In the matter of the Entry Permit of Anthony Dimitriou
[2023] FWC 1101
•9 MAY 2023
| [2023] FWC 1101 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.510 - Upon referral, revoke or suspend an entry permit
In the matter of the Entry Permit of Anthony Dimitriou
(RE2022/121)
| COMMISSIONER P RYAN | SYDNEY, 9 MAY 2023 |
Revocation/suspension of entry permit: Anthony Dimitriou
Mr Anthony Dimitriou holds an entry permit that was issued pursuant to s.512 of the Fair Work Act 2009 (FW Act).
In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) (No 2) [2022] FCA 19, Mr Dimitriou was found to have contravened s.500 of the FW Act and ordered to pay a pecuniary penalty of $3000.00.
Where a permit holder is ordered to pay a pecuniary penalty under the FW Act in relation to a contravention of Part 3-4 of the FW Act, the Commission must commence proceedings to consider what action, if any, should be taken under s.510.
The Commission commenced proceedings pursuant to s.510 and allocated the matter to my Chambers.
These proceedings were subsequently adjourned pending the outcome of an appeal of the penalty judgment to the Full Court of the Federal of Australia.
On 2 May 2023, the Full Court handed down its decision in Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Appeal) [2023] FCAFC 63. The Full Court ordered that the order which imposed a pecuniary penalty on Mr Dimitriou be set aside and ordered that the proceedings be remitted to the Court’s original jurisdiction for reconsideration.
On 4 May 2023, an application was made by Mr Dimitriou to have these proceedings dismissed on the basis that the setting aside of the order to pay a pecuniary penalty by the Full Court removed the jurisdictional basis for the commencement of these proceedings by the Commission. The application noted that should a pecuniary penalty be ordered as part of the Court’s reconsideration of the matter, it will trigger a new event for the commencement of proceedings under s.510.
On 5 May 2023, my Chambers sent correspondence to the parties as follows:
Commissioner Ryan has reviewed the decision and orders of the Full Court and has formed the provisional view that proceedings RE2022/121 be dismissed pursuant to s.587 of the Fair Work Act 2009 (FW Act) on the basis that the triggering event has been set aside.
In forming this provisional view, Commissioner Ryan notes the submission below that any penalty imposed on remittal will constitute an event for the purposes of s.510 of the FW Act.
Any party opposing this course is to advise Chambers by 4:00pm on Monday 8 May 2023. If a party opposes this course, the matter will be listed for further mention and directions.
Neither party filed any response or objection to the provisional view.
Accordingly, I confirm my provisional view and dismiss the proceedings pursuant to .587 of the FW Act. An order to that effect will be issued with this decision.
COMMISSIONER
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