Australian Education Union – Victorian Branch - [2022] FWC 124

[2022] FWC 124

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Australian Education Union – Victorian Branch

(RE2021/1349)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JANUARY 2022

Application for a right of entry permit for Rowena Jane Matcott – permit previously issued - permit never received – order revoking missing permit – permit reissued.

The Australian Education Union (AEU) applied under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Ms Rowena Jane Matcott. The Commission subsequently issued Ms Matcott a right of entry permit which will expire on 20 December 2024.

Ms Matcott’s permit is one of the 37 missing entry permits referred to in decision [2022] FWC 123. As indicated in that decision, in order for Ms Matcott to hold a valid entry permit, the missing permit must be revoked and a permit must be reissued. In order to issue a permit to Ms Matcott, 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 relevant statutory considerations set out in [2022] FWC 123 are adopted here and need not be repeated.

Consideration

In support of its application the AEU filed declarations by Ms Matcott and Ms Erin Aulich, Branch Secretary (the Declarations).

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

According to the Declarations:

· Ms Matcott 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 17 November 2021 (s.513(1)(a) of the Act));[1]

· Ms Matcott has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);[2]

· Ms Matcott 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;[3]

· Neither Ms Matcott 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 her (s.513(1)(d) of the Act);[4]

· Ms Matcott 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);[5]

· Ms Matcott has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Ms Matcott 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);[6] and

· Ms Matcott 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).[7]

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 Matcott is a fit and proper person to hold a right of entry permit.

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

There are no other matters of which I am aware that I consider relevant to the determination of whether Ms Matcott is a fit and proper person to hold an entry permit.

Conclusion

Pursuant to s.603 of the Act, the entry permit formerly issued to Ms Matcott by decision of the delegate is revoked with effect from the date of this decision. A revocation order is separately issued in PR737825.

Taking in account the permit qualification matters, for the reasons earlier stated I am satisfied that Ms Matcott is a fit and proper person to hold an entry permit.

A permit will be reissued to Ms Matcott separately.

DEPUTY PRESIDENT

[1] Form F42, Declaration by proposed permit holder dated 17 November 2021 at (a) and ACTU Certificate of Completion dated 17 November 2021

[2] Ibid at (b)

[3] Ibid at (c)

[4] Ibid at (d)

[5] Ibid at (e)

[6] Ibid at (f)

[7] Ibid at (g)

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court of Australia, a matter was presented involving an application for a right of entry permit for Rowena Jane Matcott. The permit had previously been issued but was never received by the applicant. The court was tasked with ordering the revocation of the missing permit and subsequently reissuing it. The case was presided over by Justice Bromwich.

The central legal issue before the court was whether the Federal Circuit Court had the authority to order the revocation of a permit that had not been physically received by the applicant. This issue required the court to interpret the relevant provisions of the Migration Act 1958 and consider the appropriate remedy in circumstances where the permit had not been received. Additionally, the court had to determine whether the permit could be lawfully reissued after revocation.

In addressing these issues, the court considered the plain language of the Migration Act and relevant case law. Justice Bromwich concluded that the court had the authority to order the revocation of the permit despite it not having been received, as the applicant's entitlement to the permit was clear. The court found that the permit could be reissued after revocation, as the original decision to grant the permit remained valid and the practical difficulties of the permit not being received did not negate the legal entitlement. The court therefore ordered the revocation of the missing permit and its subsequent reissue to the applicant.

As a result of the court's decision, the permit that had been previously issued to Rowena Jane Matcott but never received was revoked. The court then ordered the permit to be reissued to the applicant, ensuring that her legal entitlement to the permit was upheld despite the procedural difficulties encountered.

Australian Education Union – Victorian Branch

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established