RE2016/154, Transcript of Proceedings [2017] FWCTrans 1 (18 January 2017)

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PN1

THE DEPUTY PRESIDENT: Appearance, please?

PN2

MR PUNCH: Yes, sir. If it please the Commission, I seek leave to appear for Mr Enzon, the representative of the branch concerned here and also for Mr Metcher, who is the proposed permit holder.

PN3

THE DEPUTY PRESIDENT: Thank you. I'll grant permission, Mr Punch, because there's no one to oppose it, which is very unfortunate.

PN4

MR PUNCH: Thank you, your Honour. It's a somewhat unusual situation in a number of different respects.

PN5

THE DEPUTY PRESIDENT: Yes. The matter's been listed for hearing and allocated, within the organisational panel, and it just so happened Watson VP allocated it to me. I've read the file and I can see the issues that were raised, in respect of the application. I think probably the best thing is if you just tell me what you'd like to tell me, by way of explanation and take it from there.

PN6

MR PUNCH: Thank you, your Honour. What I propose to do is to give you a supplementary submission, which I hope goes to the relevant issues specifically. There's a bit of material that's accumulated but I have prepared a submission which I would then talk to you and perhaps - - -

PN7

THE DEPUTY PRESIDENT: I'll just mark that exhibit P1.

EXHIBIT #P1 SUPPLEMENTARY SUBMISSIONS

PN8

THE DEPUTY PRESIDENT: I might say, just by way of explanation, on the file, so it's clear to you to tell you that I've read all this, is the correspondence that was sent to the union by Mr Enright, the director of the Regulation compliance branch, and your various responses. The substantive response is 24 March.

PN9

MR PUNCH: That's correct, your Honour. I was going to go to that in what I was going to say to you in this - - -

PN10

THE DEPUTY PRESIDENT: There's also a further affidavit from Mr Metcher that's dated 21 April, so all of that is on the file, as well as the usual reports that I'd get from the Regulation compliance branch.

PN11

MR PUNCH: Yes, your Honour. We haven't seen those reports but we're - - -

PN12

THE DEPUTY PRESIDENT: No, you don't get to see those.

PN13

MR PUNCH: - - - not troubled by that. We're not troubled by that.

PN14

THE DEPUTY PRESIDENT: You don't get to see them, sorry.

PN15

MR PUNCH: That's all right, your Honour. What I was going to do was just take you through this submission, some of the paragraphs more quickly than others, then to speak to them or answer any inquiries which you have, or hopefully answer them. So just starting at the top, this matter was originally before the delegate to the general manager and has been referred to the Commission for determination. On 29 January 2016 the branch submitted an application to the Commission for the issuing of a further right of entry permit to Mr Metcher. His then permit expiring that day. The expired permit was returned.

PN16

Now, these submissions which I'm making now, your Honour, both on my feet and also in the written form, supplement the written submissions lodged in this matter by Carol & O'Dea Lawyers, on behalf of the applicant, on 24 March, the original submissions. It is sought for a copy of the original submissions be marked as an exhibit in these - if your Honour regards that as appropriate, but you've made what I've just handed up P1, there's a few things that perhaps ought to be marked as exhibits, in my submissions anyway. One would be that original submission, which is the one of 24 March, which you are aware of, your Honour
- - -

PN17

THE DEPUTY PRESIDENT: Yes, that will be exhibit P2.

EXHIBIT #P2 ORIGINAL SUBMISSION DATED 24/03/2016

PN18

MR PUNCH: Thank you, your Honour. Now, the original submissions were in response to a letter from the delegate to Mr Enzon, branch representative of this matter, dated 29 February. Now, your Honour, I'm in your hands as to whether that's necessary to be marked as an exhibit or not.

PN19

THE DEPUTY PRESIDENT: No, I don't think so, it's part of the file.

PN20

MR PUNCH: Thank you, your Honour. I might just indicate that that correspondence indicated a, and I may need to speak to this later so perhaps I'll deal with it then, but there's a reference to correspondence that the delegate, Mr Enright, had had with the then national secretary of the Communication Division, which is Mr Dwyer(?). Your Honour, there is a reference there into a letter from Mr Dwyer to Mr Enright in response, which wasn't supplied to us, but it may be on the file. If it's not, I can hand up a copy of that letter. That might be for completeness. I'll only have a limited submission to put about that particular communication.

