Shop, Distributive and Allied Employees Association

[2023] FWC 2652

[2023] FWC 2652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Shop, Distributive and Allied Employees Association

(RE2023/841)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 12 OCTOBER 2023

Application for a right of entry permit for Adam Kalat Gebremaskel – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Gebremaskel is a fit and proper person to hold a permit – order revoking lost entry permit issued – permit issued.

1. The Shop, Distributive and Allied Employees Association (SDA) has applied to the Commission under s 512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Adam Kalat Gebremaskel, who is employed by the SDA as an Organiser.

1. Mr Gebremaskel was issued an entry permit on 21 May 2021.[1] The expiry date for this permit is 21 May 2024. In a Statutory Declaration dated 28 August 2022, Mr Gebremaskel declared that the permit was lost in the process of relocating residence and despite having taken all reasonable steps to locate the permit, it has not been found. He further declared that he has not exercised any rights of entry during the period since losing the permit and undertakes to return it to the Commission in the event it is found.

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 Mr Gebremaskel 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. To issue a permit to Mr Gebremaskel, I need to be satisfied that he is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters. The applicable principles for determining right of entry permit applications under s 512 are well settled and not controversial. They need not be restated.

Consideration

1. In support of its application the SDA filed declarations by Mr Gebremaskel and Ms Jo Clossick, SDA Western Australia Branch Secretary (the Declarations).

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

1. According to the Declarations:

·   Mr Gebremaskel 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 4 September 2023 (s 513(1)(a) of the Act));[2]

·   Mr Gebremaskel has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[3]

·   Mr Gebremaskel 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;[4]

·   Mr Gebremaskel 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 him (s 513(1)(d) of the Act);[5]

·   Mr Gebremaskel 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);[6]

·   Mr Gebremaskel has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Gebremaskel 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);[7] and

·   Mr Gebremaskel 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).[8]

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 Mr Gebremaskel is a fit and proper person to hold a right of entry permit.

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

1. There are no other matters of which I am aware that I consider relevant to the determination of whether Mr Gebremaskel is a fit and proper person to hold an entry permit.

Mr Gebremaskel’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:

“603 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

…”

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 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).

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).

1. In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Mr Gebremaskel in matter RE2021/458.

Conclusion

1. Pursuant to s 603 of the Act, the entry permit RE2021/458 issued to Mr Gebremaskel by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR767145.

1. Taking into account the permit qualification matters, for the reasons earlier stated I am satisfied that Adam Kalat Gebremaskel is a fit and proper person to hold an entry permit. The application by the SDA for an entry permit to be issued to Mr Gebremaskel is granted.

1. A permit will be separately issued.

DEPUTY PRESIDENT

[1] RE2021/458

[2] Form F42, Declaration by proposed permit holder dated 8 September 2023 at (a) and ACTU Federal Right of Entry Training Certificate of Completion dated 4 September 2023

[3] Ibid at (b)

[4] Ibid at (c)

[5] Ibid at (d)

[6] Ibid at (e)

[7] Ibid at (f)

[8] Ibid at (g)

Printed by authority of the Commonwealth Government Printer

<PR767144>