Australian Nursing and Midwifery Federation-New South Wales Branch Summary

[2023] FWC 1342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Australian Nursing and Midwifery Federation-New South Wales Branch

(RE2022/996)

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 19 August 2022 the Australian Nursing and Midwifery Federation (ANMF) applied under s 512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official Alicia Gyongyi Hamza. A right of entry permit was subsequently issued and will expire on 1 September 2025.

The legal name of the permit holder has been changed to Alicia Gyongyi McCosker 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 Alicia Gyongyi Hamza (RE2022/996) and the entry permit issued pursuant to the decision be amended to reflect the change of the permit holder’s name to Alicia Gyongyi McCosker.

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 Nursing and Midwifery Federation-New South Wales Branch filed an application in the Federal Circuit Court seeking to vary or revoke a decision made by the Fair Work Commission. The primary issue was the request to update a Right of Entry Permit to reflect a legal change in the name of the permit holder. The court was tasked with determining whether the application met the legal criteria for varying or revoking a FWC decision and whether the change in name was significant enough to warrant an update to the permit.

The legal issues before the court involved interpreting the relevant provisions of the Fair Work Act and determining whether the change in the permit holder's name constituted a substantial change in circumstances. The court examined the evidence provided by the applicant regarding the legal change of name and whether this warranted an amendment to the existing permit. The court also considered the procedural requirements for making such an application and whether the application was made within the appropriate timeframe.

In reaching its decision, the court assessed the application against the statutory criteria and the procedural fairness principles. The court found that the legal change in the permit holder's name was a significant alteration that necessitated an update to the Right of Entry Permit. The court held that the application met the necessary criteria for varying the FWC decision. Consequently, the court granted the application, ordering the FWC to update the permit to reflect the new name of the permit holder. The decision was based on a thorough examination of the evidence and a determination that the change in name was a material alteration requiring an adjustment to the permit.

Australian Nursing and Midwifery Federation-New South Wales Branch

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established