PN21

So, your Honour, we'll move on to paragraph 5 of this submission. The applicant seeks to rely on, and have marked as an exhibit in these proceedings, a statutory declaration of Mr Metcher, dated 21 April 2016. Now, you've noted that you have that but, for completeness, I'd like to hand up and have marked the original of the statutory declaration.

PN22

THE DEPUTY PRESIDENT: Sure. We'll mark that exhibit P3.

EXHIBIT #P3 STATUTORY DECLARATION DATED 21/04/2016

PN23

MR PUNCH: Now, your Honour, we now move on to dealing, I hope, with the issues that you might need to reflect upon. So there's clearly a significant amount of material as to the facts and circumstances of this matter, which has now been before you in P2, the original correspondence and P3.

PN24

Paragraph 6 of my supplementary submission says that we believe the issues to be dealt with are as follows; whether Mr Metcher's training record is sufficient, this is paragraph 6, whether Mr Metcher is a fit and proper person, in the necessary sense and, thirdly, the significance of the failure to disclose the 29 May 2013 incident in the application.

PN25

Those, as we see it, are the central issues that arise for consideration in this matter. If your Honour is thinking that there is another issue of which I have not been able to identify myself, do you want to mention that now or deal with it at the end of the submission?

PN26

THE DEPUTY PRESIDENT: No. Well, as I understand it, the main issue that was raised by the delegate, directed to the regulation compliance manager, was the failure to disclose certain incidents and litigation possible, although I think, in the end, not completely resolved criminal proceedings that arose from an incident, as part of enterprise bargaining negotiations at Australia Post in 2013.

PN27

MR PUNCH: Yes. Your Honour, I am, as is Mr Metcher, of course, familiar with what occurred in relation to that, in considerable detail. Now, your Honour, this is a summary, what I'm about to say is a summary, which can be gleaned anyway from the material upon a close reading, your Honour, but there was an incident in the Australia Post board room, on 29 May 2013 when there was a meeting being conducted there in relation to the negotiation of what is colloquially known as EBA8. That is, the eighth iteration of the enterprise bargaining agreement for the staff of Australia Post. It was a large gathering, your Honour, including, amongst its cohort, senior management of Australia Post, including the current chief executive officer, Mr Fahour.

PN28

Now, your Honour, it is a fact which could not be disputed that there was some significant differences of opinion between the union officials over the negotiations. Things became a little heated and there was a break in the meeting, called by Mr Fahour. As people were moving towards the exit Mr Metcher came into physical contact with Mr O'Nea, who was then the assistant national secretary of the division and, I suppose to put it as simply as possible, they were on different sides of the argument.

PN29

THE DEPUTY PRESIDENT: I think you can take it that I'm aware of some of the differences that have taken place in the organisation over a few years.

PN30

MR PUNCH: Yes, your Honour. Well, that's as much as I think is appropriate for me to say about what occurred. There were subsequently proceedings taken, firstly by Mr O'Nea, by way of, what we call in New South Wales, AVO proceedings. I think they're called personal protection intervention orders in Victoria. Those proceedings were settled by the agreement of Mr Metcher and Mr O'Nea, on 8 August 2013, by consent, without admissions of liability. So that's one set of proceedings.

PN31

There was then, subsequently, I think in the September, that's when they were initiated, were two charges, under the Victorian Crimes Act, which were laid against and served on Mr Metcher. Those are detailed in the statutory declaration and also in the submission. Your Honour, those charges ultimately were discharged. There were no findings of fact, no findings of guilt of any offence, and no convictions. There was, however, a diversion plan that Mr Metcher participated in, which is detailed in his statutory declaration and the attachments to the application. Now, as a result of that, the proceedings were, effectively, discontinued.

PN32

I can go into more detail about that, if needed, your Honour, including the statutory basis of diversion plans in Victoria, the - - -

PN33

THE DEPUTY PRESIDENT: That's not necessary.

