APPLICATION TO ISSUE BRADLEY JOHN HENLEY UPTON WITH A RIGHT OF ENTRY PERMIT WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2026 WAIRC 00426 CORAM : COMMISSIONER C TSANG HEARD : TUESDAY, 16 JUNE 2026 DELIVERED : FRIDAY, 26 JUNE 2026 FILE NO. : ROE 187 OF 2025 BETWEEN : The Construction, Forestry, Mining and Energy Union of Workers Applicant AND (Not Applicable) Respondent CatchWords : Industrial law (WA) – Application for a right of entry permit – Fit and proper person criteria – 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of the official – Whether a right of entry for industrial purposes the official had under an industrial law has ever been revoked, suspended or had conditions imposed on it – Other matters the Commission considers relevant – Interim restraining order Legislation : Industrial Relations Act 1979 (WA) Industrial Relations Commission Regulations 2005 (WA) Restraining Orders Act 1997 (WA) Spent Convictions Act 1988 (WA) Fair Work Act 2009 (Cth) Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Workplace Relations Act 1996 (Cth) Result : Application granted; right of entry permit to issue on and from 1 July 2026 Representation: Applicant : Mr D Rafferty (of counsel) Respondent : Cases referred to in reasons: Application by Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch [2023] FWC 728 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Perth Childrens’ Hospital Contraventions Case) [2017] FCA 491 Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) [2017] FCA 847 Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897 Bechtel (Western Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union-Western Australian Branch [2013] FWC 2498 CFMEU, Construction and General Division, Western Australia Divisional Branch [2026] FWC 1683 Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch [2017] FWC 5824 Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672 Radisich v Buchan and Others [2008] AIRC 896 Registrar, Western Australian Industrial Relations Commission v Margjini and Another [2026] WAIRC 00314 Reasons for Decision On 11 November 2025, the Secretary of the Construction, Forestry, Mining and Energy Union of Workers (CFMEUW) filed a Form 16 – Application to Issue a Right of Entry Permit for Bradley John Henley Upton (Mr Upton) under Division 2G of Part II of the Industrial Relations Act 1979 (WA) (IR Act). The CFMEU, Construction and General Division, Western Australia Divisional Branch (CFMEU) is the federal counterpart of the CFMEUW. The application is to be determined under Division 2G of Part II of the IR Act: Division 2G – Right of entry and inspection by authorised representatives Subdivision 1 – Preliminary 49G. Terms used 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. 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. … Subdivision 3 – Right of entry permits 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. In Registrar, Western Australian Industrial Relations Commission v Margjini and Another [2026] WAIRC 00314 (Margjini), the Commission in Court Session considered the proper approach to the fit and proper person assessment under Division 2G of Part II of the IR Act. The following principles are relevant to this application: Although ss 49O(1) and 49P(2) of the IR Act are based on ss 512 and 513 of the Fair Work Act 2009 (Cth) (FW Act), the provisions are not identical. Under s 513(1)(g) of the FW Act, the Fair Work Commission (FWC) must take into account any other matters it considers relevant. By contrast, under s 49P(1)(b) of the IR Act, the Commission may consider any other matters it considers relevant: Margjini [75]. Section 49P(1)(b) confers a broad discretion on the Commission as to the additional matters it may consider when deciding whether a nominated official is a fit and proper person to hold a right of entry permit: Margjini [55]. Matters of character and reputation may be considered under s 49P(1)(b), provided those matters are directed to the purpose of holding and exercising a right of entry permit and to the rights conferred by Division 2G: Margjini [56]. The fit and proper person criteria in ss 49P(2)(a)–(g) are not to be read restrictively. In particular, matters falling within s 49P(2)(c) may be taken into account in assessing a person’s character and integrity, provided they are considered in the context of the powers and purposes effected by Division 2G, read with the objects of the IR Act: Margjini [62]. The weight given to each of the criterion in s 49P(2) is a matter for the Commission. The assessment requires a balancing of the criteria and any other matters: Margjini [64]. The provisions of Division 2G have a combination of protective purposes, for both permit holders and employers and occupiers; in the interpretation of the relevant provisions of the right of entry scheme, these dual purposes must be kept in mind: Margjini [73]. Division 2G requires the permit process to be applied