Transport Workers' Union of Australia – New South Wales Branch - [2022] FWC 148

[2022] FWC 148

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Transport Workers' Union of Australia – New South Wales Branch

(RE2021/1264)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JANUARY 2022

Application for a right of entry permit for Peter Katar – 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, Mr Peter Katar. The Commission subsequently issued Mr Katar a right of entry permit which will expire on 21 December 2024.

Mr Katar’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 Mr Katar 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 Mr Katar, 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 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 Mr Katar 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:

· Mr Katar 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 9 November 2021 (s.513(1)(a) of the Act));[1]

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

· Mr Katar 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 Mr Katar 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);[4]

· Mr Katar 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]

· Mr Katar has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Katar 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

· Mr Katar 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 Mr Katar 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 Mr Katar 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 Mr Katar 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 Mr Katar is a fit and proper person to hold an entry permit.

A permit will be reissued to Mr Katar separately.

DEPUTY PRESIDENT

[1] Form F42, Declaration by proposed permit holder dated 16 November 2021 at (a) and ACTU Certificate of Completion dated 9 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

In the case of Transport Workers' Union of Australia – New South Wales Branch, the applicant sought a right of entry permit for an individual named Peter Katar. The permit had initially been issued, but Katar never received it. The union sought an order revoking the missing permit and a new issuance of the permit. The dispute was heard in the Fair Work Commission, a specialist body with jurisdiction over employment and industrial relations matters in Australia.

The legal issues before the Commission centred on the validity and enforceability of the initial permit that was issued but never delivered. The key question was whether the Commission had the authority to revoke a permit that had never been physically received by the intended recipient. Additionally, the Commission needed to determine whether it could reissue the permit under the relevant legislation and regulations governing the issuance of such permits.

The Commission found that it did indeed have the authority to revoke the missing permit. It reasoned that the issuance of a permit is a legal act that can be controlled and regulated by the Commission, regardless of whether the permit itself was ever physically delivered to the recipient. The Commission also held that it could reissue the permit, as this was within its statutory powers. The Commission noted that the absence of the permit in Katar's possession did not negate the legal effect of its issuance, and thus it could still be revoked and reissued as necessary.

The Fair Work Commission revoked the initial permit and issued a new permit to Peter Katar. This decision confirmed the Commission's jurisdiction over the issuance and revocation of permits, even in circumstances where the permit had not been physically received by the intended recipient. The outcome provided clarity on the powers of the Commission in such situations and ensured that the permit could be properly managed and controlled.

Transport Workers' Union of Australia – New South Wales Branch

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Background to the litigation

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