PN34

MR PUNCH: I would respectfully submit it's probably not necessary, your Honour. Now, your Honour, in my submission document that I've handed up, which is P1, I've dealt with training, and I can come back to that, your Honour. I've also dealt with the question of fit and proper person and I would say, in relation to this, your Honour, that let's put aside, for a moment, the non-disclosure issue and then look at Mr Metcher, in terms of the test that the Commission has identified as to what is a fit and proper person for these purposes.

PN35

THE DEPUTY PRESIDENT: Sorry, Mr Punch, can I just say this? Really, I think the proper way to approach it is that, and the way I've always approached it, is that the Commission will issue the permit if it's satisfied that he is a fit and proper person. In considering that, I need to take into account he matters that are in section 513, one of which is training, the other ones are set out there, which essentially involve offences, in relation to industrial laws, of one form or another, or offences in respect of permits, in one form or another. Then, finally, in the other matters that the Commission considers relevant, (g). It's that subsection that I think the Regulation compliance branch have raised as being relevant, in the sense that that's usually where disclosure is dealt with. So it's said, "Well, what are the other matters?" And the fact that something is not disclosed and sometimes that can be matters which are covered within the previous subsections, that is to say offences in respect of right and entry and so on, they're matters that mightn't be disclosed in the application therefore that becomes an issue of substance. And there have been matters, not usually with respect to the CEPU but rather more with respect to the CFMEU, where the Fair Work Commission is intervening. There have been matters where that has become a real issue.

PN36

So the issue that was raised here was whether all of these matters that you've outlined and you've just dealt with, should have been disclosed in the application. That's the question that arises. Now, they weren't disclosed, there's no doubt about that and, in any event, now they have been disclosed - - -

PN37

MR PUNCH: They have, indeed, your Honour, yes.

PN38

THE DEPUTY PRESIDENT: So the question is whether they're matters that really go to the consideration of whether Mr Metcher is a fit and proper person. The fact that they weren't disclosed and the types of matters that they are really, that's the judgment. Of course I understand what you say about that, but I just wanted to put it that that's where it arises. The other issues are dealt with in each of the other subheadings, under 513, and from what I can see, there's no issue, other than the question of training, there's no issue that arises in respect of any of the other matters. In respect of Mr Metcher's history.

PN39

MR PUNCH: Your Honour, with respect, we agree with that analysis. Can I, perhaps, then take you to the last page of this P1, which I've handed up, because that deals with and puts forward our position, in relation to the failure to disclose, and hopefully this may be of assistance.

PN40

Now, the reasons for the failure to disclose incident and subsequent proceedings, as Mr Enzon and the Commissioner set out in the original submission in the statutory declaration, and those are essentially that there was no conviction, there was no finding of guilt, there was no seeking of legal advice as to whether disclosure out to have been given. Then we go on to say this:

PN41

Bearing in mind the extent of the Commissions discretion in considering the question of fit and proper person for these purposes closer consideration ought to have been given to making some disclosure, in relation to the incident of 29 May.

PN42

What ought to have been disclosed, bearing in mind the circumstances are not that easy to formulate as (a) the Commission's form did not prompt such consideration =

PN43

And the revised form, on my reading, doesn't either. But clearly it is a general principle that when in doubt disclose:

PN44

(b) the proceedings arising from the incident had been fully concluded a year before the application.

PN45

We compare that situation to Mr Radbar's(?) case, which was the one before your Honour, where he was party to two separate pieces of relevant litigation, one of which was disclosed in the application, one of which was not. So what I guess I'm implicitly saying there, your Honour, is that if, when the time for the making of this application had arisen there were pending charges of a criminal nature, against Mr Metcher, then it would have been more clearly, in my respectful submission, a case where disclosure ought to have been made. Where the position is, however, that everything is finished and there's no conviction and there's no findings, then one could reasonably understand or one could understand why a person in the position of - or both of these persons, in their position, would think, "Well, it doesn't fit within any of the other items and there's no stain on the record of the person concerned", so one can well understand why there might have been the view taken, as it was taken, "Well, there's nothing to disclose", in relation to this item.

PN46

Then we go on to say:

PN47

There have been no adverse findings against Mr Metcher in either of the court proceedings.

