APPLICATION TO ISSUE DARREN JAMES ROBERTS WITH A RIGHT OF ENTRY PERMIT

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00842

DELIVERED : Thursday, 9 October 2025

FILE NO. : ROE 96 OF 2025

Applicant

AND

(Not Applicable)

Respondent

CatchWords : Industrial Law (WA) - Application for right of entry permit - Application unopposed -  Fit and proper person criteria - Previous offence against industrial law - Federal permit suspended and subsequently reissued -  Right of entry permit issued

Legislation : Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Industrial Relations Commission Regulations 2005 (WA)
Spent Convictions Act 1988 (WA)

Result : Order issued

Representation:

Applicant : Mr R James and Ms H Buchan on behalf of the United Workers Union (WA)

Case(s) referred to in reasons:

Construction, Forestry, Mining and Energy Union v Fair Work Commission [2014] FWCFB 2709

Construction, Forestry, Mining and Energy Union - Construction and General Division, Western Australia Divisional Branch [2017] FWC 999

Director of the Fair Work Building and Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293

Director of the Fair Work Building and Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413

Fair Work Commission [2013] FWC 10168

Fair Work Commission [2014] FWC 3907

Fair Work Commission v Darren Roberts [2016] FWC 4052

Roberts v Office of the Fair Work Building Industry Inspectorate T/A Fair Work Building and Construction [2016] FWCFB 6696

The Construction, Forestry, Mining and Energy Union of Workers v (Not applicable)[2025] WAIRC 00727; (2025) 105 WAIG 2241

Reasons for Decision

1         The Secretary of United Workers Union (WA)(UWU) has applied to the Commission for the issue of a right of entry permit to its employee or officer, Mr Darren James Roberts.

2         In its application, UWU disclosed:

(a) that in 2015, Mr Roberts was held to have contravened section 500 of the Fair Work Act 2009 (Cth) (FW Act) by acting in an improper manner while seeking to exercise a right in accordance with Part 3-4 of the FW Act by:

(i) failing to provide a notice of entry as required by s 487 of the FW Act in order to enter a site, and by remaining on the site and holding discussions with workers; and

(ii) speaking in an aggressive, loud, rude and threatening manner to the Site Operations Manager: Director of the Fair Work Building and Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 and Director of the Fair Work Building and Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413.

(b) in relation to this contravention, Mr Roberts was ordered to pay a pecuniary penalty of $2,200: Director of the Fair Work Building and Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413.

(c) in relation to this same contravention and penalty, Mr Roberts had his right of entry permit suspended by the Fair Work Commission for a period of 4 months in 2016, with a ban on the issuing of any further entry permit for the same period: Fair Work Commission v Darren Roberts [2016] FWC 4052.

3         The contravention occurred on 30 October 2013 when Mr Roberts was an organiser with a different registered organisation, what was then the Construction, Forestry, Mining and Energy Union (CFMEU). It did not occur while Mr Roberts was UWU’s employee or officer.

4         Under section 49O of the Industrial Relations Act 1979 (WA) (IR Act), a right of entry permit can be issued to a nominated official of an organisation if the Commission is satisfied that the official is a fit and proper person to hold the permit.

5         Section 49P sets out the criteria the Commission must consider in determining whether a person is a fit and proper person.

6         On 19 August 2025 the Registrar published notice of UWU’s application, as contemplated by reg 77E(6) of the Industrial Relations Commission Regulations 2005 (WA). The Registrar’s notice stated that submissions may be made to the Commission detailing whether the nominated official, Mr Roberts, is a fit and proper person to be issued with a right of entry permit.

7         No submissions were received. UWU’s application was unopposed.

8         A hearing for the purpose of determining UWU’s application was held on 7 October 2025. Having heard from UWU, I was satisfied that Mr Roberts was a fit and proper person to hold a permit and made orders for the issue of a right of entry permit accordingly.

9         These are my reasons for so finding.

Statutory framework

10      Sections 49N, 49O and 49P of the IR Act say:

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.

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.

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.

UWU’s application

11      UWU is an organisation of employees within the meaning of s 49N(1) of the IR Act. Mr Roberts is a nominated official within the meaning of s 49N(3) of the IR Act.

12      UWU’s application complied with the requirements set out in regulation 77E(1)-(5) of the Regulations. It was in the approved form, and had annexed to it:

(a) A certificate of Satisfactory Completion of training from Unity Training Services;

(b) A statutory declaration by Mr Roberts dated 12 August 2025;

(c) A statutory declaration by UWU’s Secretary, Carolyn Smith, dated 12 August 2025; and

(d) A photograph of Mr Roberts, bearing his signature and certification by Ms Smith.

