Independent Education Union of Australia-New South Wales/Australian Capital Territory Branch

[2022] FWC 141

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Independent Education Union of Australia-New South Wales/Australian Capital Territory Branch

(RE2021/1351)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JANUARY 2022

Application for a right of entry permit for Bernadette Mary Simpson – permit previously issued - permit never received – order revoking missing permit – permit reissued.

The Independent Education Union of Australia (IEUA) applied under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Ms Bernadette Mary Simpson. The Commission subsequently issued Ms Simpson a right of entry permit which will expire on 17 December 2024.

Ms Simpson’s permit is one of the 37 missing entry permits referred to in decision [2022] FWC 123. As indicated in that decision, in order for Ms Simpson to hold a valid entry permit, the missing permit must be revoked and a permit must be reissued. In order to issue a permit to Ms Simpson, I need to be satisfied that she is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters. The relevant statutory considerations set out in [2022] FWC 123 are adopted here and need not be repeated.

Consideration

In support of its application IEUA filed declarations by Ms Simpson and Mr William Edward Griffiths, Assistant Secretary (the Declarations).

Permit qualification matters – s.513(1)(a), (b), (c), (d), (e) and (f)

According to the Declarations:

· Ms Simpson has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 21 October 2021 (s.513(1)(a) of the Act));[1]

· Ms Simpson has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);[2]

· Ms Simpson has 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;[3]

· Neither Ms Simpson nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by her (s.513(1)(d) of the Act);[4]

· Ms Simpson has 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);[5]

· Ms Simpson has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Ms Simpson 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);[6] and

· Ms Simpson has 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).[7]

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 Ms Simpson 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 Ms Simpson is a fit and proper person to hold an entry permit.

Conclusion

Pursuant to s.603 of the Act, the entry permit formerly issued to Ms Simpson by decision of the delegate is revoked with effect from the date of this decision. A revocation order is separately issued in PR737825.

Taking in account the permit qualification matters, for the reasons earlier stated I am satisfied that Ms Simpson is a fit and proper person to hold an entry permit.

A permit will be reissued to Ms Simpson separately.

DEPUTY PRESIDENT

[1] Form F42, Declaration by proposed permit holder dated 6 December 2021 at (a) and ACTU Certificate of Completion dated 21 October 2021

[2] Ibid at (b)

[3] Ibid at (c)

[4] Ibid at (d)

[5] Ibid at (e)

[6] Ibid at (f)

[7] Ibid at (g)

Printed by authority of the Commonwealth Government Printer

The Independent Education Union of Australia (IEUA) sought a right of entry permit for Bernadette Simpson under section 512 of the Fair Work Act 2009. Simpson’s previous permit was among 37 that went missing. The Deputy President revoked the previous permit and issued a new one to Simpson. Simpson’s permit was missing, and the Deputy President had to determine whether Simpson was a fit and proper person to hold the permit. The Deputy President needed to consider whether Simpson had completed the necessary training, whether she had any relevant convictions, and whether she had any other relevant history.

The IEUA submitted declarations by Simpson and William Griffiths, the Assistant Secretary, to support the application. The declarations indicated that Simpson had completed the necessary training, had no relevant convictions, and had not been ordered to pay any penalties under the Act or any other industrial law. Simpson had no entry permit revoked, suspended, or subject to conditions, and had no right of entry permit for industrial or occupational health and safety purposes cancelled, suspended, or subject to conditions. Simpson had not been disqualified from exercising or applying for such a permit under a State or Territory industrial law or occupational health and safety law. The Deputy President was satisfied that Simpson was a fit and proper person to hold the permit.

Pursuant to section 603 of the Act, the entry permit formerly issued to Simpson was revoked with effect from the date of the decision. A revocation order was separately issued. A new permit was issued to Simpson.

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