with rigour, and all relevant considerations are to be taken into account: Margjini [75]. In addition to the matter identified at [4(a)] above, the IR Act treats spent convictions differently from the FW Act. Section 49G(1) defines ‘conviction’ to include a spent conviction as defined in s 3(1) of the Spent Convictions Act 1988 (WA), regardless of ss 13 and 25–27 of that Act. It also includes certain convictions in other jurisdictions even if, under the law of that jurisdiction, the person is permitted not to disclose the conviction. Accordingly, if a nominated official has a spent conviction falling within ss 49P(2)(b) or (c), that spent conviction remains a matter the Commission must consider. Consideration Section 49N(1) and (2) requirements Section 49N(1) states that a 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. I am satisfied that each of the requirements in s 49N(1) has been met, as: The application was made by Michael Buchan (Mr Buchan). Mr Buchan is the Secretary of the CFMEUW. The CFMEUW is an organisation of employees. The Form 16 application states that Mr Upton is an officer of the CFMEUW, holding the office of Assistant Secretary. Section 49N(2) states that the application must comply with any requirements prescribed by the regulations. Regulations 77E(2)–(6) of the Industrial Relations Commission Regulations 2005 (WA), state: (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. I am satisfied that the application complies with the requirements in reg 77E(2)–(6), for the following reasons: The Form 16 application is in the approved form and includes: Mr Upton’s full legal name and address. Mr Upton’s statutory declaration made at Perth on 10 November 2025, declaring that he has provided a recent full-face, passport-size photograph of himself to Mr Buchan and shown his driver’s licence which contains his signature to Mr Buchan, that the information contained in the Form 16 application is true and correct and that he has disclosed all relevant matters that may arise under s 49P. Mr Buchan’s statutory declaration made at Perth on 10 November 2025, declaring that he has made proper enquiries of the matters under s 49P, and having made those enquiries he is satisfied that Mr Upton meets the permit qualification matters in s 49P(2) and has disclosed any matters that might be relevant under s 49P(1)(b). A Certificate of Satisfactory Completion of the ‘WA Right of Entry Permit Holder’ course, dated 26 May 2025, issued to Mr Upton, by Training Manager, Michael Jez, of Unity Training Services. The first iteration of the application (submitted on 6 November 2025), which remains before the Commission and is treated as forming part of, or incorporated into, the Form 16 application, includes a copy of Mr Upton’s photograph, and a legible copy of Mr Upton’s signature, certified by Mr Buchan on 6 November 2025, as a true photograph of Mr Upton and a true representation of Mr Upton’s signature. At the request of the Commission, the CFMEUW filed a National Police Certificate issued by the Police Force of Western Australia that relates to Mr Upton, valid as at 10 December 2025. On 24 November 2025, the Commission published a notice in accordance with reg 77E(6) on the Commission’s website. No submissions were received by the Commission in response to that notice. Section 49O(3) – Current suspension or disqualification Before turning to the fit and proper person assessment under s 49P, it is necessary to consider whether either of the prohibitions in s 49O(3) applies. The Commission cannot issue a permit if, at the time the application is decided, a right of entry Mr Upton holds under an industrial law or work health and safety law is suspended, or Mr Upton is disqualified under such a law from exercising, or applying for, a right of entry under that law. At the hearing of the application, Mr Upton stated under affirmation that he does not have a right of entry under an industrial law or work health and safety law that is presently suspended, and is not presently disqualified under such a law from exercising, or applying for, a right of entry. I am therefore satisfied that s 49O(3) does not prevent the issuing of a permit. Section 49P(2)(a) – Appropriate Training On 16 January 2026, the CFMEUW filed a Supplementary Statutory Declaration of Mr Upton. At paragraphs 35–40, Mr Upton states: 35 I returned my federal permit to the [FWC] on 15 November 2017. My recollection is that it had expired and I did not apply for a new federal permit after the Gorgon Project contraventions. After that I had no federal permit for more than 5 years [sic] since I have had a permit. 