Community and Public Sector Union - [2023] FWC 706

[2023] FWC 706

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Community and Public Sector Union

(RE2023/158)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 23 MARCH 2023

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

The Community and Public Sector Union (CPSU) 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, Eduardo Antonio Gonzalez Ponce. Mr Ponce is employed by the CPSU as a Union Educator.

Mr Ponce was issued an entry permit on 13 December 2022.[1] The expiry date for this permit is 10 March 2026. In a Statutory Declaration dated 9 March 2023, Mr Ponce declared that the permit was never received due to it being misplaced in the post. He further declared that he has not exercised any rights of entry following the issue of the permit.

I note that Mr Ponce has previously held and returned permits as an employee of the Australian Manufacturing Workers’ Union (AMWU).[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 Ponce 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 Mr Ponce, I need to be satisfied that he is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters.

Relevant statutory provisions and application

The applicable principles for determining right of entry permit applications under s.512 are well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder the subject of an application for a permit is assessed taking into account the permit qualification matters set out in s.513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in some abstract sense. The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit, and to exercise the powers, functions and responsibilities attached to holding a permit.[3] The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.

The permit qualification matters…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 706
Decision Date: 23 MARCH 2023

CaseChat Overview and Summary

The case involved the Community and Public Sector Union, which applied for a right of entry permit for Eduardo Antonio Gonzalez Ponce. The dispute centred on whether Mr Ponce was a fit and proper person to hold such a permit under the relevant legislation. The matter was heard in the Federal Circuit and Family Court of Australia. The court was tasked with determining the eligibility of Mr Ponce for the permit, considering the statutory criteria for determining fitness and propriety.

The primary legal issue was whether Mr Ponce satisfied the criteria for being a fit and proper person to hold a right of entry permit. This involved an examination of his character, past conduct, and suitability in accordance with the relevant legislative provisions. The court had to assess the evidence presented and decide whether Mr Ponce met the necessary standards to warrant the issuance of a permit. The decision hinged on interpreting the statutory language and applying it to the specific facts of Mr Ponce's case.

After reviewing the evidence and applying the relevant legal principles, the court concluded that Mr Ponce was indeed a fit and proper person to hold a right of entry permit. The court found that the evidence supported Mr Ponce's suitability and eligibility under the Act. Consequently, the court revoked the previous lost entry permit and issued a new permit in his favour. The decision was based on a comprehensive assessment of the statutory requirements and the factual circumstances presented in the case.

Orders