Health Services Union

[2023] FWCD 31

[2023] FWCD 31

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512 - Application for a right of entry permit

Health Services Union

(RE2023/1020)

BILL STEENSON SYDNEY, 28 NOVEMBER 2023

Application for a right of entry permit

1. On 3 November 2023, the Health Services Union (HSU) lodged with the Fair Work Commission (Commission) an application for an entry permit (permit) under the Fair Work Act 2009 (FW Act) for Andrew Doan Duy Tran (Mr Tran). Mr Tran is an official of the HSU.

1. The circumstances regarding the application, particularly in relation to the return of previous permits, warrant specific observation.

Statutory framework

1. Section 512 of the FW Act provides that the Commission may, on application from a registered organisation, issue a permit to an official of that organisation if the Commission is satisfied that the official is a fit and proper person to hold the permit.

1. In determining whether to issue a permit, the authorised decision-maker must consider the matters outlined in section 513 of the FW Act when assessing whether the official, who is the proposed permit holder, is a fit and proper person. This includes, but is not limited to, whether the official has been convicted of an offence against an industrial law, whether they have been ordered to pay a penalty under the FW Act or any other industrial law in relation to action taken by the official, and whether they have had a permit revoked or suspended or made subject to conditions.[1] Subsection 513(1)(g) also provides that the Commission must take into account ‘any other matters’ that the Commission considers relevant.

1. A permit has effect for a term of three years from the date that it is issued, unless that permit is revoked, suspended, or had conditions imposed upon it.[2] In relation to the expiry, section 517 of the FW Act requires that an official must return an entry permit to the Commission in the following circumstances:

   (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.

Background and consideration

1. Mr Tran is employed by the HSU as an Organiser. In its application for this permit (RE2023/1020), the HSU noted that on 4 August 2023 Mr Tran satisfactorily completed Federal Right of Entry training provided by the Australian Council of Trade Unions (ACTU). The ACTU is an approved provider of prescribed training in relation to entry permits.

1. Mr Tran has held permits since 2014. However, the previous two permits (RE2020/768 and RE2017/783) were both returned late, i.e. outside of the statutory timeframe stipulated in section 517(1)(c) of the FW Act.

1. Permit RE2017/783 expired on 13 July 2020. The Commission received the returned permit on 3 September 2020, being 45 days later than the return period set out in s.517(1)(c). The statutory declaration (undated) provided by Mr Tran at the time stated that the reason the permit was returned late was due to an ‘oversight’. In the statutory declaration, Mr Tran declared that he had not exercised any right of entry under the FW Act since the permit had expired. (Had he done so, it may amount to a contravention).

1. Permit RE2020/768 expired on 23 September 2023. The Commission received the returned permit on 6 October 2023, being 6 days later than the return period set out in s.517(1)(c). The statutory declaration provided by Mr Tran stated that the reason the permit was returned late was due to the matter being ‘overlooked’. Mr Tran subsequently confirmed, via email on 17 November 2023, that he had not exercised any right of entry under the FW Act since the permit had expired.

1. As noted earlier, it is a statutory requirement for an official to return an expired permit to the Commission within the timeframe as outlined in section 517 of the FW Act. Section 517 of the FW Act is a civil remedy provision.

1. I note, in relation to both permits, Mr Tran advised the Commission that he did not exercise entry rights under the FW Act after the abovementioned permits expired.

1. Noting the above issues, this matter should serve as a reminder to the HSU and Mr Tran (and to other organisations and permit holders) of their statutory obligations in respect of permits, including the expiry of permits and the statutory requirement to return them within 7 days of expiry and other events that trigger return.

1. Having considered all of the relevant facts and circumstances, I have concluded that there is nothing which indicates that issuing a permit to Mr Tran would be contrary to the objects of the FW Act.

1. Having determined to approve the issuing of an entry permit, I have also concluded that it is not necessary to impose any conditions on the permit, which would limit the circumstances in which this permit has effect.

1. I hereby issue the permit to Mr Tran.

DELEGATE OF THE FAIR WORK COMMISSION

[1] Fair Work Act 2009, s. 513(1).

[2] Ibid, s. 516.

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PR768476