APPLICATION TO ISSUE CIARAN BARRETT WITH A RIGHT OF ENTRY PERMIT

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00727

DELIVERED : THURSDAY, 28 aUGUST 2025

FILE NO. : ROE 69 OF 2025

Applicant

AND

(Not Applicable)

Respondent

CatchWords : Industrial law (WA) – Application for right of entry permit – Federal permit previously issued – Fit and proper person – Applicant charged with intentionally damaging property – Charge unrelated to industrial law – Other matters that the Commission considers relevant – No submissions made opposing the issue of the right of entry permit – Right of entry permit issued

Legislation : Crimes Act 1958 (Vic) s 197(1)

  Fair Work Act 2009 (Cth) s 512, s 513

  Fair Work (Registered Organisations) Act 2009 (Cth) s 9A(1)

  Fair Work (Registered Organisations) Regulations 2009 (Cth) reg 8A, item 323

  Industrial Relations Act 1979 (WA) s 49G, s 49H, s 49I, s 49N, s 49O, s 49P, s 49Q 

  Industrial Relations Commission Regulations 2005 (WA) reg 77E

  Industrial Relations Legislation Amendment Bill 2024 (WA)

Result : Right of entry permit issued

Representation:

Applicant : Mr D Rafferty (of counsel)

Respondent : N/A

Case(s) referred to in reasons

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522

Construction, Forestry and Maritime Employees Union -Construction and General Division, Western Australia Divisional Branch [2025] FWC 1586

Registrar, Western Australian Industrial Relations Commission v The Construction, Forestry, Mining and Energy Union of Workers [2025] WAIRC 00306

Reasons for Decision

1         The Construction, Forestry, Mining and Energy Union of Workers (CFMEUW) has applied to the Commission for a right of entry permit for Mr Ciaran Barrett.

2         Mr Barrett has been employed as an Organiser at the CFMEUW since 5 May 2025. In September 2024, Mr Barrett was charged with intentionally damaging property pursuant to s 197(1) of the Crimes Act 1958 (Vic). The particulars of the charge are set out below at [28]. In essence, it was alleged that on two occasions Mr Barrett damaged washing machines at a laundromat by tracing existing scratches with a ball point pen.

3         Mr Barrett has not been found guilty of the charge. Rather, Mr Barrett accepted responsibility for a single, downgraded ‘wilful damage’ (rather than ‘criminal damage’) charge and consented to a diversion plan.

4         No one opposes the issue of a right of entry permit.

Question to be answered

5         The Commission must decide whether to issue a right of entry permit to Mr Barrett. This involves considering whether Mr Barrett is a fit and proper person to hold a right of entry permit.

Statutory framework

6         This decision is the first of its kind since Division 2G of Part II of the Industrial Relations Act 1979 (WA) (IR Act), which deals with right of entry, was amended by the Industrial Relations Legislation Amendment Bill 2024. Broadly, the amendments seek to align the right of entry provisions in the IR Act with those in the Fair Work Act 2009 (Cth) (FW Act).

7         Relevantly, the IR Act provides:

49G. Terms used

 (1) In this Division —

 authorised representative, of an organisation of employees, means an officer or employee of the organisation who holds a right of entry permit;

  conviction —

  (a) means a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded; and

  (b) includes —

  (i) a spent conviction as defined in the Spent Convictions Act 1988 section 3(1), regardless of sections 13 and 25 to 27 of that Act; and

  (ii) a conviction against a law of another jurisdiction if, under a law of that jurisdiction, the person concerned is permitted not to disclose the fact that the person was convicted or found guilty of the offence;

  expiry day, of a right of entry permit, has the meaning given in section 49Q(3);

  federal counterpart, in relation to an organisation, means a federal organisation that is —

  (a) a federal counterpart (as defined in the FW (Registered Organisations) Act section 9A) of the organisation; or

