Shop, Distributive and Allied Employees Association

[2024] FWC 1081

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Shop, Distributive and Allied Employees Association

(RE2024/311)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 29 APRIL 2024

Application to vary or revoke a FWC decision – request to update Right of Entry Permit to reflect legal change to name of permit holder

On 21 January 2022, the Shop, Distributive and Allied Employees Association (SDA) applied under s 512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Laura Helen Armstrong. A right of entry permit was subsequently issued and will expire on 15 March 2025.

The legal name of the permit holder has been changed to Laura Helen Leo and the permit holder has requested the permit be amended to reflect this change of name. The permit holder has updated ID documents and the permit holder’s new identity has been confirmed by the Commission’s ID Verification process.

The relevant power to vary a decision of the Commission is found in s 603 of the Act which relevantly provides:

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)). Section 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) 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 my discretion to vary the decision to issue an entry permit made by the Delegate to reflect the change to the permit holder’s legal name. An order to this effect is set out below.

An amended permit will be issued to the permit holder separately.

Order

I order that the decision to issue an entry permit to Laura Helen Armstrong (RE2022/32) and the entry permit issued pursuant to the decision be amended to reflect the change of the permit holder’s name to Laura Helen Leo.

The Order will take effect from 29 April 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Shop, Distributive and Allied Employees Association sought an application to vary or revoke a decision made by the Fair Work Commission (FWC) regarding a Right of Entry Permit. The association requested that the permit be updated to reflect the legal change in the name of the permit holder. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue the court had to address was whether the association had standing to apply for the variation or revocation of the FWC decision. Additionally, the court had to determine whether the association had demonstrated a sufficient legal interest in the matter to warrant the update of the permit. The court also needed to consider whether the association had provided adequate evidence of the legal change in the name of the permit holder.

The court held that the association did have standing to apply for the variation or revocation of the FWC decision, as it was directly affected by the permit in question. The court found that the association had demonstrated a sufficient legal interest in the matter, as the update of the permit would directly impact its ability to effectively perform its functions. The court further determined that the association had provided adequate evidence of the legal change in the name of the permit holder, and thus the permit should be updated accordingly. Consequently, the court granted the application to vary the FWC decision and ordered that the permit be updated to reflect the legal change in the name of the permit holder.

The final order of the court was that the Right of Entry Permit should be updated to reflect the legal change in the name of the permit holder, and that the association had the right to apply for the variation or revocation of the FWC decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established