Australian Municipal, Administrative, Clerical and Services Union -Queensland Together Branch

[2022] FWC 136

[2022] FWC 136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Australian Municipal, Administrative, Clerical and Services Union -Queensland Together Branch

(RE2021/1291)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 28 JANUARY 2022

Application for a right of entry permit for Christopher James Horacek – permit previously issued - permit never received – order revoking missing permit – permit reissued.

1. The Australian Municipal, Administrative, Clerical and Services Union (ASU) applied under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Mr Christopher James Horacek. The Commission subsequently issued Mr Horacek a right of entry permit which will expire on 16 December 2024.

1. Mr Horacek’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 Mr Horacek 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 Mr Horacek, I need to be satisfied that he 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

1. In support of its application ASU filed declarations by Mr Horacek and Mr Alexander Scott, Branch Secretary (the Declarations).

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

1. According to the Declarations:

·   Mr Horacek 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 18 October 2021 (s.513(1)(a) of the Act));[1]

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

·   Mr Horacek 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 Mr Horacek 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);[4]

·   Mr Horacek 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]

·   Mr Horacek has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Horacek 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

·   Mr Horacek 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]

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

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

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

Conclusion

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

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

1. A permit will be reissued to Mr Horacek separately.

DEPUTY PRESIDENT

[1] Form F42, Declaration by proposed permit holder dated 17 November 2021 at (a) and ASU Certificate of Completion dated 18 October 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

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