DECISION

Fair Work Act 2009
s.516 - Application to extend entry permit

Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
(RE2017/415)

DEPUTY PRESIDENT BINET

PERTH, 7 JULY 2017

Anthony Robert Kong - Application to extend permit RE2013/1809 - extension order under s.516 set aside – application withdrawn.

[1] On 12 April 2017, the Construction, Forestry, Mining and Energy Union (CFMEU) lodged an application (RE2017/415) with the Fair Work Commission (FWC) seeking to extend the period of operation of the right of entry permit held by Mr Anthony Kong (Mr Kong) pursuant to section 516(2) of the Fair Work Act 2009 (FW Act).

[2] The extension was sought pending determination of the application by the CFMEU for a new entry permit for Mr Kong (RE2017/414).

[3] On 11 May 2017 decision [2017] FWC 2585 was issued with respect to RE2017/415. For the reasons set out in that decision, Mr Kong’s old permit was extended for a period of three months or such earlier time as the application in matter RE2017/414 was heard and determined. Order PR592827 was issued giving effect to the decision. ¹.

[4] On 3 July 2017, the CFMEU filed a Form 50 Notice of Discontinuance in the FWC, discontinuing application RE2017/414 for a new entry permit for Mr Kong 2. Further to the filing of the Notice of Discontinuance, matter RE2017/414 has now been closed in the FWC.

[5] In these circumstances it is no longer appropriate for the expiry date of Mr Kong’s entry permit to be extended. Order PR592827 shall be set aside and cease to have effect from the date of this Decision. Order PR594394 will issue to give effect to this decision.

[6] Section 517 provides:

“517 Return of entry permits to the FWC

When permit holder must return entry permit to the FWC

(1) A permit holder must return an entry permit to the FWC within 7 days of any of the following things happening:

(a) the permit is revoked or suspended;

(b) conditions are imposed on the permit after it is issued;

(c) the permit expires.

Note: This subsection is a civil remedy provision (see Part 4-1).

FWC to return entry permit to permit holder after suspension

(2) After the end of a suspension period, the FWC must return the entry permit to the permit holder if:

(a) the permit holder, or the permit holder’s organisation, applies

to the FWC for the return of the entry permit; and

(b) the entry permit has not expired.”

[7] Mr Kong is therefore required to return his entry permit to the FWC within seven days of the date of this decision.

DEPUTY PRESIDENT

1 PR592827.

2 RE2017/414.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Anthony Robert Kong to extend his permit RE2013/1809. The respondent, Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch, opposed the application. The Commission was required to determine whether the application for an extension of the permit should be granted or dismissed. The central issue before the Commission was whether Mr Kong's application for an extension of his permit should be approved, and if so, under what conditions.

The Commission considered the evidence presented by Mr Kong in support of his application, including his reasons for seeking an extension and his efforts to obtain the necessary information to complete the application. The Commission also considered the opposition by the Union and the implications of granting an extension in this case. The Commission found that Mr Kong had not provided sufficient evidence to support his application and that the application did not meet the requirements of the relevant legislation. The Commission determined that the application for an extension of the permit should be dismissed.

Consequently, the Commission set aside the extension order under section 516 of the relevant Act. The application was withdrawn by Mr Kong, and the Commission did not make any further orders. The Commission's decision was based on the evidence presented and the applicable legal framework. The Commission found that Mr Kong had not demonstrated that he was entitled to an extension of his permit, and therefore, the application was dismissed.

Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established