CPSU, the Community and Public Sector Union
[2024] FWC 1616
•26 JUNE 2024
| [2024] FWC 1616 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry; s 603 – Varying and revoking FWC’s decisions
CPSU, the Community and Public Sector Union
(RE2024/646)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 26 JUNE 2024 |
Application for a right of entry permit for Danielle Luisa Mutton – whether fit and proper person to hold an entry permit under the Act – satisfied Ms Mutton is a fit and proper person to hold a permit – order revoking stolen entry permit issued – permit issued.
CPSU, the Community and Public Sector Union (CPSU) applied under s 512 of the Fair Work Act 2009 (Cth) (Act) for the issue of a right of entry permit to its official, Danielle Luisa Mutton. Ms Mutton is employed by the CPSU as a Field Organiser.
Ms Mutton was issued an entry permit on 5 July 2022.[1] The expiry date for this permit is 5 July 2025. In a statutory declaration dated 12 June 2024, Ms Mutton declared that her right of entry permit had been stolen from her car on 8 or 9 June 2024.[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 Ms Mutton 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. The applicable principles for determining right of entry permit applications under s 512 of the Act are well settled and not controversial. They need not be restated.
Consideration
In support of its application, the CPSU filed declarations by Ms Mutton and Melissa Ann Maggioros, Assistant National Secretary of the CPSU-PSU Group (the Declarations).
Permit qualification matters – s 513(1)(a), (b), (c), (d), (e) and (f)
According to the Declarations and the supporting material, Ms Mutton has:
· received appropriate training about the rights and responsibilities of a permit holder by undertaking an online course of training on the subject of a federal right of entry conducted by ACTU on 12 June 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 her, 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 a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (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 Ms Mutton 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]
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 Mutton is a fit and proper person to hold a right of entry permit.
Permit qualification matters – s 513(1)(g)
The Declarations do not disclose other matters that Ms Mutton and Ms Maggioros consider relevant to the determination of whether she is a fit and proper person to hold an entry permit.
On 18 June 2024, Ms Mutton informed the Commission that she exercised right of entry to a Services Australia workplace on 10 June 2024 and that she did not realise her permit was stolen prior to entering the workplace. She also informed the Commission she realised that her entry permit was stolen until after she exercised right of entry when she returned to her car that same day.
Permit holders proposing to exercise entry rights should ensure they are in possession of a valid entry permit before doing so. Entry permits must be produced for inspection by an occupier of premisses at which entry rights are exercised, inter alia, on request. That Ms Mutton exercised right of entry under the Act at the Services Australia workplace on 10 June 2024 without checking that she had a valid permit in her possession was careless and unnecessarily exposed her to allegations that she exercised entry rights improperly. However, Ms Mutton has been candid in her disclosure and has subsequently received appropriate training on 12 June 2024 about the rights and responsibilities of a permit holder, which should now have ingrained in Ms Mutton’s practice as a permit holder, the need to check that she has in her possession a valid permit before each entry is attempted in the future. Overall, this isolated incident does not diminish my assessment that Ms Mutton is a fit and proper person to hold and entry permit.
There are no other matters, of which I am aware that are relevant, and which weigh against a conclusion that Ms Mutton is a fit and proper person to hold an entry permit under the Act.
Ms Mutton’s existing permit
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.
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) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.
(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:
(a) a decision under Part 2‑3 (which deals with modern awards);
(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2‑4 (which deal with enterprise agreements);
(c) a decision under Part 2‑5 (which deals with workplace determinations);
(d) a decision under Part 2‑6 (which deals with minimum wages);
(e) a decision under Division 3 of Part 2‑8 (which deals with transfer of business);
(f) a decision under Division 8 of Part 3‑3 (which deals with protected action ballots);
(g) a decision under section 472 (which deals with partial work bans);
(h) a decision that is prescribed by the regulations.
Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).”
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 Commission that is made under the Act (other than a decision referred to in s 603(3)). Subsection 603(3) excludes certain classes of decisions from the scope of the general power to vary or revoke in s 603(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).
In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Ms Mutton in RE2022/465.
Conclusion
Pursuant to s 603 of the Act, the entry permit RE2022/465 issued to Ms Mutton by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR776249.
Taking into account the permit qualification matters, for the reasons earlier stated, I am satisfied that Danielle Luisa Mutton is a fit and proper person to hold an entry permit. The application by the CPSU for an entry permit to be issued to Ms Mutton is granted.
A permit will be separately issued.
DEPUTY PRESIDENT
[1] RE2022/465.
[2] Statutory declaration of Danielle Luisa Mutton dated 12 June 2024.
[3] Form F42, Declaration by Danielle Luisa Mutton dated 12 June 2024 at (a); Form F42, Declaration by Melissa Ann Maggioros dated 17 June 2024 at 4; ACTU Institute certificate of completion dated 12 June 2024.
[4] Form F42, Declaration by Danielle Luisa Mutton dated 12 June 2024 at (b); Form F42, Declaration by Melissa Ann Maggioros dated 17 June 2024 at 2(a).
[5] Form F42, Declaration by Danielle Luisa Mutton dated 12 June 2024 at (c); Form F42, Declaration by Melissa Ann Maggioros dated 17 June 2024 at 2(b).
[6] Form F42, Declaration by Danielle Luisa Mutton dated 12 June 2024 at (d); Form F42, Declaration by Melissa Ann Maggioros dated 17 June 2024 at 2(c).
[7] Form F42, Declaration by Danielle Luisa Mutton dated 12 June 2024 at (e); Form F42, Declaration by Melissa Ann Maggioros dated 17 June 2024 at 2(d).
[8] Form F42, Declaration by Danielle Luisa Mutton dated 12 June 2024 at (f); Form F42, Declaration by Melissa Ann Maggioros dated 17 June 2024 at 2(e).
[9] Form F42, Declaration by Danielle Luisa Mutton dated 12 June 2024 at (g); Form F42, Declaration by Melissa Ann Maggioros dated 17 June 2024 at 2(f).
Printed by authority of the Commonwealth Government Printer
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