36. In 2021, l undertook training with Barclays as part of the CFMEU leadership’s exploration of a more ‘human’ and strategic path forward. Going into these sessions, I was sceptical about the effectiveness of psychological analysis. However, I found it to be quite helpful in assisting me in my approach to my role as a senior union official, as well as in my everyday life. Through these sessions, I learnt practical strategies about how I could deal with conflict diplomatically and developed my oral communication and interpersonal skills. They also opened me up and helped me to talk about more of the effects of deaths and suicides on sites that I had witnessed or had to deal with the aftermath of. Annexed and marked BJHU-1 is a reference letter related to this training. 37. I undertook right of entry training on 22 November 2022 via an online ACTU training course. I successfully completed this course. I understand that this course is a course approved by the [FWC]. 38. Shortly before this, on 10 October 2022, I attended in-person training with Brian Lacy AO, which I found immensely informative and valuable. 39. Mr Lacy took me through the contraventions I had previously engaged in which I have described above. We went through why my conduct breached the law and what I needed to do to make sure I did not engage in similar conduct again or conduct which breached industrial law. I found the session with Mr Lacy incredibly useful. It included practical scenario-based questions and answers to which Mr Lacy provided suggestions for dealing with difficult scenarios I had not considered. Annexed and marked BJHU-2 is a copy of Mr Lacy’s report from this training. 40. As detailed in the Form 16 application, I undertook state [sic] right of entry training on 26 May 2025 via an in-person Unity Training Services training course. I successfully completed this course. I understand that this course is a course approved by the [Commission]. I am satisfied that Mr Upton has received appropriate training about the rights and responsibilities of an authorised representative. Section 49P(2)(a) weighs in favour of a permit issuing. Section 49P(2)(b) – Convictions for an offence against an industrial law In answer to question 3.2 of the Form 16 application, which Mr Upton declared by statutory declaration made on 10 November 2025 is true and correct, Mr Upton states that he has never been convicted of an offence against an industrial law. The National Police Certificate that the CFMEUW filed at the Commission’s request, valid as at 10 December 2025, discloses no convictions. The definition of ‘conviction’ in s 49G(1) extends to spent convictions. At the hearing of the application, counsel for the CFMEUW stated that the Form 16 application was completed with Mr Upton’s full knowledge that the definition of ‘conviction’ included spent convictions. Accordingly, having regard to the above matters, I am satisfied that there is no conviction, including any spent conviction, of the kind referred to in s 49P(2)(b). Section 49P(2)(b) does not weigh against a permit issuing. Section 49P(2)(c) – Convictions for an offence against a law involving entry onto premises, etc In answer to question 3.3 of the Form 16 application, which Mr Upton declared by statutory declaration made on 10 November 2025 is true and correct, Mr Upton states that he has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty, the intentional use of violence against another person, or the intentional damage or destruction of property. Having regard to Mr Upton’s declaration, the National Police Certificate, and counsel for the CFMEUW’s assurance that Mr Upton’s declaration included spent convictions, I am satisfied that there is no conviction, including any spent conviction, of the kind referred to in s 49P(2)(c). Section 49P(2)(c) does not weigh against a permit issuing. Section 49P(2)(d) – Penalties under an industrial law A mandatory consideration under s 49P(2)(d) is whether Mr Upton, or another person, has ever been ordered to pay a penalty under an industrial law in relation to Mr Upton’s actions. Section 49G(1) defines an ‘industrial law’ as including the FW Act. The material before me discloses that Mr Upton and the CFMEU have been ordered to pay penalties under the FW Act in relation to the actions of Mr Upton in the following three matters. Firstly, in Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672 (Wheatstone Case), Mr Upton was ordered to pay penalties of $3,000 and $1,000 for two contraventions of s 500 of the FW Act. The CFMEU was also ordered to pay penalties in relation to conduct arising from Mr Upton’s actions of $15,000 and $5,000 respectively. Secondly, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Perth Childrens’ Hospital Contraventions Case) [2017] FCA 491 (PCH Case), Mr Upton was ordered to pay a penalty of $3,500 for contravening s 340 of the FW Act. The CFMEU was also ordered to pay a penalty of $22,000 in relation to that conduct. Thirdly, in Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897 (Gorgon Penalty Case), Mr Upton was ordered to pay a penalty of $8,100 for contravening s 348 of the FW Act. The CFMEU was also ordered to pay a penalty of $43,200 in relation to conduct arising from Mr Upton’s actions. At paragraphs 17–34 of Mr Upton’s Supplementary Statutory Declaration, he states: 17. During late 2012 and early 2013, the Wheatstone Project near Onslow was kicking off and l was visiting the site on a regular basis to represent CFMEU members and employees who were eligible to be members of the CFMEU. I had ongoing issues with the principal contractor at the site providing adequate facilities for me to have meetings with workers. 