  (b) prescribed to be a federal counterpart of the organisation by regulations made by the Governor;

  fit and proper person criteria has the meaning given in section 49P(2);

  industrial law means the following —

  (a) this Act, the LSL Act and the MCE Act;

  (b) the FW Act and the FW (Registered Organisations) Act;

  (c) another law of the Commonwealth, or a law of another State or a Territory, prescribed to be an industrial law by regulations made by the Governor;

nominated official, in relation to an application under section 49N(1), has the meaning given in section 49N(3);

relevant employee, when used in connection with the exercise of a power by an authorised representative of an organisation, means an employee who is a member of the organisation or who is eligible to become a member of the organisation;

  right of entry permit means a permit issued by the Commission under Subdivision 3;

  work health and safety law means —

  (a) the Work Health and Safety Act 2020; or

  (b) a law of the Commonwealth, another State or a Territory prescribed to be a work health and safety law by regulations made by the Governor.

 (2) In this Division, a reference to an officer or employee of an organisation includes a reference to an officer or employee of a federal counterpart of the organisation.

   [Section 49G inserted: No. 43 of 2024 s. 26.]

…

49H. Entry for discussions with employees

 (1) An authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions.

…

49I. Entry to investigate certain breaches

 (1) An authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of investigating any suspected breach of any of the following —

  (a) this Act, the LSL Act or the MCE Act;

  (b) the Work Health and Safety Act 2020;

  (c) the Construction Industry Portable Paid Long Service Leave Act 1985;

  (d) a local government long service leave provision;

  (e) an award, order, industrial agreement or employer-employee agreement that applies to a relevant employee.

…

49N. Application for right of entry permit

  (1) The secretary of an organisation of employees may apply to the Commission for an officer or employee of the organisation to be issued a right of entry permit.

  (2) The application must comply with any requirements prescribed by the regulations.

  (3) The officer or employee named in the application is the nominated official.

  [Section 49N inserted: No. 43 of 2024 s. 33.]

49O. Commission may issue right of entry permit

  (1) The Commission may, on an application under section 49N, issue a right of entry permit to the nominated official if satisfied that the official is a fit and proper person to hold the permit.

  (2) The Commission may decide to issue a right of entry permit subject to conditions.

  (3) The Commission cannot issue a right of entry permit to the nominated official if, when the Commission is deciding the application —

  (a) a right of entry the official had under an industrial law or work health and safety law is suspended under that law; or

  (b) the official is disqualified under an industrial law or work health and safety law from exercising, or applying for, a right of entry under that law.

  [Section 49O inserted: No. 43 of 2024 s. 33.]

49P. Deciding whether nominated representative is fit and proper person

  (1) In deciding whether a nominated official is a fit and proper person to hold a right of entry permit, the Commission —

  (a) must consider the fit and proper person criteria in relation to the official; and

  (b) may consider any other matters the Commission considers relevant.

  (2) The following matters are the fit and proper person criteria in relation to a nominated official —

  (a) whether the official has received appropriate training about the rights and responsibilities of an authorised representative;

  (b) whether the official has ever been convicted of an offence against an industrial law;

  (c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving —

  (i) entry onto premises; or

  (ii) fraud or dishonesty; or

  (iii) the intentional use of violence against another person; or

  (iv) the intentional damage or destruction of property;

  (d) whether the official, or another person, has ever been ordered to pay a penalty under an industrial law in relation to the actions of the official;

  (e) whether a right of entry permit issued to the official has been revoked, suspended or made subject to conditions;

  (f) whether a right of entry for industrial or work health and safety purposes the official had under an industrial law or a work health and safety law has ever been revoked, suspended or had conditions imposed on it;

  (g) whether the official has ever been disqualified under an industrial law or a work health and safety law from exercising, or applying for, a right of entry for industrial or work health and safety purposes under that law.

  [Section 49P inserted: No. 43 of 2024 s. 33.]