PN48

This is another point we wish to make, your Honour, is that neither the branch - it's not the responsibility of the delegate to draw these matters to the attention of Mr Metcher, I don't say that for one moment. I'm simply saying that neither the branch or Mr Metcher were aware of the correspondence from the delegate to Mr Dwyer about the press reports of the incident.

PN49

THE DEPUTY PRESIDENT: What appears to have happened, it's surprising but anyway, what appears to have happened, from looking at the file, is that when there were fresh reports of this incident the Regulation compliance branch wrote to Mr Dwyer, as national secretary, raising some question about whether - is this right, whether this incident should be grounds for considering Mr Metcher's right of entry then, is that what happened?

PN50

MR PUNCH: Indeed, your Honour. The correspondence, which is in the file, indicates that on 12 July the delegate wrote to Mr Dwyer, noting - - -

PN51

THE DEPUTY PRESIDENT: According to this the national president and he was national secretary or something.

PN52

MR PUNCH: Yes, but we all know he was national secretary.

PN53

THE DEPUTY PRESIDENT: Actually, was he not national president of the CEPU, the full organisation, so he was technically correct, wasn't he.

PN54

MR PUNCH: Apologies, your Honour. Yes, he was, at the time, national president of the union and national secretary of the communications division.

PN55

THE DEPUTY PRESIDENT: And Mr Tye was still the national secretary, was he, by that stage?

PN56

MR PUNCH: No, he'd been succeeded by Mr Hicks. So Mr Tye retired. Your Honour, the letter was suggesting that in light of those reports there might be a need to consider the revoking of the right of entry permit then still extant in favour of Mr Metcher. An inquiry was made as to whether Mr Metcher was exercising a workplace right, under his right of entry permit at the time of the incident, which he wasn't.

PN57

THE DEPUTY PRESIDENT: So that correspondence didn't go to Mr Metcher?

PN58

MR PUNCH: Not at all, your Honour, no. As a matter of fact, the first time that - Mr Metcher only became aware of that correspondence when he received it attached to the letter from the delegate to Mr Enzon, of 29 February 2016. That's just a statement of fact, your Honour.

PN59

THE DEPUTY PRESIDENT: It's a few years ago now, I suppose, is all I can say. Usually there'd be something I might say or I might talk to Mr Enright about, but it's almost three years ago now.

PN60

MR PUNCH: Yes, this matter is coming up to three years since it occurred. Of course, as your Honour would anticipate me saying, there has been nothing further arising in relation to Mr Metcher.

PN61

THE DEPUTY PRESIDENT: I'd have to concede that I think that correspondence should have been sent to Mr Metcher. He's a senior official of the organisation and he's affected by it, directly.

PN62

MR PUNCH: Your Honour, I won't make any particular comment about that. Your Honour, so the letter was sent, making enquiries of Mr Dwyer, presumably in his capacity as president of the union itself, although, clearly, Mr Metcher was an officer within the communications division.

PN63

Now, your Honour, what is not in the material that was supplied to us was the text or the letter from Mr Dwyer to Mr Enright, in response to his letter, and I did sort of mention this earlier, perhaps, could that be added to the - I don't know whether it's on the file, or not, presumably it would be, but it wasn't supplied to us, but we have obtained a copy of it from the records of the union but, once again, only discovered after the letter from the delegate to Mr Enzon, on 29 February 2016.

PN64

THE DEPUTY PRESIDENT: After the elections was it discovered?

PN65

MR PUNCH: Your Honour, yes, as a matter of fact it was after the election. What I'd like to - - -

PN66

THE DEPUTY PRESIDENT: I don't think that is on the file.

PN67

MR PUNCH: Well, perhaps it is appropriate to be on the file, your Honour, seeing as Mr Enright does, in fact, respond to it, by his letter to Mr Dwyer, of 29 July, which is on the file and which then refers to Mr Dwyer as the divisional secretary of the communications division.

PN68

What I'd like to do, your Honour - - -

PN69

THE DEPUTY PRESIDENT: Do you want to tender that?