18. On 8 October 2012, I allowed my frustration about this issue to get the better of me and used language that was not appropriate, particularly for a permit holder exercising right of entry and of which I am embarrassed and ashamed. 19. I admitted to two contraventions of s 500 of the FW Act in [the Wheatstone Case] as a result of me acting in an improper manner by using inappropriate language on 8 October 2012 and entering a residential part of a premises on 13 February 2013. The Federal Court imposed a penalties [sic] of $4,000 on me for my two contraventions of s 500; and $20,000 on the CFMEU for contraventions which it committed as a result of my conduct. I apologised for my conduct to the Court. I understand that the Federal Court accepted my apology. 20. l also understand that the Federal Court concluded that: a. my language on 8 October 2012 was deplorable, aggressive, racially tainted and abusive; b. whilst my concerns about what was occurring on the site related to circumstances that did exist and caused me frustration and anger, these circumstances did not excuse my behaviour. 21. I agree with the Federal Court’s characterisation of my conduct. It was unacceptable and improper. I regret it. It is conduct that I am committed to never repeating. 22. If an issue ever arose again about the provision of adequate facilities by a contractor for me to have discussions with workers at a site while exercising right of entry, I would seek to engage with the contractor about these. If these discussions did not resolve the matter, I would contact CFMEU legal and industrial officers and ask them to commence dispute resolution proceedings in the Commission under what I understand is the Commission’s power to deal with right of entry disputes between unions and occupiers and employers. 23. In relation to my conduct on 13 February 2013, I understand that the Federal Court found that: a. l went into the ‘wet mess’ area of the site, which was mainly used for residential purposes; b. this contravention was not premeditated, but the result of carelessness on my part; c. if I had known that the area was used mainly for residential purposes, I would not have gone there. 24. I accept my conduct was improper and unlawful. I regret it. I understand that it is essential as a permit holder exercising rights to not go into areas which are residential in nature. 25. Also as a result of this conduct, in Bechtel (Western Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union[-Western Australian] Branch [2013] FWC 2498 [(Permit Conditions Case)], the [FWC] imposed a condition on my permit that I would not be permitted to exercise right of entry at the Project for the balance of the 2013 calendar year, and that clear obligations be placed on me if I chose to exercise right of entry from 1 January 2014 until the conclusion of the Project. My understanding is that the [FWC] also expressed a concern in that matter that the employer had alleged that on 20 and 21 March 2013 at the same Project a plumber and a boilermaker attended discussions I conducted when they were not eligible to be members of the CFMEU. I complied with those conditions. 26. In May 2017, in [the PCH Case], the Federal Court ordered that I pay a penalty of $3,500 and the CFMEU a penalty of $22,000 for a contravention I committed on 30 January 2013 at a John Holland controlled building site at the Perth Children’s Hospital. My contravening was of s 340 of the FW Act by taking adverse action against John Holland. The contravening was the result of me attending a safety meeting of employees on the site with other CFMEU officials where safety issues were raised and then discouraging employees from re-entering site after attending the meeting to start work at their rostered start times. 27. My conduct was not acceptable. I regret it. Discouraging employees from attending for work was not lawful and not an acceptable or appropriate way to deal with safety issues that had been raised. I am committed to not repeating this conduct. 28. If a similar situation arose in the future, I would use dispute resolution processes available under applicable enterprise agreements or employ the issue resolution procedure applicable under the Work Health and Safety Act 2020 (WA) (WHS Act). Alternatively, I would contact the regulator under the WHS Act to seek to get their assistance in resolving the issue. If I had any difficulties or concerns, I would contact the CFMEU’s legal and industrial officers for advice. 