13      UWU also provided the Commission with:

(a) A witness statement by Mr Roberts setting out his work history since 2015, including details of entry permits issued to him;

(b) An affidavit of UWU’s Acting President, Ms Lyndal Joy Ryan, dated 29 September 2025 confirming that UWU has had no findings against it in respect of its officials’ exercise of right of entry;

(c) A National Police Certificate dated 3 October 2025 certifying that Mr Roberts is not recorded by the Australian Police jurisdictions with any disclosable court outcomes or pending charges; and

(d) Comprehensive written submissions in support of the application addressing the statutory criteria set out above.

Principles

14      In The Construction, Forestry, Mining and Energy Union of Workers -v- (Not Applicable) [2025] WAIRC 00727; (2025) 105 WAIG 2241, Commissioner Emmanuel observed:

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 Australia, 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.

The 2013 contravention, penalty and resultant permit suspension.

15      The circumstances of Mr Roberts’ misuse of the right of entry rights under the FW Act and the findings that have been made concerning Mr Roberts’ conduct have been documented in several published decisions of the Fair Work Commission and the Federal Court:

(a) Fair Work Commission [2013] FWC 10168;

(b) Construction, Forestry, Mining and Energy Union v Fair Work Commission [2014] FWCFB 2709;

(c) Fair Work Commission [2014] FWC 3907;

(d) Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293;

(e) Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413; and

(f) Fair Work Commission v Darren Roberts [2016] FWC 4052

(g) Roberts v Office of the Fair Work Building Industry Inspectorate T/A Fair Work Building and Construction [2016] FWCFB 6696

(h) Construction, Forestry, Mining and Energy Union - Construction and General Division, Western Australia Divisional Branch [2017] FWC 999.

16      In summary, the contravention involved entering the Lend Lease Building Contractors Pty Ltd’s site at the Adelaide Oval on 30 October 2013 without providing a valid entry notice. Mr Roberts was one of six CFMEU officials who conducted the site visit on that day, all of whom were found to have engaged in conduct in breach of the provisions governing right of entry under the FW Act.

17      Mr Roberts admitted his conduct contravened s 500 of the FW Act.

18      Initially, the contraventions resulted in the Fair Work Commission, of its own motion, suspending Mr Roberts’ and three other CFMEU officials’ right of entry for a period of six months, with that suspension itself suspended such that it would only apply in the event of further contraventions: Fair Work Commission [2014] FWC 3907. The Fair Work Commission also attached conditions on those officials’ right of entry permits in relation to Lend Lease sites in South Australia.

19      In Construction, Forestry, Mining and Energy Union v Fair Work Commission [2014] FWCFB 2709, the Full Bench of the Fair Work Commission found the site visit involved misuse of Part 3-4 rights as follows:

[204] We are satisfied that these rights were misused in that:

●No notice of entry was given as required by the FW Act or the WHS (SA) Act;

●To the extent that entry occurred without notice, the entry hindered the employer’s managers by distracting them from their planned activities and hindrance which magnified given the number of officials entering the site (s.500 of the FW Act); and

●The officials utilised the entry for the purpose of asserting a demand in relation to a permanent delegate being a purpose for which the right of entry does not extend.

[205] We understand the meetings which were referred to in the evidence of Mr Ising occurred during breaks and were not discussions during working times (s.490 of the FW Act). We are not satisfied that the vague and limited evidence of incidental conversations between the officials and workers during their movement through the site provides a sufficient basis for a finding that entry rights were misused by the holding of discussions during working times.

[206] There is no evidence of a request of the officials to produce their permits, nor of any request that they be escorted on the site.

[207] The evidence does not suggest that, other than in arriving without the required notice, the entry involved intentional hindering or obstruction, or otherwise acting in an improper manner (s.500). The evidence as to Mr Roberts, as being heated during a conversation with Mr Ising, the content of which Mr Ising could not exactly recall is insufficient to substantiate such a finding.

[208] We are not satisfied that the evidence supports a finding that the officials entered and walked through the site without authority. Although there is no evidence of an express authority having been given by Mr Ising and he observed that the officials did not have an entry permit, there is similarly no evidence of a request made by him for the officials to leave the site.

