Shop, Distributive and Allied Employees Association

[2021] FWC 1820

[2021] FWC 1820

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Shop, Distributive and Allied Employees Association
(RE2021/189)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 8 APRIL 2021

Application for a right of entry permit for Tom Carrick-Smith - whether fit and proper person to hold an entry permit under the Act – satisfied that Mr Carrick-Smith is a fit and proper person to hold a permit – order revoking destroyed entry permit issued – permit issued.

[1] The Shop, Distributive and Allied Employees Association (SDA) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Mr Tom Carrick-Smith. Mr Carrick-Smith is employed by the SDA as an Organiser.

[2] Mr Carrick-Smith was issued an entry permit which will expire on 25 October 2022.¹ In a statutory declaration dated 28 October 2020, Mr Carrick-Smith declared that the permit had been misplaced. In a statutory declaration dated 26 March 2021, Mr Carrick-Smith declared that the permit was subsequently located in an office filing cabinet but was then destroyed.

[3] The Commission does not appear to have a general power under the Act to replace a lost or destroyed entry permit. It appears therefore that in order for Mr Carrick-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 destroyed, must be revoked and an application for a new permit to be issued must be made. In order that a permit be issued to Mr Carrick-Smith, 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.

Relevant statutory provisions and application

[4] The applicable principles for determining right of entry permit applications under s.512 are well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder the subject of an application for a permit is assessed taking into account the permit qualification matters set out in s.513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in someabstract sense. The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit, and to exercise the powers, functions and responsibilities attached to holding a permit. 2 The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.

[5] The permit qualification matters contained in s.513(1) are mandatory considerations which must be taken into account and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend), 3 that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision-making process.4 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:5

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant”. 6

[6] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend: 7

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".” 8

[7] Having regard to the structure and content of s.513, in deciding whether a proposed permit holder is a fit and proper person to hold an entry permit, all of the permit qualification matters identified in s.513(1) of the Act must be taken into account. The absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment, just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight.

[8] Section 513(1)(g) of the Act requires the Commission to take into account any other matter it considers relevant. A matter will be relevant if it can rationally affect the assessment of whether the proposed permit holder is a fit and proper person to hold an entry permit. Matters that may be relevant and therefore fall to be considered under s.513(1)(g) are matters that relate to the personal characteristics of the proposed permit holder and are pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.

[9] I turn to consider the application.

Consideration

[10] In support of its application the SDA filed declarations by Mr Carrick-Smith and Ms Sonia Romeo, SDA Branch Assistant Secretary (the Declarations).

[11] Mr Carrick-Smith’s current entry permit, due to expire on 25 October 2022, was issued with no conditions.⁹

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

[12] According to the Declarations:

•  Mr Carrick-Smith 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 19 February 2021 (s.513(1)(a) of the Act)); 10 

•  Mr Carrick-Smith has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act); 11

•  Mr Carrick-Smith 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; 12

•  Neither Mr Carrick-Smith 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); 13

•  Mr Carrick-Smith 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); 14

•  Mr Carrick-Smith has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Carrick-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); 15 and

•  Mr Carrick-Smith 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). 16

[13] 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 Carrick-Smith is a fit and proper person to hold a right of entry permit.

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

[14] There are no other matters of which I am aware that I consider relevant to the determination of whether Mr Carrick-Smith is a fit and proper person to hold an entry permit.

Mr Carrick-Smith’s existing permit

[15] As mentioned earlier,the Commission does not have a general power under the Act to replace an entry permit that is lost or destroyed. 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.

[16] 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

…”

[17] 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).

[18] 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).

[19] In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Mr Carrick-Smith in matter RE2019/897.

Conclusion

[20] Pursuant to s.603 of the Act, the entry permit RE2019/897 issued to Mr Carrick-Smith by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR728350.

[21] Taking in account the permit qualification matters, for the reasons earlier stated I am satisfied that Mr Tom Carrick-Smith 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 Carrick-Smith is granted.

[22] A permit will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR728349>

1 RE2018/935

 2   Maritime Union of Australia [2014] FWCFB 1973 at [23]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, [2015] FWC 1522 at [32]

 3 [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional

Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the

Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

 4   Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and

Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail

Association v Fair Work Commission [2014] FCAFC 118

 5 (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62]

and by Katzmann J in Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74

at [103]

 6 (1987) 16 FCR 167 at 184

 7 [1986] HCA 40, (1986) 162 CLR 24

 8   Ibid at [15], p 41

9 RE2019/897

 10   Form F42, Declaration by proposed permit holder dated 24 February 2021 at (a) and Statutory Declaration by Sean Hill dated 22 February 2021

 11   Ibid at (b)

 12   Ibid at (c)

 13   Ibid at (d)

 14   Ibid at (e)

 15   Ibid at (f)

 16   Ibid at (g)