29. In September 2017, in Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) [2017] FCA 847, the Federal Court found that while exercising rights on Barrow Island on the Gorgon Project on 3 December 2015, that I: a. contravened s 346(a) of the FW Act by threatening to take adverse action against non-union members and taking adverse action against non-union employees (at least one of whose employment was prejudiced because he felt intimidated by the threat) who were present in a crib room with other employees whom I had addressed; b. contravened s 348 by making an unconscionable threat to non-union employees with intent to coerce them by threatening to put their names on the back of toilet doors, subject them to standover tactics and telling other workers who the non-union employees ‘fucking dog cunts are’; c. contravened s 500 by acting improperly by engaging in the conduct described above. 30. On 6 November 2017, in Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch [2017] FWC 5824, Deputy President Binet refused to issue me with a new federal permit, as a direct result of the contraventions detailed in paragraph 19, 26 and 29 above. 31. In March 2018, in [the Gorgon Penalty Case], the Federal Court imposed a penalty of $8,100 on me for my conduct and $43,200 on the CFMEU for its contraventions which were caused by my conduct. 32. I understand that the Federal Court set out that: a. the language used was foul and calculated to send a strong message to all employees that continued membership of a union was essential [sic] obtaining continued employment at sites like the Gorgon Project; b. the language I used was intended to intimidate employees into accepting that they needed to be union members if they wanted to work; c. my conduct in telling employees their names might be put on the back of toilet doors was particularly intimidatory; d. my conduct breached the standards expected of a union organiser and there was no warrant or excuse for what I did; e. my conduct was in the middle range and above of objective seriousness. 33. I regret my conduct. It was unacceptable. I should never have said what I said. There was no excuse for my actions. I understand that freedom of association is important and my comments at the meeting were contrary to freedom of association and unlawful. 34. No similar conduct has occurred in the 10 years that have passed between then and now. I am committed to ensuring that this kind of conduct never occurs again. I have learnt a great deal in the intervening period. The penalties imposed on Mr Upton, and on the CFMEU in relation to his actions, are a significant adverse consideration under s 49P(2)(d). I am satisfied that s 49P(2)(d) weighs against a permit issuing. Section 49P(2)(e) – Revocation, suspension or conditions on right of entry permit Section 49P(2)(e) requires the Commission to consider whether a right of entry permit issued to Mr Upton has been revoked, suspended or made subject to conditions. The term ‘right of entry permit’ is defined in s 49G(1) to mean a permit issued by the Commission under Subdivision 3. Mr Upton presently holds right of entry permit ROE 79/2014, which expires on 30 June 2026. At paragraph 44 of Mr Upton’s Supplementary Statutory Declaration, he states: 44. I have also been an ‘authorised representative’, issued with an authority by the Registrar under the [IR Act] since 2008. The authority issued to me by the Registrar has not been revoked, made the subject of conditions or otherwise had any action taken against it. I am satisfied that s 49P(2)(e) does not weigh against a permit issuing. Section 49P(2)(f) – Revocation, suspension or conditions on right of entry under an industrial law or a work health and safety law Section 49P(2)(f) requires the Commission to consider whether a right of entry for industrial or work health and safety purposes Mr Upton had under an industrial law or a work health and safety law has ever been revoked, suspended or had conditions imposed on it. Section 49G(1) defines an ‘industrial law’ as including the FW Act. The Fair Work (Transitional Provisions and Consequential Amendments Act 2009 (Cth) provides in Schedule 14 – Right of entry, that: A permit issued under the Workplace Relations Act 1996 (Cth) (WR Act) has effect as if it were a permit issued under the FW Act. A reference in s 510(1)(d) of the FW Act to a pecuniary penalty ordered under the FW Act includes a reference to a pecuniary penalty ordered under the WR Act. Any suspension or revocation of, or imposition of conditions on, an entry permit under the WR Act is taken to have been done under the FW Act. Accordingly, the federal permits held by Mr Upton are a right of entry for industrial purposes under an industrial law. Therefore, it is necessary to consider the conditions imposed on those federal permits. Firstly, a federal permit held by Mr Upton was subject to a condition imposed pursuant to consent orders in Radisich v