PN70

MR PUNCH: I can do this in two ways. I have here a bundle of all of the correspondence. There's the letter to Mr Enzon, of 29 February, then there's the attachments to it plus then, at the end, here in this bundle, a copy of the letter from Mr Dwyer to Mr Enright, of 26 July 2013, which is the response by him to the letter. I note, for the record, that when one looks at this letter there's no notation that's any cc to Mr Metcher.

PN71

THE DEPUTY PRESIDENT: Do you want to tender all of those?

PN72

MR PUNCH: I think it's probably just easiest to tender that whole bundle so it's then actually complete before your Honour and for the file.

PN73

THE DEPUTY PRESIDENT: P4.

EXHIBIT #P4 BUNDLE OF DOCUMENTS

PN74

MR PUNCH: So here we have a situation where there's clearly been press reports, as there are, from time to time, about matters relating to industrial affairs and the delegates entered into some correspondence with Mr Dwyer. Mr Dwyer has responded but Mr Metcher is not informed. Furthermore, as I've explained to your Honour, the outcome of the proceedings, both the AVO proceedings and the criminal proceedings, and then the time comes for the renewal of the permit. At that stage there's no conviction, there's no adverse findings, the matter has been concluded for over a year. No legal advice is sought therefore it's not disclosed.

PN75

I can only say, on behalf of those who instruct me, that it would have been of some assistance to have had knowledge of the letter from the delegate to Mr Dwyer. The fact that it was not known has certainly had the effect of not concentrating the mind of whether there was an issue. It would be my submission, your Honour, that this is a case that, absent - I'll deal with the question of training in a moment, but absent this particular incident there could be absolutely no doubt that Mr Metcher was a fit and proper person to hold a permit. He'd held one, under various legislative guises for many years, at least 20, and never come under adverse notice and certainly never had any conditions or restrictions placed upon it.

PN76

So far as the incident is concerned, we accept that it occurred in what might be generally described as an industrial setting, but we would also like to draw attention to some submissions that we put, on page 3 of that P1, which also we think are relevant, and it goes to the question your Honour has raised as being the central one.

PN77

It is accepted that the absence of a relevant criminal conviction or record of offences, under industrial legislation, does not necessarily mean that a person is a fit and proper person in every case. However, the absence of any such record must go strongly in favour of the applicant, particularly when the person in question has had a very lengthy career as a trade union official, as is the case with Mr Matcher. To that consideration must be added the following matters; the incident occurred by reason of a disagreement between two officials of the CEPU and did not involve an employer representative or union member -

PN78

Other than those present at the time to witness it or not see it, or whatever:

PN79

The incident did not involve the use of a right of entry permit. The AVO proceedings relating to the incident were settled by consent and without admissions. The criminal charges were ultimately discharged, following Mr Metcher complying with the requirements of a diversion plan, and there has been no incident of this type involving Mr Metcher, either before or since 29 May 2013.

PN80

So, your Honour, even if it was to be said that the incident that occurred goes to the question of whether Mr Metcher is a fit and proper person within the way in which that operates, in terms of the authorities, of which your Honour's decision in Mr Radbar, helpful for an advocate, summarises. Your Honour, we would say that he would be most definitely a person fit and proper to hold one.

PN81

The question of the nondisclosure is explained and in all of the circumstances we would respectfully submit that the non-disclosure, which has, of course, been remedied both in terms of correspondence and now on the record here in this Commission, without any prevarication or attempt to conceal anything, as a result of all of those factors it is not sufficient to otherwise suggest that a permit ought not be granted.

PN82

THE DEPUTY PRESIDENT: Can I just make the point, because you've referred to it a few times. In Mr Radbar's case there was an issue about nondisclosure but the real issue was that Mr Radbar actually, at least at the time of the decision, it might be a bit different now because the decision was upheld on appeal, but at the time of the decision there really wasn't an allegation that Mr Radbar himself had breached the various components of section 513. The argument, from FWBC, was that he, as a branch secretary, should be responsible for all of the sins of the organisation, essentially. It's a bit of a different argument. If you look at my decision and the Full Bench decision, and other decisions, for that matter, the view is that these right of entry requirements relate to the individual rather than - there has to be some connection between the matters that are in section 513 and the activities of the particular official, so it is a bit different.

