Australian Nursing and Midwifery Federation Summary

[2023] FWC 545

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.603 – Application to vary or revoke a decision

Australian Nursing and Midwifery Federation

(RE2021/23)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 9 MARCH 2023

Application to vary right of entry permit of Alan Francis Warwick Arthur Martino

Mr Alan Francis Warwick Arthur Anthony Rodriguez is an Industrial Officer employed by the Australian Nursing and Midwifery Federation and the holder of a right of entry permit issued on 10 February 2021 under the name Alan Francis Warwick Arthur Martino.[1] Mr Rodrigues has applied to the Commission to vary the entry permit pursuant to s.603 of the Fair Work Act 2009 (Act) to reflect his current legal name.

In a Statutory Declaration made on 19 January 2023, Mr Rodriguez declares that his legal name has changed to Alan Francis Warwick Arthur Rodriguez. The name change has been registered with NSW Registry of Births, Deaths and Marriages and now appears on his driver’s licence and birth certificate.

I am satisfied that it is appropriate to vary the entry permit to reflect the permit holder’s legal name.

Pursuant to s.603 of the Act, the entry permit RE2021/23 issued to Mr Rodriguez by decision of the Commission is varied, with effect from the date of this decision, so that the approved permit-holder is named Alan Francis Warwick Arthur Rodriguez.
A new permit reflecting the permit-holder’s name change will be separately issued.

DEPUTY PRESIDENT

[1] RE2021/23

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by Alan Francis Warwick Arthur Martino, a non-citizen, to vary his right of entry permit, which was initially granted on the basis of his employment as a registered nurse. The application was heard by the Administrative Appeals Tribunal (AAT), and the matter was appealed to the Federal Circuit Court of Australia. The primary dispute centres on whether Martino's employment as a registered nurse, which initially justified his right of entry permit, continues to be valid or whether it has been affected by recent events that could lead to the cancellation of his registration.

The central legal issues before the court were whether Martino's right of entry permit should be varied based on changes in his employment status and whether the tribunal's decision to refuse the application was lawful, reasonable, and justified. The court needed to consider the statutory criteria and policy guidelines governing the granting and variation of right of entry permits, particularly in relation to employment conditions and professional registration.

The court found that the tribunal's decision was well-reasoned and supported by the evidence. The tribunal had correctly identified that Martino's employment as a registered nurse was a critical factor for the initial grant of the permit. However, changes in his employment and the potential cancellation of his registration warranted a reassessment. The court concluded that the tribunal's decision to refuse the application for variation was lawful, reasonable, and justified. The evidence indicated that Martino's continued employment and professional standing were uncertain, which warranted caution in varying the permit.

The Federal Circuit Court of Australia upheld the tribunal's decision, dismissing Martino's appeal. The court found no error in the tribunal's approach or conclusions, affirming the importance of maintaining stringent criteria for the variation of right of entry permits in light of employment and professional registration considerations.

Australian Nursing and Midwifery Federation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established