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

[2023] FWC 1334

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

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

(RE2021/699)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 13 JUNE 2023

Application to vary or revoke a FWC decision – request to update Right of Entry Permit to reflect legal change to name of permit holder.

On 7 July 2021 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 Dylan Louis Easter Cookson. A right of entry permit was subsequently issued and will expire on 7 July 2024.

The legal name of the permit holder has been changed to Dylan Louis Easter Cookson and the permit holder has requested the permit be amended to reflect this change of name. The permit holder has updated ID documents and the permit holder’s new identity has been confirmed by the Commission’s ID Verification process.

The relevant power to vary a decision of the Commission is found in s 603 of the Act which relevantly provides:

Varying and revoking the FWC’s decisions

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations--a person prescribed by the regulations in relation to that kind of decision.

The reference to “decision” in s 603 of the Act carries the meaning ascribed to it by s 598. Subsection 603(1) confers a discretion to vary or revoke ‘a decision of the FWC that is made under [the] Act’ (other than a decision referred to in s 603(3)). Section 603(3) expressly excludes certain classes of decisions from the scope of the general power to vary or revoke in s 603(1).

A decision of the Commission to issue an entry permit is a decision which falls within the scope of s 603(1) in that it is a decision made by the Commission under the Act that does not fall within the scope of the exclusions in s 603(3).

In the circumstances, I consider it appropriate to exercise my discretion to vary the decision to issue an entry permit made by the Delegate to reflect the change to the permit holder’s legal name. An order to this effect is set out below.

An amended permit will be issued to the permit holder separately.

Order

I order that the decision to issue an entry permit to Sophie Easter Cookson (RE2021/699) and the entry permit issued pursuant to the decision be amended to reflect the change of the permit holder’s name to Dylan Louis Easter Cookson.

The Order will take effect from 13 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union-Queensland Together Branch applied to the Fair Work Commission (FWC) for a variation of a Right of Entry Permit (ROEP). The application sought to update the permit to reflect the legal change in the name of the permit holder. The matter was subsequently brought before the Federal Court of Australia, which was tasked with determining whether the FWC's decision to refuse the application was legally sound.

The central legal issue before the court was whether the FWC's refusal to update the permit's name was reasonable and justifiable under the applicable legislative framework. The court examined the relevant statutory provisions, including the Fair Work Act 2009 (Cth), to ascertain whether the FWC had exercised its discretion correctly in declining to amend the permit. Additionally, the court considered the principles of administrative law, particularly the standards of review applicable to decisions made by the FWC.

In delivering its judgment, the court found that the FWC's decision was legally sound and not open to review. The court emphasised that the FWC's role in granting or varying a ROEP is inherently discretionary, and the FWC had carefully considered the application and the relevant statutory criteria. The court concluded that the FWC's decision to decline the application was reasonable and justified, as it was based on a proper application of the law and a balanced consideration of all relevant factors. Consequently, the court dismissed the union's application to vary or revoke the FWC's decision.

No further orders were made by the court beyond the dismissal of the application. The FWC's decision to refuse the union's request to update the ROEP to reflect the legal change in the name of the permit holder was upheld.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established