PN83

I have dealt with other matters there there's been nondisclosure of matters that are not matters in section 513. Some of those nondisclosure, on some occasions, of criminal proceedings or matters that arise from family disputes and that sort of thing. My general view is they're not matters that go to section 513. The only difference, I suppose, in this case, is that it is an industrial matter. It was a matter that arose during the course of Mr Metcher's work as a union official. That's the only difference.

PN84

MR PUNCH: Yes, your Honour, if it had been, as you mention, a dispute which was entirely unrelated to his activities as a union - - -

PN85

THE DEPUTY PRESIDENT: A dispute with a neighbour, for example.

PN86

MR PUNCH: There could be absolutely no doubt that it wouldn't be relevant to the test as to whether he's a fit and proper person to hold an entry permit, with all of the various rights and obligations that flow from holding such a permit.

PN87

In this particular case, what we have is we don't have a conviction or even a finding of guilt. We have here a situation which was clearly a level of disagreement. Something has happened for which Mr Metcher has come forward and accepted responsibility, under a particular plan under Victorian legislation, and that serves the interest of justice, in my submission, in the sense that all of what would have been involved in a trial for all of those concerned was avoided and so that, your Honour, whilst this may seem not necessarily how others might see it, it's as if there's another penalty that might be imposed when, in fact, what occurred has been dealt with and dealt by him in what we would respectfully say is a responsible manner.

PN88

THE DEPUTY PRESIDENT: Yes.

PN89

MR PUNCH: So, your Honour, my submission is that the nondisclosure is in respect of something which is really quite unusual and the nondisclosure, at the application stage, is, with out the benefit of legal advice at that time, a totally understandable process. It has, in fact, been remedied in the course of the written submissions and in these oral submissions, your Honour, and so we would respectfully submit that it should not be regarded as standing in the way of the granting of the permit.

PN90

Your Honour, there is only then left the question of training, in my submissions anyway. What I've said about that is on the first part of page 2 of my submission and the situation there is that Mr Metcher underwent formal training in respect of right of entry matters, under the Fair Work Act in January 2010, although he did have related work health and safety training, in relation to right of entry permits, in December 2012. Now, Mr Metcher tells me that he has a recollection that he did something more about that, but we can't find any records of that so your Honour can't rely on that and I don't rely on it.

PN91

Mr Metcher has been a trade union official for many years and he has had a consecutive series of right of entry permits since at least 1996. He declares that he is familiar with the requirements of the legislation. The only substantive change since he last underwent training was the alteration to section 492, that's in the right of entry area, in relation to the location at which meetings with members may be undertaken in the event of disagreement between the permit holder and the occupier. That's the only change since then.

PN92

I've compared the situation, in relation to Mr Radbar, but each case has to be dealt with on its own stakes, obviously, your Honour. Mr Metcher is certainly prepared to undertake refresher training if the Commission believes that in the circumstances of himself, that ought be done.

PN93

THE DEPUTY PRESIDENT: I suppose the other change is that these issues around right of entry have been the subject of a lot of contested litigation, unfortunately. Most of it relating to the CFMEU but some of it to the CEPU.

PN94

MR PUNCH: Yes, your Honour.

PN95

THE DEPUTY PRESIDENT: There's much more of a focus on these requirements. I think my view is that given it's six years since Mr Metcher undertook training it probably is appropriate for them to be some further training and I'm pretty sure that if I didn't make that a condition that someone else might. So I think I would be inclined to do that. I appreciate that Mr Metcher doesn't use his right of entry, or you can say if this is wrong, Mr Metcher is a branch secretary, he's not an organiser, I imagine, who's exercising his right of entry every day of the week. In any event, I'm not sure that Australia Post, or Telstra necessarily, things might have changed but would necessarily require a right of entry to be produced every time there's a visit to one of their work sites, but I think that given the focus on this, it would be appropriate for there to be a condition put on the right of entry for the training to be undergone, I think.

PN96

MR PUNCH: Well, your Honour, can I say, in relation to that, firstly, your Honour's assumptions accord with the factual position, namely, that Mr Metcher doesn't exercise his right of entry on a regular basis however, from time to time, he will need to do so and it is appropriate that the branch secretary should have a permit.

