Finance Sector Union of Australia
[2024] FWC 1566
•18 JUNE 2024
| [2024] FWC 1566 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 512—Right of entry; s 603 – Varying and revoking FWC’s decisions
Finance Sector Union of Australia
(RE2024/582)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 18 JUNE 2024 |
Application for a right of entry permit for Timothy Andrew Colwill – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Colwill is a fit and proper person to hold a permit – order revoking stolen entry permit issued – permit issued.
The Finance Sector Union of Australia (FSU) applied under s 512 of the Fair Work Act 2009 (Cth) (Act) for the issue of a right of entry permit to its official, Timothy Andrew Colwill. Mr Colwill is employed by the FSU as a Senior Digital Organiser.
Mr Colwill was issued an entry permit on 7 November 2022.[1] The expiry date for this permit is 7 November 2025. In a statutory declaration dated 22 May 2024, Mr Colwill declared that his right of entry permit had been stolen on or about the morning of Friday, 17 May 2024.[2] He declared that on Monday, 20 May 2024 he became aware of the theft and reported the theft to the police (report No. 200525 1330 86542).[3] On 17 June 2024, Mr Colwill declared that he has not exercised his right of entry since his permit was stolen.
The Commission does not appear to have a general power under the Act to replace a lost or stolen entry permit. In order for Mr Colwill 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 FSU filed declarations by Mr Colwill and Ms Wendy Streets, National President of the FSU (the Declarations).
Permit qualification matters – s 513(1)(a), (b), (c), (d), (e) and (f)
According to the Declarations and the supporting material, Mr Colwill 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 the ACTU on 15 September 2022 (s 513(1)(a) of the Act));[4]
· never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[5]
· 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;[6]
· 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);[7]
· 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);[8]
· not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes that Mr Colwill 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);[9] 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).[10]
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 Colwill 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 Colwill is a fit and proper person to hold an entry permit.
Mr Colwill’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.”
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).
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 Mr Colwill in RE2022/1207.
Conclusion
Pursuant to s 603 of the Act, the entry permit RE2022/1207 issued to Mr Colwill by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR776083.
Taking into account the permit qualification matters, and for the reasons earlier stated, I am satisfied that Timothy Andrew Colwill is a fit and proper person to hold an entry permit. The application by the FSU for an entry permit to be issued to Mr Colwill is granted.
A permit will be separately issued.
DEPUTY PRESIDENT
[1] RE2022/1207
[2] Statutory declaration of Timothy Andrew Colwill dated 22 May 2024 at [5].
[3] Ibid at [6]-[7].
[4] Form F42, Declaration by Timothy Andrew Colwill dated 30 May 2024 at (a); Form F42, Declaration by Wendy Streets dated 30 May 2024 at 4; ACTU Institute certificate of completion dated 15 September 2022.
[5] Form F42, Declaration by Timothy Andrew Colwill dated 30 May 2024 at (b); Form F42, Declaration by Wendy Streets dated 30 May 2024 at 2(a).
[6] Form F42, Declaration by Timothy Andrew Colwill dated 30 May 2024 at (c); Form F42, Declaration by Wendy Streets dated 30 May 2024 at 2(b).
[7] Form F42, Declaration by Timothy Andrew Colwill dated 30 May 2024 at (d); Form F42, Declaration by Wendy Streets dated 30 May 2024 at 2(c).
[8] Form F42, Declaration by Timothy Andrew Colwill dated 30 May 2024 at (e); Form F42, Declaration by Wendy Streets dated 30 May 2024 at 2(d).
[9] Form F42, Declaration by Timothy Andrew Colwill dated 30 May 2024 at (f); Form F42, Declaration by Wendy Streets dated 30 May 2024 at 2(e).
[10] Form F42, Declaration by Timothy Andrew Colwill dated 30 May 2024 at (g); Form F42, Declaration by Wendy Streets dated 30 May 2024 at 2(f).
Printed by authority of the Commonwealth Government Printer
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