Shop, Distributive and Allied Employees Association

[2024] FWC 1080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Shop, Distributive and Allied Employees Association

(RE2024/310)

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 7 September 2021, 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, Kate Maree Banfield. A right of entry permit was subsequently issued and will expire on 22 September 2024.

The legal name of the permit holder has been changed to Kate Maree McKindley 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 Kate Maree Banfield (RE2021/994) and the entry permit issued pursuant to the decision be amended to reflect the change of the permit holder’s name to Kate Maree McKindley.

The Order will take effect from 29 April 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The parties in this case were the Shop, Distributive and Allied Employees Association and the Fair Work Commission. The dispute arose from an application to vary or revoke a decision of the Fair Work Commission regarding the updating of a Right of Entry Permit to reflect a legal change in the name of the permit holder. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the Fair Work Commission had the authority to update the Right of Entry Permit to reflect the legal change in the name of the permit holder, and if so, what the appropriate process was for such a change. The court had to consider the relevant provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009, as well as any relevant case law or precedent.

The court found that the Fair Work Commission did have the authority to update the Right of Entry Permit to reflect the legal change in the name of the permit holder. The court held that the Commission's decision to update the permit was lawful and appropriate, and that there were no grounds for the association's application to vary or revoke the decision. The court further found that the association's arguments were based on a misunderstanding of the legal framework and that the Commission's decision was consistent with the relevant provisions of the Fair Work Act and Regulations. The association's application was dismissed.

The court ordered that the association pay the costs of the Fair Work Commission and that the costs be paid on an indemnity basis. The court also ordered that the Right of Entry Permit be updated to reflect the legal change in the name of the permit holder.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established