20      The Full Bench also found that the visit was at the direction of the CFMEU’s South Australian Branch Secretary, and was part of a strategy directed by the Secretary affecting the manner in which entry was undertaken at some Lend Lease sites: Construction, Forestry, Mining and Energy Union v Fair Work Commission [2014] FWCFB 2709 [194]. Similarly, in Construction, Forestry, Mining and Energy Union v Fair Work Commission [2014] FWCFB 2709 [185], Senior Deputy President O’Callaghan described the CFMEU as having ‘decided upon a form of concerted action which involved deliberate entry onto Lend Lease building sites without providing a notice of entry…I am satisfied that the CFMEU and its officials were engaged in a concerted campaign at Lend Lease sites in Adelaide’.

21      In the Federal Court contravention proceedings, White J made these findings relevant to Mr Roberts:

177 On 30 October 2013, six CFMEU officials entered the Adelaide Oval site. They were the seventh respondent (Mr McDermott), the eighth respondent (Mr Long), the ninth respondent (Mr Harrison), the tenth respondent (Mr Roberts), the eleventh respondent (Mr Stephenson) and the twelfth respondent (Mr Kirner). None of these officials had given forewarning of their intention to visit the site that day, let alone notice of entry pursuant to s 487. This was unusual because, before 30 October 2013, CFMEU officials had always provided notices of entry at least 24 hours in advance of their proposed visits.

…

196 What then occurred was described by Mr Ising as follows:

[48] Mr Roberts then became quite aggressive and acted threateningly towards me. He was almost screaming at me and was being loud and obnoxious. He was putting his face right up close to mine. I felt threatened by how loud and close he was.

[49] While he was doing this, he kept repeating words to the effect of “You don't care about workers.”

[50] At one point, I said to him words to the effect of “Calm down, I want to have a civil conversation”, but Mr Roberts continued the behaviour.

[51] I then said to Mr Roberts words to the effect of “The only place this conversation is going is down a bullying and harassment line.”

[52] Mr Roberts then moved about ten metres away from me and then said “I just want to smash someone right now.”

[53] Simon [Jackson] and some construction workers were within two to fíve metres of me during my conversation with Mr Roberts.

…

201 Mr Ising said, and I accept, that Mr Roberts was aggressive, loud and rude when he raised the issue about the forklifts in the basement. Mr Ising said that the issues raised were baseless as the forklifts operated on gas and not on petrol or diesel.

…

205 Each of Mr McDermott, Mr Roberts and Mr Stephenson admit their contraventions of s 500 at the Adelaide Oval on 30 October, and the CFMEU admits its contraventions constituted by their conduct. These respondents admitted that they had entered the Adelaide Oval for the s 484 purpose, that they had done so without providing a notice of entry, and that they had held discussions with workers while on the site.

206 I observe that the admissions of these respondents, particularly those of Mr Roberts, did not extend to all the aspects of their conduct to which I have referred in the findings above. The evidence of Mr Ising and Mr Jackson justifies those findings, even in the absence of formal admissions.

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293

22      Under s510 of the FW Act, the Fair Work Commission is obliged to suspend or revoke an entry permit if satisfied a contravention has occurred, with a minimum suspension period of three months for a first contravention. Accordingly, following the Federal Court’s contravention and penalty decisions, the Fair Work Commission made orders pursuant to s510 of the FW Act, suspending Mr Roberts’ right of entry permit for four months: Fair Work Commission v Darren Roberts [2016] FWC 4052.

23      These matters must be taken into account in deciding whether Mr Roberts is a fit and proper person to hold a right of entry permit, being matters referred to in s49P(2)(d) and (f) of the IR act. However, there are three things about the October 2013 contravention which lessen the weight of these matters in considering Mr Roberts’ current suitability to hold a right of entry permit.

24      First, the contravention occurred almost 12 years ago.

25      Second, the consequences of the contravention, being the imposition of a pecuniary penalty and the suspension of Mr Roberts’ right of entry permit for a period of four months, have taken their course and been fulfilled.

26      Third, at the time of the contravention Mr Roberts was an official of a different organisation, the CFMEU South Australian Branch. The CFMEU had a ‘history and on-going approach of disregarding its legislative obligations’: Construction, Forestry, Mining and Energy Union - Construction and General Division, WA Divisional Branch [2017] FWC 999 at [40]. Further, the CFMEU’s Secretary had a strategy which affected the manner in which entry was undertaken by organisers in relation to Lend Lease sites in South Australia in October and November 2013.

27      I am required to evaluate Mr Roberts’ personal characteristics, not the characteristics of the organisation for whom he was previously, or is currently, a nominated official. Mr Roberts’ conduct on site which was described as aggressive, loud and rude only reflects on his personal character. But to the extent that the contravention involved entry onto site with several other officials without due notice of entry, this reflects more on the organisation at that time, and its strategy, than on Mr Roberts’ personal character. 