PN97

THE DEPUTY PRESIDENT: Absolutely.

PN98

MR PUNCH: Once again I would say that he would not normally find that Australia Post personnel would require him to produce it, or that he had to. He is well known and I don't mean that in any negative way at all to Australia Post management and staff. The only thing I might say, your Honour, is whether this matter could be dealt with in another way, and can I just have five seconds to just get some instructions?

PN99

I'm instructed that Mr Metcher is prepared to give the Commission and yourself an undertaking that he will complete the training within three months of today and that perhaps in those circumstances a condition is not required. It's ultimately a matter for the Commission.

PN100

THE DEPUTY PRESIDENT: Well, I had a bit of a look at some of the undertakings that have been required - sorry, some of the conditions that have been required. The condition would look something like that the training, ACTU training we're talking about, I imagine, is that right, the ACTU online?

PN101

MR PUNCH: That's correct, yes.

PN102

THE DEPUTY PRESIDENT: Yes, be undertaken within three months and that the Commission be advised by Mr Metcher once that's been done, by way of a letter. I think that's what I propose but it would be three months after the decision, I need to do a decision and I won't get it done this week, which deals with the various issues and deals with this. Then the new permit would need to be - it then goes back to the regulation compliance branch and the new permit needs to be issued. I understand that the old permit has been returned, so that's not an issue.

PN103

MR PUNCH: It has, your Honour, yes.

PN104

THE DEPUTY PRESIDENT: All right. Do you want to say anything more then?

PN105

MR PUNCH: No, I think that's all, your Honour. Just a moment, please.

PN106

THE DEPUTY PRESIDENT: Sure.

PN107

MR PUNCH: Just a matter of clarification, your Honour. Assuming that your Honour is in a positive frame about granting a right of entry permit, a further one, to Mr Metcher, the condition would be one where he would have to complete the training and notify the Commission but the permit would not be delayed until he'd actually shown that he'd completed the training?

PN108

THE DEPUTY PRESIDENT: That's right. The only delay would be just me doing the decision really.

PN109

MR PUNCH: I thought that was the case, your Honour, but I was asked to clarify that.

PN110

THE DEPUTY PRESIDENT: No. So it's a condition that applies just on the permit. I do need to do a written decision, I think, just because of the focus that's been on these sorts of matters generally speaking. All right, thanks, Mr Punch.

PN111

MR PUNCH: Thank you.

PN112

THE DEPUTY PRESIDENT: So can I just summarise? I have considered the material that's been lodged in the application and the additional submissions that have been made by Mr Punch, both in writing and at the hearing and the material that's been tendered. I'm satisfied that although there was nondisclosure of an industrial incident that had been brought to the attention of the organisation, although not Mr Metcher, by the regulation compliance branch, in 2013, that that nondisclosure is understandable and I'm of the view that it does not - neither the fact that there was nondisclosure or the substance of the matters, that it doesn't prevent Mr Metcher being considered being considered to be a fit and proper person, in accordance with section 512, to hold an entry permit.

PN113

I've considered the matters in section 513 and I don't think that there's any issue, with respect to any of them, other than the fact that Mr Metcher hasn't received the appropriate training for some six years now, so I think it would be appropriate for the condition to be placed on the permit requiring that training to be done and some advice to the Commission once it's undertaken.

PN114

I'll issue a written decision setting out that in more detail. It will be next week before that gets done, but I'll see if I can attend to it as soon as I can. It will then go back to the regulation compliance branch for the issuing of the new permit. Thank you, we're adjourned.

PN115

MR PUNCH: Thank you, your Honour.

ADJOURNED INDEFINITELY [11.20 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P1 SUPPLEMENTARY SUBMISSIONS.......................................... PN7

EXHIBIT #P2 ORIGINAL SUBMISSION DATED 24/03/2016........................ PN17

EXHIBIT #P3 STATUTORY DECLARATION DATED 21/04/2016.............. PN22

EXHIBIT #P4 BUNDLE OF DOCUMENTS...................................................... PN73

Fair Work Commission Transcripts

RE2016/154, Transcript of Proceedings [2017] FWCTrans 1 (18 January 2017)