The applicant union applied to the Commission for a right of entry permit for its organiser. The Commission was required to determine whether the organiser was a "fit and proper person" under ss 49O and 49P of the Industrial Relations Act 1979 (IR Act), while also considering a previous contravention of the Fair Work Act 2009 by the organiser during his employment with another union.

The contravention occurred in October 2013, when the organiser entered a worksite without providing the required notice and engaged in discussions with workers. The organiser was found to have acted in an aggressive, loud, rude, and threatening manner towards the Site Operations Manager. As a result, the organiser was ordered to pay a pecuniary penalty of $2,200 and had his right of entry permit suspended for four months in 2016, with a ban on further permits during that period.

The Commission noted that the contravention occurred nearly twelve years prior, the penalties had been served, and the conduct was part of a broader campaign directed by the organiser’s former employer, rather than being solely reflective of their personal character.

In considering the criteria for a "fit and proper person" as set out in s 49P of the IR Act, the Commission evaluated whether the organiser had completed appropriate training, confirmed the absence of any further relevant convictions or penalties, and noted that the organiser had held right of entry permits since 2017 without incident.

The Commission referenced previous decisions, including a 2017 Fair Work Commission determination, which found the organiser to be a fit and proper person to hold a right of entry permit. That decision noted the organiser’s understanding of their statutory obligations and observed that their prior conduct was inconsistent with the standards expected of permit holders. The Commission was satisfied that the historical contravention did not disqualify the organiser, having regard to the passage of time, the absence of further misconduct, and the completion of all penalties.

Senior Commissioner Cosentino, upon consideration of the evidence, made the following findings:

• The single past contravention did not disqualify the organiser, due to the time elapsed, the fulfilment of all penalties, and the organisational context in which the conduct occurred.
• The organiser had demonstrated ongoing compliance and appropriate conduct in subsequent professional roles.
• All requisite training requirements had been satisfied.
• The Fair Work Commission has, over the past eight years, consistently found the organiser suitable to hold right of entry permits.

Accordingly, the Commission determined that the organiser is a fit and proper person to hold a right of entry permit, and a permit was issued.

The decision can be read here.