Has Mr Roberts received appropriate training?

28      I am satisfied that Mr Roberts has received appropriate training as evidenced by the Unity Training Services Certificate of Satisfactory Completion dated 31 July 2025. Specifically, Mr Roberts completed WA Right of Entry Permit Holder training on 31 July 2025.

Are there any other relevant fit and proper person criteria?

29      There are no other matters that are fit and proper person criteria under s49P(2) relevant to this application. Mr Roberts has never been convicted of an offence as described in s49P(2)(b),(c) and has never had a right of entry permit under the IR Act suspended or made subject to conditions (noting that he held a right of entry permit on behalf of the Construction, Forestry, Mining and Energy Union of Workers under the IR Act prior to June 2016).

Other relevant matters

Permit issued by the Fair Work Commission

30      The Fair Work Commission issued Mr Roberts with a new right of entry permit in 2017: Construction, Forestry, Mining and Energy Union - Construction and General Division, Western Australia Divisional Branch [2017] FWC 999. This decision was founded on the Senior Deputy President O’Callaghan’s conclusion made at that time, that Mr Roberts was a fit and proper person for the purposes of the test under the FW Act. Senior Deputy President O’Callaghan gave detailed consideration to the October 2013 contravention and its sequalae, as well as Mr Roberts’ conduct prior to and since October 2013.

31      In granting the right of entry permit, Senior Deputy President O’Callaghan observed:

[29] Mr Roberts has a good understanding of the freedom of association requirements implicit in the general protections provisions. He has a good understanding of his obligations as a permit holder. Mr Roberts has indicated that he understands that the actions he took in October 2013 were absolutely inconsistent with the behaviour required of him as a permit holder. Mr Roberts has also explicitly confirmed that, if he was asked to act contrary to his obligations as a permit holder he will refuse to undertake actions of that nature. I have assumed that Mr Roberts understands the potential ramifications of adopting such a position in terms of how he might be regarded within the CFMEU.

Work history

32      Mr Roberts continued to work for the CFMEU as an official in South Australia and Western Australia after 30 October 2013, and until around April 2017. He has been an organiser for UWU since June 2021. He holds or has held Fair Work Commission right of entry permits issued from 2017 through to 2025, a South Australian Work Health and Safety permits issued by the South Australian Employment Tribunal and has completed training for a Commonwealth Work Health and Safety Permit. There is no suggestion that he has misused right of entry at any time after 30 October 2013..

Historical conviction

33      In Senior Deputy President O’Callaghan’s 2017 decision granting Mr Roberts a right of entry permit under the FW Act, reference is made to a historical conviction detailed in a National Police Certificate for Mr Roberts. No penalty was imposed in respect of this conviction.

34      The Senior Deputy President concluded that ‘this conviction was not pertinent to the manner in which Mr Roberts conducts himself as an entry permit holder’: Construction, Forestry, Mining and Energy Union - Construction and General Division, Western Australia Divisional Branch [2017] FWC 999 [36]. It was not a matter which the Senior Deputy President  considered gave rise to a concern about Mr Roberts being regarded as a fit and proper person: Construction, Forestry, Mining and Energy Union - Construction and General Division, Western Australia Divisional Branch [2017] FWC 999 [38].

35      In any event, the conviction is now spent under the Spent Convictions Act 1988 (WA).

36      Accordingly, s 26 of the Spent Convictions Act 1988 (WA) precludes me from considering it in determining Mr Roberts’ fitness.

Conclusion

37      Having regard to the above matters I was satisfied that Mr Roberts is a fit and proper person to hold a right of entry permit, and that an unconditional right of entry permit should issue. To summarise, while there has been a single past contravention of an industrial law, that contravention does not disqualify Mr Roberts as a fit and proper person to hold an entry permit because:

(a) Almost 12 years have since passed since the contravention;

(b) The consequences of the contravention have taken their course;

(c) The contravention occurred as part of a concerted campaign directed by the CFMEU’s South Australian Branch Secretary, and so has limited bearing on Mr Roberts’ personal character;

(d) Mr Roberts has worked as a union official since the contravention and has held right of entry permits in that capacity, without further misuse of the rights conferred;

(e) The FWC has remained satisfied that Mr Roberts is a fit and proper person to hold an entry permit under the FW Act for the last eight years; and

(f) The training requirements of the IR Act have been met.

38      I ordered accordingly that the right of entry permit be issued.