“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

[2023] FWC 2007

[2023] FWC 2007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

(RE2023/667)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 14 AUGUST 2023

Application by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)-New South Wales Branch (188V-NSW) for an Entry Permit for Katherine Maria Hepworth

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) has applied to the Fair Work Commission (Commission) under s 512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Katherine Maria Hepworth. Ms Hepworth is employed by the AMWU as a Political and Strategic Advisor.

1. Ms Hepworth was issued an entry permit on 22 November 2022.[1] The expiry date for this permit is 22 August 2025. In a Statutory Declaration dated 19 July 2023, Ms Hepworth declared that the permit was lost on 16 June 2023 during the course of her day and was unable to be located despite inquiries being made.

1. The Commission does not appear to have a general power under the Act to replace a lost or stolen entry permit. In order for Ms Hepworth 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. To issue a permit to Ms Hepworth, I need to be satisfied that she is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters. The applicable principles for determining right of entry permit applications under s 512 are well settled and not controversial. They need not be restated.

Consideration

1. In support of its application the AMWU filed declarations by Ms Hepworth and Mr Steven Murphy, National Secretary of the AMWU (the Declarations).

Permit qualification matters – s 513(1)(a), (b), (c), (d), (e) and (f)

1. According to the Declarations:

·   Ms Hepworth has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 18 October 2022 (s 513(1)(a) of the Act));[2]

·   Ms Hepworth has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[3]

·   Ms Hepworth has 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;[4]

·   Ms Hepworth nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by her (s 513(1)(d) of the Act);[5]

·   Ms Hepworth has 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);[6]

·   Ms Hepworth has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Ms Hepworth 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);[7] and

·   Ms Hepworth has 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).[8]

1. 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 Ms Hepworth is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s 513(1)(g)

1. There are no other matters of which I am aware that I consider relevant to the determination of whether Ms Hepworth is a fit and proper person to hold an entry permit.

Ms Hepworth’s existing permit

1. 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.

1. 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

…”

1. 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).

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).

1. In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Ms Hepworth in matter RE2022/1248.

Conclusion

1. Pursuant to s 603 of the Act, the entry permit RE2022/1248 issued to Ms Hepworth by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR765132.

1. Taking into account the permit qualification matters, for the reasons earlier stated I am satisfied that Katherine Maria Hepworth is a fit and proper person to hold an entry permit. The application by the AMWU for an entry permit to be issued to Ms Hepworth is granted.

1. A permit will be separately issued.

DEPUTY PRESIDENT

[1] RE2022/1248

[2] Form F42, Declaration by proposed permit holder dated 28 July 2023 at (a)

[3] Ibid at (b)

[4] Ibid at (c)

[5] Ibid at (d)

[6] Ibid at (e)

[7] Ibid at (f)

[8] Ibid at (g)

Printed by authority of the Commonwealth Government Printer

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