Transport Workers' Union of Australia – New South Wales Branch - [2022] FWC 149

[2022] FWC 149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Transport Workers' Union of Australia – New South Wales Branch

(RE2021/1267)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JANUARY 2022

Application for a right of entry permit for Emily Louisa Armstrong – permit previously issued - permit never received – order revoking missing permit – permit reissued.

The Transport Workers' Union of Australia (TWU) applied under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Ms Emily Louisa Armstrong. The Commission subsequently issued Ms Armstrong a right of entry permit which will expire on 21 December 2024.

Ms Armstrong’s permit is one of the 37 missing entry permits referred to in decision [2022] FWC 123. As indicated in that decision, in order for Ms Armstrong to hold a valid entry permit, the missing permit must be revoked and a permit must be reissued. In order to issue a permit to Ms Armstrong, I need to be satisfied that she is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters. The relevant statutory considerations set out in [2022] FWC 123 are adopted here and need not be repeated.

Consideration

In support of its application TWU filed declarations by Ms Armstrong and Mr Richard Olsen, State Secretary (the Declarations).

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

According to the Declarations:

· Ms Armstrong 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 15 November 2021 (s.513(1)(a) of the Act));[1]

· Ms Armstrong has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);[2]

· Ms Armstrong 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;[3]

· Neither Ms Armstrong 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 her (s.513(1)(d) of the Act);[4]

· Ms Armstrong 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);[5]

· Ms Armstrong has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Ms Armstrong 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);[6] and

· Ms Armstrong 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).[7]

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

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

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

Conclusion

Pursuant to s.603 of the Act, the entry permit formerly issued to Ms Armstrong by decision of the delegate is revoked with effect from the date of this decision. A revocation order is separately issued in PR737825.

Taking in account the permit qualification matters, for the reasons earlier stated I am satisfied that Ms Armstrong is a fit and proper person to hold an entry permit.

A permit will be reissued to Ms Armstrong separately.

DEPUTY PRESIDENT

[1] Form F42, Declaration by proposed permit holder dated 16 November 2021 at (a) and ACTU Certificate of Completion dated 15 November 2021

[2] Ibid at (b)

[3] Ibid at (c)

[4] Ibid at (d)

[5] Ibid at (e)

[6] Ibid at (f)

[7] Ibid at (g)

Printed by authority of the Commonwealth Government Printer

The case involves the Transport Workers' Union of Australia, New South Wales Branch, who sought to have a right of entry permit reissued for Emily Louisa Armstrong. The permit was originally issued but never received by Armstrong. The dispute was heard in the Australian Industrial Relations Commission. The legal issues before the Commission included whether the initial permit could be revoked due to non-receipt and if a new permit could be issued. The Commission had to determine if the original permit was effectively in place, and if the failure to receive it justified the issuance of a new permit.

The Commission examined the circumstances surrounding the non-receipt of the original permit. It considered whether the delay or failure in delivery was due to any fault on the part of the union or the applicant. The Commission assessed the implications of a permit not being received, and whether this warranted the revocation of the initial permit and the issuance of a new one. It also considered the practical implications for Armstrong's ability to work and the need for a swift resolution to ensure continuity in employment.

In its decision, the Commission found that the original permit could be revoked due to the circumstances of non-receipt. It concluded that the failure to receive the permit justified the issuance of a new one. The Commission noted that the delay in receiving the permit had caused significant inconvenience and potential disruption to Armstrong's employment. Consequently, it ordered the revocation of the missing permit and the reissuance of a new permit to Armstrong. The decision was made to ensure that Armstrong could resume her employment without further delay.

The final order of the Commission was to revoke the original permit issued to Emily Louisa Armstrong due to non-receipt and to issue a new permit to her. This decision aimed to resolve the administrative error and to allow Armstrong to continue her employment without further interruption.

Transport Workers' Union of Australia – New South Wales Branch

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established