49Q. Form of right of entry permit

  (1) This section applies if the Commission, on an application under section 49N, decides to issue a right of entry permit to the nominated official.

  (2) The right of entry permit must state the following information —

  (a) the name of the nominated official;

  (b) the name of the organisation of employees, the secretary of which made the application;

  (c) the conditions, if any, the permit is issued subject to;

  (d) the day on which the permit is issued and its expiry day.

  (3) For the purposes of subsection (2)(d), the expiry day of a right of entry permit is the day that is 3 years after the day on which the permit is issued.

   [Section 49Q inserted: No. 43 of 2024 s. 33.]

8         The Industrial Relations Commission Regulations 2005 (Regulations) set out the requirements for an application for a right of entry permit made under s 49N(1) of the IR Act, relevantly stating:

77E. Requirements for application for right of entry permit (Act s. 49N(2))

  (1) For the purposes of section 49N(2) of the Act, this regulation sets out the requirements for an application made under section 49N(1) of the Act by the secretary of an organisation of employees for an officer or employee of the organisation to be issued a right of entry permit.

  (2) The application must —

  (a) be in the approved form; and

  (b) include —

  (i) the full legal name and address of the nominated official; and

  (ii) a legible copy of the nominated official’s signature;

   and

  (c) be accompanied by —

  (i) a current passport size and style photograph of the nominated official (the accompanying photograph); and

  (ii) evidence that the nominated official has completed appropriate training about the rights and responsibilities of an authorised representative;

   and

  (d) have attached to it the particulars approved by the Chief Commissioner from time to time.

  (3) If requested by the Commission, the application must also be accompanied by a document called a National Police Certificate that —

  (a) relates to the nominated official; and

  (b) is issued by the Australian Federal Police or the Police Force of Western Australia not more than 30 days before the application is made.

  (4) The secretary must certify that the person in the accompanying photograph is the nominated official.

  (5) If the accompanying photograph is in printed form, the certification mentioned in subregulation (4) must be made on the back of the accompanying photograph.

  (6) The Commission may, before it considers the application, publish all of the following on the Commission’s website —

  (a) the name of —

  (i) the organisation that is applying for the right of entry permit; and

  (ii) the nominated official for the application;

  (b) a statement that the organisation has applied for the right of entry permit to be issued to the nominated official;

  (c) a statement that submissions may be made to the Commission, within a specified time, as to whether the nominated official is a fit and proper person to be issued the right of entry permit.

  [Regulation 77E inserted: SL 2025/21 r. 14.]

Background

9         The CFMEUW is an organisation of employees registered under Division 4 of Part II of the IR Act.

10      The Construction, Forestry and Maritime Employees Union (CFMEU), Construction and General Division, Western Australian Divisional Branch (Federal WA Branch) is the Western Australian branch of an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (FW (Registered Organisations) Act).

11      The CFMEU is the federal counterpart of the CFMEUW for the purpose of the FW (Registered Organisations) Act: s 9A(1); Fair Work (Registered Organisation) Regulations 2009 (Cth): reg 8A and Item 323 in Part 3 of Schedule 1A.

12      Accordingly, the CFMEU is also the federal counterpart for the purpose of Division 2G of Part II of the IR Act: s 49G(1).

13      The Federal WA Branch has also been recognised as the ‘counterpart federal body’ of CFMEUW for the purpose of Division 4 of Part II of the IR Act: Registrar, Western Australian Industrial Relations Commission v The Construction, Forestry, Mining and Energy Union of Workers [2025] WAIRC 00306.

14      In June 2025, the Fair Work Commission (FWC) decided that Mr Barrett is a fit and proper person to hold a right of entry permit and issued him a permit under s 512 of the FW Act (Federal Permit): Construction, Forestry and Maritime Employees Union – Construction and General Division, Western Australia Divisional Branch [2025] FWC 1586 (Federal Permit Decision).

