-4 of the FW Act must be regarded as the expected norm, rather than something which is, in effect, rewarded”.
In Director, Fair Work Building Industry Inspectorate v CFMEU, in addition to revoking or suspending the entry permits of individual union officers, the FWC made an order imposing conditions on permits issued to an official of the Queensland/Northern Territory or Victorian/Tasmanian branches of the CFMEU. Although largely replicating the legislative obligations, the FWC held that the imposition of the conditions should enhance the prospects of adherence to the legislative requirements in the future.
Self-evidently, the revocation or suspension of an entry permit restricts the ability of an individual official to engage in unlawful industrial activity during a lawful entry to a site. It remains to be seen whether the cases will result in improved behaviour of union officials, however, an increase in the exercise of section 510, which imposes mandatory obligations on the FWC, is a step in the right direction.
