Australian Education Union-New South Wales Teachers Federation (NSWTF) Branch

[2023] FWC 1212

[2023] FWC 1212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Australian Education Union-New South Wales Teachers Federation (NSWTF) Branch

(RE2023/285)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 30 MAY 2023

Application for a right of entry permit for Annette Brenda Bennett – whether fit and proper person to hold an entry permit under the Act – satisfied Ms Bennett is a fit and proper person to hold a permit – permit issued.

1. The Australian Education Union (AEU) has applied to the Fair Work Commission (Commission) under s 512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Annette Brenda Bennett. Ms Bennett is employed by the AEU in its New South Wales Teachers Federation (NSWTF) Branch as an Industrial Officer.

1. Ms Bennett was issued an entry permit on 24 January 2020.[1] The permit expired on 24 January 2023 and should have been returned on 31 January 2023 in accordance with s 517 of the Act. The expired permit was received by the Commission on 3 April 2023. In a Statutory Declaration dated 27 April 2023, Ms Bennett declared that she was unaware that her entry permit had expired until it was pointed out to her and she continued to exercise right of entry after her permit had expired.

1. In order for Ms Bennett to be issued an entry permit I need to be satisfied that she is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters. The applicable principles for determining right of entry permit applications under s 512 are well settled and not controversial. These need not be restated.

Consideration

1. In support of its application the AEU filed declarations by Ms Bennett and Ms Maxine Sharkey, NSWTF AEU Branch Secretary (the Declarations).

Permit qualification matters – s 513(1)(a), (b), (c), (d), (e) and (f)

1. According to the Declarations:

·   Ms Bennett has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 21 September 2022 (s 513(1)(a) of the Act));[2]

·   Ms Bennett has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[3]

·   Ms Bennett has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s 513(1)(c) of the Act;[4]

·   Neither Ms Bennett nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him (s 513(1)(d) of the Act);[5]

·   Ms Bennett has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s 513(1)(e) of the Act);[6]

·   Ms Bennett has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Ms Bennett held under a State or Territory industrial law or a State or Territory occupational health and safety law (s 513(1)(f)(i) of the Act);[7] and

·   Ms Bennett has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s 513(1)(f)(ii) of the Act).[8]

1. I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. These matters weigh in favour of a conclusion that Ms Bennett is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s 513(1)(g)

1. Section 513(1)(g) of the Act requires the Commission to take into account any other matter it considers relevant. A matter will be relevant if it can rationally affect the assessment of whether the proposed permit holder is a fit and proper person to hold an entry permit. Matters that may be relevant are matters that relate to the personal characteristics of the proposed permit holder and are pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.

1. As noted above, Ms Bennett continued to exercise right of entry whilst she was not a permit holder under the Act. She also failed to return the expired permit to the Commission within the time prescribed by s 517 of the Act. Ms Bennett’s failure to keep track of the date on which her entry permit expired, the continued exercise of entry rights for a period thereafter and her failure to return the expired permit as required, shows both organisational and personal failing.  Organisationally I would expect that as an applicant for permits to be issued to its many officials, the AEU would have systems in place to track the identity of the officials to whom permits have been issued and the dates on which each such permit expiries, so that it could instruct its officials appropriately.  At a personal level, the failure shows inattention to important obligations – that expired permits be returned as required, that entry rights not be sought to be exercised when no such right exists and not to hold oneself out as a person who is a permit holder – by purporting to exercise entry rights - when one is not.  However, I accept that Ms Bennett’s use of the expired entry permit to exercise entry rights and its return outside the statutory timeframe was unintentional rather than deliberate. As such, I do not consider the inadvertence to be so significant as to render Ms Bennett a person who is not fit and proper to hold a right of entry permit. Ms Bennett will have learned a lesson about exercising diligence in relation to the expiry of any future entry permit, and both she and the AEU will doubtless now take more care in ensuring compliance with all of the provisions of the right of entry scheme in Part 3-4 of the Act.

Conclusion

1. Taking into account the permit qualification matters, for the reasons earlier stated I am satisfied that Annette Brenda Bennett is a fit and proper person to hold an entry permit. The application by the AEU for an entry permit to be issued to Ms Bennett is granted.

1. A permit will be separately issued.

DEPUTY PRESIDENT

[1] RE2019/1214

[2] Form F42, Declaration by proposed permit holder dated 30 March 2023 at (a) and ACTU Federal Right of Entry Training Certificate of Completion dated 28 March 2023

[3] Ibid at (b)

[4] Ibid at (c)

[5] Ibid at (d)

[6] Ibid at (e)

[7] Ibid at (f)

[8] Ibid at (g)

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