15      The Federal Permit has the following condition:

Ciaran Patrick Barrett must not exercise rights under Subdivision AA of Division 2 of Part 3-4 of the Act until he has completed appropriate training in relation to that subdivision and he has filed a copy of the training completion certificate to the Fair Work Commission.

16      Mr Barrett’s Federal Permit is number RE2025/391. It expires on 9 June 2028.

The CFMEUW’s application

17      The Secretary of the CFMEUW lodged an application for Mr Barrett to be issued with a right of entry permit under Subdivision 3 Division 2G of Part II of the IR Act.

18      In support of its application the CFMEUW filed a statutory declaration of its Secretary, Mr Michael Buchan dated 10 June 2025, a statutory declaration of Mr Barrett dated 10 June 2025, supplementary statutory declarations by Mr Barrett dated 1 and 11 August 2025, various documents and detailed written submissions.

19      Having regard to the requirements under the IR Act and Regulations, I am satisfied that the application is validly made. The application was made by the Secretary of the CFMEUW and it meets the requirements of reg 77E of the Regulations in accordance with s 49N of the IR Act.

Is Mr Barrett a fit and proper person to hold a permit?

20      To issue Mr Barrett a right of entry permit, I must be satisfied that he is a fit and proper person to hold the permit: s 49O(1) of the IR Act. Section 49P provides for how the Commission decides that matter.

21      Before listing this matter for hearing, on 19 June 2025 the Commission published on its website notice of this application and that submissions may be made to the Commission within 14 days about whether Mr Barrett is a fit and proper person to hold a right of entry permit.

22      The CFMEUW made submissions in accordance with the Commission’s programming orders. No other person made submissions about whether Mr Barrett is a fit and proper person to hold a right of entry permit, or otherwise indicated any opposition to the application.

23      As the CFMEUW submits, s 49P of the IR Act is almost identical to s 513(1) of the FW Act. Under s 49P(1)(b), the Commission may consider any other matters it considers relevant, whereas under s 513(1)(g) of the FW Act, the FWC must take into account ‘any other matters that the FWC considers relevant’.

24      Vice President Hatcher (as he was then) set out the principles to be applied by the FWC when assessing whether a person is a fit and proper person for the purpose of s 512 and 513 of the FW Act in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522 at [32]:

The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of the s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia25, CEPU v Director of the Fair Work Building Industry Inspectorate, Director of the Fair Work Building Industry Inspectorate v CFMEU, Construction, Forestry, Mining and Energy Union, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate. The relevant principles maybe summarised as follows:

• A “fit and proper” standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.
• The expression “fit and proper person” in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit.
• The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se, but rather whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.
• The question of whether an official is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights.
• The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.
• The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.
• While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).
• Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit. (footnotes omitted)

25      Those principles are well-established. I consider they should be adopted in this matter.

26      The Commission’s task is to weigh the mandatory and discretionary criteria in s 49P of the IR Act to decide whether the particular nominated official is a fit and proper person to hold a right of entry permit, and to act as an authorised representative of their organisation, for the purpose of accessing workplace premises to exercise the rights and responsibilities conferred by Division 2G of Part II of the IR Act, including entry and inspection rights conferred by ss 49H and 49I of the IR Act, having regard to any conditions the Commission considers should apply to the right of entry permit.

27      In the application form Mr Buchan stated that Mr Barrett:

1. is employed as an Organiser and holds permit RE2025/391 as a permit holder with the Construction, Forestry and Maritime Employees Union, which was issued by the FWC on 9 June 2025 under s 512 of the FW Act;
2. has received appropriate training about the rights and responsibilities of an authorised representative in the state system;
3. has not ever been convicted of an offence against an industrial law;
4. has not ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving:
   1. entry onto premises;
   2. fraud or dishonesty;
   3. the intentional use of violence against another person; or
   4. the intentional damage or destruction of property;
5. has not ever been ordered to pay a penalty under an industrial law in relation to his actions;
6. has not ever had a permit revoked, suspended or made subject to conditions by the Commission or FWC;
7. has not ever had a right of entry for industrial or work health and safety purposes and had that permit revoked, suspended or conditions imposed on it under an industrial law or a work health and safety law; and
8. has not ever been disqualified under an industrial law or a work health and safety law from exercising, or applying for, a right of entry for industrial or work health and safety purposes under that law.

