Community and Public Sector Union-PSU Group

[2024] FWC 2985

[2024] FWC 2985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512 - Application for a right of entry permit

Community and Public Sector Union-PSU Group

(RE2024/1063)

DEPUTY PRESIDENT ROBERTS SYDNEY, 28 OCTOBER 2024

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

1. The Community and Public Sector Union-PSU Group (CPSU) has 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 Tawanda Karasa.

1. Mr Karasa was issued with an entry permit on 19 December 2022,[1] which will expire on 19 December 2025. In a statutory declaration dated 21 October 2024, Mr Karasa declared he realised he had lost his permit on 15 August 2024 whilst travelling overseas.[2]

1. The Commission does not appear to have general power under the Act to replace a lost or stolen entry permit. For Mr Karasa to hold a valid permit and to be able to produce it when requested to do so by an occupier or affected employer, the existing permit, which has been lost, must be revoked and a new permit issued.

Consideration

Mr Karasa’s existing permit

1. Before dealing with the application for a new permit, I propose to deal with the revocation of the existing permit.

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

   (b) on application by:

   (i)…;”

2. 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) which are not presently relevant.

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).

1. In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by the decision of the Commission to Mr Karasa in RE2022/1359.

Application for a right of entry permit

1. In support of its application for a new permit, the CPSU filed declarations by Mr Karasa and Melissa Ann Maggioros (the Declarations). The Declarations provide material relating to the permit qualification matters referred to in s.513(1) which are matters the Commission must take into account in deciding whether the relevant official is a fit and proper person.

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 Karasa 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 ACTU, with certification of completion of the training issued on 23 September 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 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).[7]

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

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 Karasa 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 Karasa is a fit and proper person to hold an entry permit.

Conclusion

1. Pursuant to s 603 of the Act, the entry permit RE2022/1359 issued to Mr Karasa by decision of the Commission is revoked with effect from the date of this decision. A revocation order is issued separately in PR780659.

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

1. A permit will be issued separately.

DEPUTY PRESIDENT

[1] RE2022/1359.

[2] Statutory Declaration of Mr Tawanda Karasa dated 21 October 2024.

[3] Form F42; ACTU Certificate of Completion of Tawanda Karasa dated 23 September 2024.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

Printed by authority of the Commonwealth Government Printer

<PR780657>