Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Plumbing Division Queensland Divisional Branch

[2024] FWC 1162

[2024] FWC 1162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512 - Application for a right of entry permit

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Plumbing Division Queensland Divisional Branch

(RE2024/300)

DEPUTY PRESIDENT DOBSON BRISBANE, 3 MAY 2024

Application for a right of entry permit for Mr Christopher McJannett – whether fit and proper person to hold an entry permit under the Act – satisfied Mr McJannett is a fit and proper person to hold a permit – order revoking lost entry permit issued – permit issued.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applies to the Commission under s 512 of the Fair Work Act 2009 (Cth) (Act) for a right to entry permit to be issued to its official, Christopher McJannett, who is an Organiser of the CEPU’s Plumbing Division Queensland Branch.

1. Mr McJannett was issued an entry permit on 13 September 2023,[1] which will expire on 13 September 2026.  In a statutory declaration dated 4 March 2024, Mr McJannett declared that he lost or misplaced the permit at some point on or about 26 February 2024.

1. The Commission does not appear to have general power under the Act to replace a lost or stolen entry permit. For Mr McJannett to hold a valid entry permit and 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, and as noted above has been made. 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 CEPU filed declarations by Mr McJannett and Gary O’Halloran, State Secretary of the CEPU’s Queensland Plumbing Division (the Declarations).

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

1. According to the Declarations and the material which accompanies them:

·  Mr McJannett has received 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 on 6 June 2023.[2] The course of training conducted by the Australian Services Union is a course approved by the Commission and the training completed by Mr McJannett is relevantly appropriate (s 513(1)(a) of the Act);

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

·  Mr McJannett 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]

·  Neither Mr McJannett 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 him (s 513(1)(d) of the Act);[5]

·  Mr McJannett has not 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);[6]

·  Mr McJannett has not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes that Mr McJannett 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

·  Mr McJannett 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 safe 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 Mr McJannett 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 Mr McJannett is a fit and proper person to hold an entry permit.

Mr McJannett’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 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 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)).  Subsection 603(3) expressly excludes certain classes of decisions from the scope of the general power to vary 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) 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) of the Act.

1. In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Mr McJannett in matter RE2023/809.

Conclusion

1. Pursuant to s 603 of the Act, the entry permit RE2023/809 issued to Mr McJannett by decision of the Commission is revoked with effect from the date of this decision.  A revocation order is separately issued in [PR774515].

1. Taking into account the permit qualification matters and for the reasons earlier stated, I am satisfied that Frederick Emil McJannett is a fit and proper person to hold an entry permit.  The application by the CEPU for an entry permit to be issued to Mr McJannett is granted.

1. A permit will be separately issued.

DEPUTY PRESIDENT

<PR774512>

[1] RE2023/809.

[2] ASU Right of Entry Training Certificate of Completion dated 6 June 2023.

[3] Form F42, Declaration by proposed permit holder dated 14 March 2024 at (b).

[4] Ibid at (c).

[5] Ibid at (d).

[6] Ibid at (e).

[7] Ibid at (f).

[8] Ibid at (g)

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