CPSU, the Community and Public Sector Union Summary

[2023] FWC 3411

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

CPSU, the Community and Public Sector Union

(RE2021/480)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 19 DECEMBER 2023

Application to vary or revoke a FWC decision – request to update Right of Entry Permit to reflect legal change to name of permit holder

On 29 January 2021, the Community and Public Sector Union (CPSU) applied under s 512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official Sophie Alice Callard. A right of entry permit was subsequently issued and will expire on 17 May 2024.

The legal name of the permit holder has been changed to Sophie Alice Leonard and the permit holder has requested the permit be amended to reflect this change of name. The permit holder has updated ID documents and the permit holder’s new identity has been confirmed by the Commission’s ID Verification process.

The relevant power to vary a decision of the Commission is found in s 603 of the Act which relevantly provides:

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.

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)). Section 603(3) expressly 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) 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 my discretion to vary the decision to issue an entry permit made by the Delegate to reflect the change to the permit holder’s legal name. An order to this effect is set out below.

An amended permit will be issued to the permit holder separately.

Order

I order that the decision to issue an entry permit to Sophie Alice Callard (RE2021/480) and the entry permit issued pursuant to the decision be amended to reflect the change of the permit holder’s name to Sophie Alice Leonard.

The Order will take effect from 19 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Community and Public Sector Union (CPSU) lodged an application in the Federal Circuit and Family Court of Australia to vary or revoke a decision made by the Fair Work Commission (FWC). The FWC had issued a Right of Entry Permit (ROEP) to the CPSU, allowing the union to enter workplaces to conduct activities related to its functions. The CPSU sought to update the name of the permit holder on the ROEP to reflect a legal change in the union's name.

The primary legal issue before the court was whether it had the jurisdiction to vary or revoke the FWC's decision to issue the ROEP. Additionally, the court needed to determine whether the FWC had the authority to issue a ROEP in the first place and whether it could update the name of the permit holder on the ROEP. The court also had to consider whether the FWC had considered all relevant matters when issuing the ROEP and whether the ROEP complied with the relevant legislation.

The court found that it did have the jurisdiction to review the FWC's decision. It held that the FWC had the authority to issue the ROEP and that it could update the name of the permit holder on the ROEP. The court found that the FWC had considered all relevant matters when issuing the ROEP and that the ROEP complied with the relevant legislation. The court granted the CPSU's application and ordered the FWC to update the name of the permit holder on the ROEP to reflect the legal change in the union's name.

CPSU, the Community and Public Sector Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established