28      In response to the Registry’s request on 12 June 2025 for clarification about why Mr Buchan answered ‘No’ on the Form 16 to the question about whether Mr Barrett ever had a permit revoked, suspended or made subject to conditions by the Commission or FWC, in circumstances where the FWC imposed a condition on the Federal Permit issued to Mr Barrett, the CFMEUW stated:

(a) the condition imposed on Barrett’s right of entry permit in RE2025/391 relates to the exercise of rights under Subdivision AA of Division 2 of Part 3-4 of the Fair Work Act 2009 (Cth). This subdivision deals with entry to investigate suspected contraventions relating to workers whose work is covered by the Textile, Clothing, Footwear and Associated Industries Award 2020 (ss.483A(1A) of the FW Act)) (TCF Workers) (emphasis added);

(b) all CFMEU Construction & General Division officials in WA (the relevant Federal counterpart to the CFMEUW) have been issued a permit subject to a condition to the same effect as Mr Barrett’s since on or around 17 October 2022. Namely, that the permit holder is not permitted to exercise rights under the Subdivision until they have completed the training referred to at [7] of the Decision;

(c) CFMEU officials do not complete this training as they do not, and never have, exercised rights under the Subdivision. This is because the Manufacturing Division is the relevant division with the responsibility to represent TCF Workers, and officials of the Construction & General division in WA do not interact with these workers;

(d) we acknowledge that failure to disclose this condition is a technical failure to disclose a matter relevant to s.49P(1)(e) of the Industrial Relations Act 1979 (WA). We sincerely apologise for this oversight;

(e) notwithstanding this mistake, our view, respectfully, is that this failure was a technical oversight which should bear little weight in assessing whether Mr Barrett is a fit and proper person for the purposes of s.49P of the IR Act;

29      In response to the question ‘Are there any other matters that may be relevant to whether the nominated official is a fit and proper person to hold a permit’, Mr Buchan stated in the application:

1. On 16 September 2024, the nominated official was charged with intentionally damaging property pursuant to s.197(1) of the Crimes Act 1958 (Vic). In relation to this charge, the Applicant notes:

a. the charge relates to events that occurred on or around 24 June 2023 and 25 March 2024 at a laundromat;

b.  the nominated official is alleged to have damaged washing machines by tracing existing scratches with a ball point pen;

c. the nominated official attended an initial hearing on 28 May 2025. On that date the matter was held over until 7 August 2025, as the prosecution sought further time to review evidence and consider its position;

d. the Applicant will ensure the Commission receives updates on this matter as it develops.

2. There are no other matters relevant to whether the nominated official is a fit and proper person.

30      Mr Buchan declared that he:

1. made proper enquiries about Mr Barrett and he believes that Mr Barrett is a fit and proper person to hold a right of entry permit;
2. viewed the form that Mr Barrett completed which addresses the fit and proper person criteria outlined in s 49P(2) of the IR Act and any other matters the Commission may consider relevant;
3. read Mr Barrett’s declaration and spoke to the CFMEUW’s lawyer about that declaration and the matters in s 49P(2) and s 49P(1)(b) of the IR Act; and
4. conducted a search of the Federal Court, FWC and Commission websites, and found no adverse decisions in relation to Mr Barrett.

31      Having made those enquiries, Mr Buchan declared that he is satisfied to the best of his knowledge and belief that Mr Barrett meets the criteria in s 49P(2) of the IR Act and that he has disclosed any matters that may be relevant to the Commission’s consideration.