Buchan and Others [2008] AIRC 896. The condition restricted Mr Upton from entering or remaining on construction sites in the company of, or in concert with, Joseph McDonald, except in specified circumstances. The material before me indicates that this was a generic condition imposed on CFMEU permit holders. I give this matter limited adverse weight. Secondly, in the Permit Conditions Case, the FWC imposed conditions on Mr Upton’s federal permit. Those conditions prevented Mr Upton from exercising right of entry at the Wheatstone Project for the balance of the 2013 calendar year and imposed further obligations if he exercised right of entry at that project from 1 January 2014 until the conclusion of construction. Those conditions arose from conduct connected with Mr Upton’s exercise of entry rights. I give this matter significant adverse weight. Thirdly, Mr Upton’s federal permits ([2023] FWC 728 and [2026] FWC 1683 at [44]–‍[45] below) are subject to the condition that Mr Upton does not exercise rights under Subdivision AA of Division 2 of Part 3-4 of the FW Act until he completes appropriate training in relation to that subdivision and files a copy of the training completion certificate in the FWC. The material before me indicates that this is a standard condition imposed on CFMEU permits, which has practical application to the Manufacturing Division of the CFMEU. I give this matter limited adverse weight. Overall, I am satisfied that s 49P(2)(f) weighs against a permit issuing. Section 49P(2)(g) – Disqualification under an industrial law or a work health and safety law There is no material before me indicating that Mr Upton 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. The FWC’s refusal to issue Mr Upton with a federal right of entry permit ([2017] FWC 5824 (at paragraph 30 of Mr Upton’s Supplementary Statutory Declaration at [27] above)), is an adverse matter. However, the material before me does not indicate that it was a disqualification of the kind referred to in s 49P(2)(g). I consider that refusal under s 49P(1)(b). I am satisfied that s 49P(2)(g) does not weigh against a permit issuing. Section 49P(1)(b) – Any other matters the Commission considers relevant The CFMEUW relies on the fact that Mr Upton has previously been assessed by the FWC as a fit and proper person to hold a federal right of entry permit. The Form 16 application refers to a decision dated 24 April 2023, being Application by Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch [2023] FWC 728. By a letter dated 15 May 2026, the CFMEUW advised the Commission that, on 11 May 2026, the FWC issued reasons for decision ordering that Mr Upton be issued with a federal right of entry permit on the basis that he was fit and proper to hold such a permit: CFMEU, Construction and General Division, Western Australia Divisional Branch [2026] FWC 1683. The FWC decisions are relevant, but they are not determinative. Sections 49O and 49P of the IR Act require the Commission to undertake its own assessment, and Margjini [75] makes clear that the Division 2G permit process must be applied with rigour. The material provided to the FWC also disclosed that Mr Upton had been the subject of an interim restraining order made under the Restraining Orders Act 1997 (WA). The material before me indicates that the order was made in Mr Upton’s absence, arose from allegations made by an Employee Relations Officer with whom Mr Upton had interacted in the course of work, was denied by Mr Upton, and was subsequently cancelled after the complainant withdrew her application. There was no conviction or final finding against Mr Upton arising from that matter. I do not consider that the interim restraining order is required to be disclosed under s 49P(2)(c). However, given the breadth of s 49P(1)(b), I have considered whether it is otherwise relevant to Mr Upton’s character, reputation, or fitness to hold a permit. In circumstances where the order made was interim, made in Mr Upton’s absence, denied by Mr Upton, withdrawn, cancelled, and did not result in any conviction or finding of wrongdoing, I give it no adverse weight. The adverse matters are significant. Mr Upton has been ordered to pay penalties under the FW Act for conduct connected with industrial activity and, in some instances, with the exercise of rights as a permit holder. The conduct included improper conduct while exercising entry rights, entry into an area found to be residential in nature, adverse action against an employer, and coercive and intimidating conduct directed at non-union employees. The language used in one instance was found to be abusive, threatening and racially tainted. The conduct in the Gorgon Penalty Case was inconsistent with freedom of association. These matters weigh against a finding that Mr Upton is a fit and proper person to hold a permit. The federal permit conditions imposed in the Permit Conditions Case also weigh against a permit issuing