CPSU, the Community and Public Sector Union-PSU Group
[2024] FWC 3603
•31 DECEMBER 2024
| [2024] FWC 3603 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512 - Application for a right of entry permit
CPSU, the Community and Public Sector Union-PSU Group
(RE2024/1252)
| DEPUTY PRESIDENT BUTLER | BRISBANE, 31 DECEMBER 2024 |
Application for a right of entry permit for Mr Hannaan Ahmed – whether a fit and proper person to hold an entry permit under the Act – satisfied Mr Ahmed 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) - PSU Group applies to the Commission under s 512 of the Fair Work Act 2009 (Cth) (Act) for a right to entry permit to be issued to its official, Hannaan Ahmed.
Mr Ahmed was issued an entry permit on 31 October 2024,[1] which will expire on 31 October 2027. Mr Ahmed provided a statutory declaration,[2] in which he declared that his permit had been posted to him on 4 November 2024 but had not arrived by 6 December 2024. The declaration included a postal tracking number. It stated the union’s Office Manager had commenced an “investigation of a lost item process” with Australia Post, and gave a reference number for that investigation process.
Also, the union notified the Commission on 6 and 9 December 2024 that the permit, though received by the union, had been lost in the mail when posted to Mr Ahmed.
Consideration
Revoking the lost permit
The Commission does not appear to have general power under the Act to replace a lost or stolen entry permit.[3] So, the Commission will need to decide whether to revoke the lost permit, and whether to grant the application for a new permit.
The relevant power to revoke is found in s 603 of the Act. A decision to issue an entry permit is a decision for the purposes of that section,[4] and is not in a class of decisions excluded from the operation of the power to revoke, by s 603(3).[5]
The current entry permit, issued in matter RE2024/1118, was issued by decision of an authorised delegate of the President of the Commission. The power to delegate is found in s 625 of the Act. By operation of s 34AB(1)(c) of the Acts Interpretation Act 1901 (Cth), “a function, duty or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority.” So, the fact that the decision was made by a delegate does not detract from a finding that it was a decision of the Commission, capable of being revoked, as set out above.
In light of the above, the Commission has a discretion to revoke the decision in matter RE2024/1118. Taking into account Mr Ahmed's statutory declaration, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Mr Ahmed.[6]
The application for a new entry permit
In support of its application, the CPSU filed declarations of 9 December 2024 by Mr Ahmed and Ms Melissa Ann Maggioros, CPSU-PSU Group, Assistant National Secretary (the Declarations).
Permit qualification matters – s 513(1)(a), (b), (c), (d), (e) and (f)
According to the Declarations and the material which accompanies them, Mr Ahmed 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 on 12 July 2024 (s 513(1)(a) of the Act);[7]
never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);
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;
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);
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);
not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes that Mr Ahmed 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); 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).
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 Ahmed is a fit and proper person to hold a right of entry permit.
Since the declarations were made, I have, as stated in these reasons, decided to revoke Mr Ahmed’s permit issued on 31 October 2024. Given the circumstances that led to that entry permit being revoked, this is not a factor that weighs against a conclusion that Mr Ahmed is a fit and proper person to hold a right of entry permit.
Permit qualification matters – s 513(1)(g)
There are no other matters of which I am aware that I consider relevant to the determination of whether Mr Ahmed is a fit and proper person to hold an entry permit.
Conclusion
Pursuant to s 603 of the Act, the entry permit RE2024/1118 issued to Mr Ahmed by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR782899.
Taking into account the permit qualification matters, and for the reasons earlier stated, I am satisfied that Hannaan Ahmed 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 Ahmed is granted.
A permit will be separately issued.
DEPUTY PRESIDENT
[1] RE2024/1118.
[2] Statutory declaration of Mr Hannaan Ahmed, incorrectly dated “Monday of December 2025,” filed with the Commission on 10 December 2024, [1].
[3] Construction, Forestry and Maritime Employees Union [2024] FWC 808, [3].
[4] Fair Work Act 2009 (Cth) s 598; Construction, Forestry and Maritime Employees Union [2024] FWC 808, [11].
[5] Construction, Forestry and Maritime Employees Union [2024] FWC 808, [11].
[6] in matter RE2024/1118.
[7] A copy of the certificate of completion was filed with the application as an attachment to Mr Ahmed’s declaration.
Printed by authority of the Commonwealth Government Printer
<PR782896>
0
0
0