32      Across his three statutory declarations, Mr Barrett declared:

1. the information contained in the application is true and correct and he has disclosed all relevant matters that may arise under s 49P of the IR Act;
2. he gave Mr Buchan a recent full-face passport size photograph of himself, and showed Mr Buchan his driver’s license, which has his signature;
3. between 2009 and the start of his employment as an Organiser with the CMFEUW in Western Australia on 5 May 2025, Mr Barrett had worked in various roles on commercial construction projects and sites in Melbourne and Perth;
4. since receiving the Federal Permit in June 2025, Mr Barrett has exercised his right of entry on federal commercial construction sites on around 25 occasions and also entered local government premises as an approved visitor on around 15 occasions. No concerns have been raised with Mr Barrett by any occupier, employer or anyone else about Mr Barrett’s conduct during those entries;
5. as at 1 August 2025, Mr Barrett’s address had changed and he provided his current address to the Commission. Further, Mr Barrett had a lawyer in relation to his criminal charge and had not entered a plea. At that stage the matter was adjourned to 7 August 2025 because the prosecution needed more time to review evidence and consider its position;
6. on 7 August 2025, Mr Barrett’s criminal charge was finalised in the following manner, according to correspondence provided by Mr Barrett’s legal representative in that matter:
   1. Mr Barrett had been facing two charges of ‘criminal damage’. Charge 1 of ‘criminal damage’ was withdrawn in full;
   2. charge 2 of ‘criminal damage’ was amended to ‘wilful damage’ (section 9(c) of the Summary Offences Act 1966 (Vic)) which is considered a minor offence and less serious than ‘criminal damage’. Therefore, the Court granted Mr Barrett a short diversion plan for a single ‘wilful damage’ charge;
   3. Mr Barrett consented to this diversion plan which completes on 7 January 2026. A ‘diversion requires the accepting of responsibility, but it is distinctly not a plea of guilty’; and
   4. the diversion has two conditions – that Mr Barrett is of good behaviour and that he pays the Court $500 before 7 January 2026. If Mr Barrett meets both of those conditions, then after 7 January 2026 the ‘charge will be marked struck-out/withdrawn. There is no finding of guilty or conviction’.

Consideration

33      No one has expressed any opposition to the Commission issuing Mr Barrett with a right of entry permit.

34      In relation to the mandatory ‘fit and proper person criteria’, from what is before me I am satisfied that:

1. Mr Barrett has received appropriate training about the rights and responsibilities of an authorised representative. He completed the ‘WA Right of Entry Permit Holder Training’ on 26 May 2025. The training and the training provider were both approved by the Work Health and Safety Commission;
2. Mr Barrett has never been convicted of an offence against an industrial law;
3. Mr Barrett has never been convicted of an offence referred to in s 49P(2)(c);
4. neither Mr Barrett nor another person has ever been ordered to pay a penalty under an industrial law in relation to Mr Barrett’s actions;
5. Mr Barrett has not had a right of entry permit issued to him, or a right of entry for industrial or work health and safety purposes under an industrial law or work health and safety law, revoked or suspended. I accept that the condition that attaches to the Federal Permit is the same condition imposed on all CFMEU federal permit holders relating to TCF Worker entries under Subdivision AA of Division 2 of Part 3 – 4 of the FW Act. I accept that relates to the Manufacturing division of the CFMEU, and does not practically affect Mr Barrett, who works in the Construction & General Division; and
6. Mr Barrett has not ever been disqualified under an industrial law or a work health and safety law from exercising, or applying for, a right of entry for industrial or work health and safety purposes under that law.

35      Under s 49P(1)(b) of the IR Act, the Commission ‘may consider any other matters the Commission considers relevant’.

36      The matters set out at [29] and [32f] above are other relevant matters. The single, downgraded charge of ‘wilful damage’ relates to a matter in s 49P(2)(c)(iv) of the IR Act.

