Australian Rail, Tram and Bus Industry Union
[2024] FWC 1482
•7 JUNE 2024
| [2024] FWC 1482 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 512 – Right of entry; s 603 Varying and revoking FWC’s decisions
Australian Rail, Tram and Bus Industry Union
(RE2024/508)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 7 JUNE 2024 |
Application for a right of entry permit for Mr Matthew Kyle Purcell – whether a fit and proper person to hold an entry permit under the Act – satisfied Mr Purcell is a fit and proper person to hold a permit – order revoking lost entry permit issued – permit issued.
The Australian Rail, Tram and Bus Industry Union (RTBU) applied to the Commission under s 512 of the Fair Work Act 2009 (Cth) (Act) for a right of entry permit to be issued to its official, Mr Matthew Kyle Purcell.
Mr Purcell was issued an entry permit on 16 May 2023,[1] which will expire on 16 May 2026. In a statutory declaration dated 30 April 2024, Mr Purcell declared he realised he had lost his permit on 28 March 2024.[2]
The Commission does not appear to have general power under the Act to replace a lost
or stolen entry permit. For Mr Purcell to hold a valid permit and to be able to produce it when
requested by an occupier to do so, the existing permit, which has been misplaced, must be
revoked and an application for a new permit to be issued must be, and as earlier noted has been made.
Consideration
In support of its application, the RTBU filed declarations by Mr Purcell and Mark Diamond, National Secretary of the RTBU’s National Branch (the Declarations).
Permit qualification matters – s 513(1)(a), (b), (c), (d), (e) and (f)
According to the Declarations and the material which accompanies them, Mr Purcell
has:
· received appropriate training about the rights and responsibilities of a permit holder
by undertaking a course of training on the subject of federal right of entry conducted by the RTBU on 9 May 2024 (s 513(1)(a) of the Act);[3]
· never been convicted of an offence against an industrial law (s 513(1)(b) of the
Act);[4]
· 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;[5]
· never been ordered to pay a penalty under this Act or any other industrial law in
relation to action taken by him, nor has any other person (s 513(1)(d) of the Act);[6]
· not, save as indicated below, had any entry permit issued under Part 3-4 of the Act
or similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permits (s 513(1)(e) of the Act). Mr Purcell’s lost permit had a condition as follows: “Matthew Kyle Purcell must not exercise rights under Subdivision AA of Division 2 of Part 3-4 of the Act until he has completed appropriate training in relation to that subdivision and has filed a copy of the training completion certificate if the Fair Work Commission.”[7]
· not had cancelled, suspended or imposed conditions on any right of entry for
industrial or occupational health and safety purposes that Mr Purcell 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);[8] and
· 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).[9]
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 Purcell 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 Mr Purcell is a fit and proper person to hold an entry permit.
Mr Purcell’s existing permit
As mentioned earlier, the Commission does not have a general power under the Act to
replace an entry permit that is lost or stolen. A revocation of the existing permit is required, and a new permit may be issued subject to the requirements in s 512 of the Act.
The relevant power to revoke is found in s 603 of the Act, which relevantly provides:
“603 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;
…”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)). Subsection 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) of the Act 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 the discretion to revoke the
entry permit issued by decision of the Commission to Mr Purcell in RE2023/327.
Conclusion
Pursuant to s 603 of the Act, the entry permit RE2023/327 issued to Mr Purcell by
decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR775754.
Taking into account the permit qualification matters, and for the reasons earlier stated,
I am satisfied that Matthew Kyle Purcell is a fit and proper person to hold an entry permit. The application by the RTBU for an entry permit to be issued to Mr Purcell is granted.
A permit will be separately issued.
DEPUTY PRESIDENT
<PR775748>
[1] RE2023/327.
[2] Statutory Declaration of Mr Matthew Kyle Purcell dated 30 April 2024 at [6].
[3] Form F42, Declaration by Mr Matthew Kyle Purcell dated 9 May 2024 at (a); Form F42, Declaration by Mark Diamond
dated 9 May 2024 at 4; RTBU Certificate of Completion of Matthew Purcell dated 9 May 2024.
[4]Ibid at (b); Ibid at 2(a).
[5] Ibid at (c); Ibid at 2(b).
[6] Ibid at (d); Ibid at 2(c).
[7] Ibid at (e); Ibid at 2(d).
[8] Ibid at (f); Ibid at 2(e).
[9] Ibid at (g); Ibid at 2(f).
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