because they arose from concerns about the exercise of right of entry powers. The FWC’s refusal in [2017] FWC 5824, to issue Mr Upton a federal permit (at paragraph 30 of Mr Upton’s Supplementary Statutory Declaration at [27] above), is also an adverse matter. These matters are directly relevant because a right of entry permit confers significant statutory powers and depends upon the holder exercising them lawfully and responsibly. However, those adverse matters must be weighed against the whole of the evidence. The contravening conduct occurred between 2012 and 2015. The passage of time is not, by itself, determinative. Nor do I treat the absence of further contraventions as conclusive, particularly given Mr Upton’s evidence that he did not hold a federal permit for a period of more than five years. Nevertheless, the absence of comparable misconduct over a substantial period is a relevant matter. Mr Upton has completed the WA Right of Entry Permit Holder training course and has also completed other training directed at conflict management, communication, and the lawful exercise of entry rights. He has acknowledged the wrongfulness of his past conduct in specific terms, accepted the findings made against him, expressed remorse, and identified lawful alternative courses he would take if similar issues arose in the future. I give that evidence weight. A fit and proper person for the purposes of s 49O is not necessarily a person with an unblemished record. The question is whether, having regard to the statutory criteria and any other relevant matters, the Commission is presently satisfied that the nominated official is a fit and proper person to hold and exercise the powers conferred by a right of entry permit. In this case, the seriousness of Mr Upton’s past conduct weighs against a permit issuing. However, the age of the conduct, the absence of comparable misconduct over a substantial period, the training undertaken, the evidence of insight and remorse, and the recent federal permit decisions together persuade me that Mr Upton is presently a fit and proper person to hold a right of entry permit. I have considered whether the permit should be issued subject to conditions under s 49O(2). In particular, I have considered whether conditions directed to further training, supervision, reporting or restrictions on the exercise of entry rights at particular sites are appropriate. Although Mr Upton’s past conduct was serious, I am not satisfied that imposing conditions is necessary in the circumstances. The contravening conduct occurred between 2012 and 2015, and there has been no comparable misconduct over a substantial period. I distinguish this application from one in which the most recent contravention is more proximate, or in which the permit history includes an actual suspension. Mr Upton has undertaken targeted training directed to right of entry obligations, conflict management and lawful alternatives to the conduct previously found to contravene an industrial law. He has accepted the findings made against him, expressed remorse in specific terms and identified lawful courses he would take if similar circumstances arose in the future. I also give weight to the recent FWC decisions assessing him as fit and proper to hold a federal right of entry permit. In those circumstances, the statutory obligations applying to authorised representatives, together with the consequences that would follow from any future misuse of entry rights, are sufficient to serve the protective purposes of the right of entry scheme identified in Margjini [73] (at [4(f)] above). I am not satisfied that any additional condition would materially advance those purposes. Conclusion The fit and proper person criteria point in different directions. Section 49P(2)(a) weighs in favour of a permit issuing. Sections 49P(2)(b), (c), (e) and (g) do not weigh against a permit issuing. Sections 49P(2)(d) and (f) weigh against a permit issuing, given the penalties imposed in relation to Mr Upton’s actions and the conditions imposed on his federal right of entry permits. However, for the reasons given above, the weight of those adverse matters is reduced by the age of the conduct, the absence of comparable misconduct over a substantial period, the training undertaken, Mr Upton’s evidence of insight and remorse, and the recent FWC decisions. Having considered each of the fit and proper person criteria in s 49P(2), and the other matters I consider relevant under s 49P(1)(b), I am satisfied that Mr Upton is a fit and proper person to hold a right of entry permit. I have considered whether the permit should issue subject to conditions under s 49O(2). For the reasons given above, I am not satisfied that imposing conditions is necessary. The application is granted. As Mr Upton’s current right of entry permit ROE 79/2014 expires on 30 June 2026, I will order that a right of entry permit issue to Mr Upton on and from 1 July 2026.