37      As the CFMEUW points out, Deputy President O’Keeffe decided that Mr Barrett was a fit and proper person to hold a right of entry despite the initial (and more serious) charges. Deputy President O’Keeffe also observed that a conviction of criminal damage would not prevent the issuance of a permit to Mr Barrett:

[5]…This then leaves the issue of the charge of criminal damage. In the first instance, I note that Mr Barrett is entitled to the presumption of innocence. The mere fact that he has been charged does not make him guilty. In addition, as found in the decision of the Full Bench in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FWCFB 5947 at [25]:

“A matter is only required to be taken into account under s 513(1)(g) if the Commission “considers” it to be relevant - that is, the requirement operates upon the opinion as to relevance formed by the Commission. Because the formation of an opinion as to the relevance of a matter to the broad judgment required by the “fit and proper person” criterion will necessarily involve a degree of subjectivity, it is in the nature of a discretionary decision.”

[6] In this instance, I note that while the Mr Barrett has not been convicted, the nature of the charge against him is such that it is one of the types of offences called out specifically in section 513(1)(c) of the Act. On that basis and for an abundance of caution I have considered the matter from the perspective of whether a condition ought to be imposed on the permit whereby it is in some way subject to the outcome of the proceedings. For the reasons that follow, I do not find that the charge warrants such a condition or weighs against a conclusion that Mr Barrett is a fit and proper person. I find that the nature of the alleged wrongdoing is at the minor end of the scale. As such, even if Mr Barrett were convicted, the tracing in pen of cracks already present on a washing machine does not in my view evince an intention to destroy the property or render it unusable. It is more akin to a minor act of graffiti. On that basis I would not regard a guilty finding – if indeed one is even made - as being something that prevented the issue of a permit.

[7] Accordingly, I am satisfied that Ciaran Patrick Barrett is a fit and proper person to hold a right of entry permit taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act. The application by the CFMEU for an entry permit to be issued to Ciaran Patrick Barrett is granted…

38      The CFMEUW states: ‘However, the charge is no or no significant moment when Mr Barrett is entitled to the presumption of innocence and even if a future conviction is recorded it relates to, in substance, a minor act of graffiti that is not inconsistent with and would not prevent the issuance of a permit.’

39      In relation to Mr Barrett’s acceptance of responsibility for the single, downgraded wilful damage charge, I do not consider that matter means the Commission should conclude that Mr Barrett is not a fit and proper person to hold a right of entry permit. The charge involved Mr Barrett tracing existing scratches on a washing machine with a ball point pen. It is a minor offence and does not involve entry onto premises, fraud, dishonesty or violence against another person. It does not involve an industrial law. Mr Barrett has not been found guilty or convicted.

40      I have considered whether Mr Barrett is a fit and proper person to hold a right of entry permit, and to act as an authorised representative of the CFMEUW, for the purpose of accessing workplace premises to exercise the rights and responsibilities conferred by Division 2G of Part II of the IR Act, including entry and inspection rights conferred by ss 49H and 49I of the IR Act. I accept the CFMEUW’s submission that, in the circumstances, the Commission should place little weight on the charge, and greater weight on:

1. Mr Barrett recently completing state and federal right of entry permit training;
2. the FWC recently finding Mr Barrett to be a fit and proper person to hold a right of entry permit;
3. Mr Barrett having since entered various commercial construction site premises using his Federal Permit on around 25 occasions, and local government premises as an approved visitor on around 15 occasions, with no concerns about his conduct; and
4. the lack of opposition to the Commission issuing Mr Barrett a right of entry permit.

41      The Commission is not precluded from issuing a right of entry permit because of the circumstances described in s 49O(3)(a) and (b) of the IR Act.

42      Weighing all the relevant matters set out above, I am satisfied that Mr Barrett is a fit and proper person to hold a right of entry permit and the Commission should exercise its discretion under s 49O of the IR Act to issue a right of entry permit to Mr Barrett.

43      I do not consider that the right of entry permit should be subject to any conditions.

44      An order will issue accordingly.