“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
[2024] FWC 1635
•26 JUNE 2024
| [2024] FWC 1635 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 512—Right of entry; s 603—Varying and revoking FWC’s decisions
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(RE2024/584)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 26 JUNE 2024 |
Application for a right of entry permit for Peter Richard Albert Bauer – whether a fit and proper person to hold an entry permit under the Act – satisfied Mr Bauer is a fit and proper person to hold a permit – order revoking lost entry permit issued – permit issued.
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) applies 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, Peter Richard Albert Bauer. Mr Bauer is the AMWU’s South Australian State Secretary.
Mr Bauer was issued an entry permit on 12 January 2024, which will expire on 12 January 2027. In a statutory declaration dated 31 May 2024, Mr Bauer declared that he identified his permit was missing from his wallet on Friday, 24 May 2024.[1] Mr Bauer declared he since conducted reasonable searches and made reasonable enquiries with other staff but has been unable to locate his permit.[2]
The Commission does not appear to have a general power under the Act to replace a lost or stolen entry permit. In order for Mr Bauer to hold a valid entry permit and to be in a position to produce it when requested by an occupier to do so, the existing permit, which has been lost, must be revoked and an application for a new permit to be issued must be made. The applicable principles for determining right of entry permit applications under s 512 of the Act are well settled and not controversial. They need not be restated.
Consideration
In support of its application, the AMWU filed declarations by Mr Bauer and Stuart Gordon, Assistant State Secretary of the AMWU (the Declarations).
Permit qualification matters – s 513(1)(a), (b), (c), (d), (e) and (f)
According to the Declarations and the supporting material, Mr Bauer has:
· received appropriate training about the rights and responsibilities of a permit holder by undertaking an online course of training on the subject of a federal right of entry conducted by the ACTU Institute on 29 November 2023 (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 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);[7]
· not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes that Mr Bauer 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 Bauer 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 Bauer is a fit and proper person to hold an entry permit.
Mr Bauer’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; 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.
(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:
(a) a decision under Part 2‑3 (which deals with modern awards);
(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2‑4 (which deal with enterprise agreements);
(c) a decision under Part 2‑5 (which deals with workplace determinations);
(d) a decision under Part 2‑6 (which deals with minimum wages);
(e) a decision under Division 3 of Part 2‑8 (which deals with transfer of business);
(f) a decision under Division 8 of Part 3‑3 (which deals with protected action ballots);
(g) a decision under section 472 (which deals with partial work bans);
(h) a decision that is prescribed by the regulations.
Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).”
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 Commission that is made under the Act (other than a decision referred to in s 603(3)). Subsection 603(3) 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 Bauer in RE2023/1139.
Conclusion
Pursuant to s 603 of the Act, the entry permit RE2023/1139 issued to Mr Bauer by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR776301.
Taking into account the permit qualification matters, for the reasons earlier stated, I am satisfied that Peter Richard Albert Bauer is a fit and proper person to hold an entry permit. The application by the AMWU for an entry permit to be issued to Mr Bauer is granted.
A permit will be separately issued.
DEPUTY PRESIDENT
[1] Statutory declaration of Peter Richard Albert Bauer dated 31 May 2024 at [6].
[2] Ibid at [7]-[9].
[3] Form F42, Declaration by Peter Richard Albert Bauer dated 3 June 2024 at (a); Form F42, Declaration by Stuart Gordon dated 3 June 2024 at 4; ACTU Institute evidence of completion dated 29 November 2023.
[4] Form F42, Declaration by Peter Richard Albert Bauer dated 3 June 2024 at (b); Form F42, Declaration by Stuart Gordon dated 3 June 2024 at 2(a).
[5] Form F42, Declaration by Peter Richard Albert Bauer dated 3 June 2024at (c); Form F42, Declaration by Stuart Gordon dated 3 June 2024 at 2(b).
[6] Form F42, Declaration by Peter Richard Albert Bauer dated 3 June 2024at (d); Form F42, Declaration by Stuart Gordon dated 3 June 2024 at 2(c).
[7] Form F42, Declaration by Peter Richard Albert Bauer dated 3 June 2024 at (e); Form F42, Declaration by Stuart Gordon dated 3 June 2024 at 2(d).
[8] Form F42, Declaration by Peter Richard Albert Bauer dated 3 June 2024 at (f); Form F42, Declaration by Stuart Gordon dated 3 June 2024 at 2(e).
[9] Form F42, Declaration by Peter Richard Albert Bauer dated 3 June 2024 at (g); Form F42, Declaration by Stuart Gordon dated 3 June 2024 at 2(f).
Printed by authority of the Commonwealth Government Printer
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