FWC Grants Entry Permit to CFMEU Official with Serious Criminal History
The ‘Good’ in the ‘Good, the Bad and the Ugly’ from our podcast on Independent Contractor Update from 27 June 2025.
FWC Grants Entry Permit to CFMEU Official with Serious Criminal History: A Case Study in Rehabilitation and Statutory Discretion
In a notable application of the discretion afforded under section 512 of the Fair Work Act 2009 (FW Act), the Fair Work Commission (FWC) has granted a federal right of entry permit to an official of the Construction, Forestry, and Maritime Employees Union (CFMEU), despite a significant criminal history that included multiple armed robbery convictions.
The Statutory Framework: sections 512 and 513 of the FW Act
Section 512 of the FW Act provides that the Commission may issue a right of entry permit to an official of a union if it is satisfied that the individual is a “fit and proper person” to hold such a permit. Section 513 of the FW Act mandates that certain matters must be taken into account in making this assessment, including:
- Whether the person has received appropriate training (s 513(1)(a));
- Whether the person has been convicted of offences under industrial law or involving violence (ss 513(1)(b)–(c));
- Any prior penalties, suspensions, or cancellations of permits (ss 513(1)(d)–(f)); and
- Any other relevant considerations (s 513(1)(g)).
In this case, several of these subsections were considered live issues—particularly s 513(1)(c), due to the official’s convictions for serious violent offences committed in 2014.
The Offending Conduct and Rehabilitation
In 2014, the official pleaded guilty to six counts of armed robbery involving the use of an imitation weapon and an unused syringe, committed over two days in order to repay a drug-related debt. He was sentenced to five years’ imprisonment, serving three before being released on parole.
The decision recounts that the official became addicted to methamphetamine prior to his offending and was under threat of violence from those to whom he owed money. While the nature of the offences was grave, the Commission also noted that the official voluntarily surrendered to police and demonstrated genuine remorse.
Significantly, during his incarceration, the official underwent drug rehabilitation, ceased all substance use, completed formal training in workplace health and safety, and took steps to rebuild his personal and professional life.
Post-Release Conduct and Union Work
Following his release, the official re-entered the construction industry, initially working in private employment before becoming involved with the CFMEU. He served as a delegate and health and safety representative, before taking on a full-time organiser role in 2022. He was granted a right of entry permit under the Industrial Relations Act 1979 (WA), which he has exercised without complaint since that time.
The CFMEU submitted numerous statements from employers and union colleagues attesting to the official’s professionalism, reliability, and commitment to lawful conduct. The union’s administrator, Mark Irving KC, supported the application, acknowledging the seriousness of the official’s past but emphasising the sustained effort and personal discipline he had demonstrated in turning his life around.
The Commission’s Analysis
The Commission accepted the official’s oral and written evidence as credible and persuasive. While it recognised that the official ’s convictions under s 513(1)(c) FW Act weighed heavily against the application, it found that other relevant matters under s 513(1)(g) FW Act, particularly his rehabilitation, ongoing compliance with entry requirements under the state system, and his commitment to lawful conduct, outweighed those concerns.
Importantly, the Commission emphasised the protective, not punitive, nature of s 512 FW Act, observing that its role is to assess whether the individual now presents a risk in the context of right of entry powers. It found that the official did not.
In particular, the Commission noted:
“When … [the official] was sent to prison, he took responsibility for himself—for his past actions, and for his future—and remade himself into the kind of person that he wanted to be. That person is, in my opinion, a fit and proper person to hold a federal permit.”
While acknowledging its initial reservations about issuing a permit to someone with such a record, the Commission concluded that a rational application of the statutory criteria justified the grant.
Commentary: A Cautious but Clear Precedent
This decision serves as a rare but instructive example of the Commission applying its discretionary power under section 512 of the FW Act to approve an application despite serious past criminal conduct. It reflects a broader legal and social principle: that rehabilitation can be recognised and weighed meaningfully in regulatory decision-making, even where the original conduct was very serious.
From a legal perspective, the case demonstrates how the Commission balances competing statutory considerations under section 513 of the FW Act, particularly where character and conduct are in flux over time. The analysis reinforces the principle that historical convictions, while significant, are not determinative where there is clear evidence of reform and current compliance with legal and professional standards.
However, the case also signals that such decisions will not be made lightly. The Commission clearly required robust, credible evidence of rehabilitation, verified by independent third parties, and a consistent recent history of lawful conduct in similar roles.
This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.