Media, Entertainment and Arts Alliance

[2025] FWC 379

[2025] FWC 379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512 – Right of entry; s.603 - Varying and revoking FWC’s decisions

Media, Entertainment and Arts Alliance

(RE2025/45)

COMMISSIONER PERICA MELBOURNE, 10 FEBRUARY 2025

Application for a right of entry permit for Tanya Maree Smith

1. Media, Entertainment and Arts Alliance (MEAA) applied under s 512 of the Fair Work Act 2009 (Cth) (Act) for the issue of a right of entry permit to its official, Ms. Tanya Maree Smith. Ms. Smith is employed by the MEAA as an Membership Services Team Consultant.

1. Ms. Smith was issued an entry permit on 8 December 2022.[1] In a statutory declaration dated 19 September 2024, Ms. Smith declared that her right of entry permit had been stolen from her workplace on or around 17 September 2024.[2]

1. The Commission does not appear to have a general power under the Act to replace a lost or stolen entry permit. In order for Ms. Smith 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

1. In support of its application, the MEAA filed declarations by Ms. Smith and Mr. Michael Douglas Balk, Federal President of the MEAA (the Declarations).

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

1. According to the Declarations and the supporting material, Ms. Smith 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 ACTU on 21 October 2022 (s 513(1)(a) of the Act));[3]

·   never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[4]

·   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[5]

·   never been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by her, nor has any other person (s 513(1)(d) of the Act);[6]

·   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);[7]

·   not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes that Ms. Smith 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);[8] 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).[9]

1. 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. Smith is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s 513(1)(g)

1. The Declarations do not disclose other matters that Ms. Smith and Mr. Balk consider relevant to the determination of whether she is a fit and proper person to hold an entry permit.

1. There are no other matters of which I am aware that are relevant and which weigh against a conclusion that Ms. Smith is a fit and proper person to hold an entry permit under the Act.

Ms. Smith’s existing permit

1. 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.

1. The relevant power to revoke is found in s 603 of the Act, which relevantly provides:

603Varying 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.

(3)The FWC must not vary or revoke any of the following decisions of the FWC under this section:

(a)a decision under Part 2‑3 (which deals with modern awards);

(b)a decision under section 235 or Division 4, 7, 9 or 10 of Part 2‑4 (which deal with enterprise agreements);

(c)a decision under Part 2‑5 (which deals with workplace determinations);

(d)a decision under Part 2‑6 (which deals with minimum wages);

(e)a decision under Division 3 of Part 2‑8 (which deals with transfer of business);

(f)a decision under Division 8 of Part 3‑3 (which deals with protected action ballots);

(g)a decision under section 472 (which deals with partial work bans);

(ga)a decision under Part 3A‑2 (which deals with minimum standards orders);

(gb)a decision under Part 3A‑4 (which deals with collective agreements);

(gc)a decision under Part 3B‑2 (which deals with road transport contractual chain orders);

(h)a decision that is prescribed by the regulations.

Note:The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).

1. 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 Commission that is made under the Act (other than a decision referred to in s 603(3)). Subsection 603(3) excludes certain classes of decisions from the scope of the general power to vary or revoke in s 603(1).

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).

1. In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Ms. Smith in RE2022/1350.

Conclusion

1. Pursuant to s 603 of the Act, the entry permit RE2022/1350 issued to Ms. Smith by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR784194.

1. Taking into account the permit qualification matters, for the reasons earlier stated, I am satisfied that Ms. Tanya Maree Smith is a fit and proper person to hold an entry permit. The application by the MEAA for an entry permit to be issued to Ms. Smith is granted.

1. A permit will be separately issued.

COMMISSIONER

[1] RE2022/1350.

[2] Statutory declaration of Tanya Maree Smith dated 19 September 2024.

[3] Form F42, Declaration by Michael Douglas Balk dated 20 January 2025 at 3.1(a); ACTU Institute certificate of completion dated 21 October 2022.

[4] Form F42, Declaration by Michael Douglas Balk dated 20 January 2025 at 3.1(b).

[5] Form F42, Declaration by Michael Douglas Balk dated 20 January 2025 at 3.1(c).

[6] Form F42, Declaration by Michael Douglas Balk dated 20 January 2025 at 3.1(d).

[7] Form F42, Declaration by Michael Douglas Balk dated 20 January 2025 at 3.1(e).

[8] Form F42, Declaration by Michael Douglas Balk dated 20 January 2025 at 3.1(f).

[9] Form F42, Declaration by Michael Douglas Balk dated 20 January 2025 at 3.1(g).

Printed by authority of the Commonwealth Government Printer

<PR784193>