Transport Workers' Union of Australia-NSW/QLD (Interim Governance) Branch
[2024] FWC 2166
•16 AUGUST 2024
| [2024] FWC 2166 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Transport Workers’ Union of Australia-NSW/QLD (Interim Governance) Branch
(RE2024/807)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 16 AUGUST 2024 |
Application for a right of entry permit for Thomas Potter Millroy – whether a fit and proper person to hold an entry permit under the Act – satisfied Mr Millroy is a fit and proper person to hold a permit – order revoking lost entry permit issued – permit issued
The Transport Workers’ Union of Australia (TWU) applied to the Commission under s 512 of the Fair Work Act 2009 (Cth) (the Act) for a right of entry permit to be issued to its employee, Mr Thomas Potter Millroy, who is an Organiser in the TWU’s New South Wales/Queensland (Interim Governance) Branch.
Mr Millroy was issued an entry permit on 21 February 2022,[1] which will expire on 21 February 2025. In a statutory declaration dated 15 July 2024, Mr Millroy declared that he lost or misplaced the permit at some point prior to 12 July 2024.
The Commission does not appear to have general power under the Act to replace a lost or stolen entry permit. For Mr Millroy to hold a valid entry permit and 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, and as noted above, has been made. 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
In support of its application the TWU filed declarations by Mr Richard Olsen, TWU NSW/Qld (Interim Governance) Branch Secretary dated 1 August 2024 and 22 December 2021 and statutory declarations by Mr Millroy dated 15 July 2024 and 5 August 2024, and a declaration dated 2 August 2024 (the Declarations).
Permit qualification matters – s 513(1)(a), (b), (c), (d), (e) and (f)
According to the Declarations and the material which accompanies them:
· Mr Millroy has received 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 on 1 August 2024,[2] as well as on 2 December 2021.[3] The course of training conducted by the ACTU Trade Union Institute is a course approved by the Commission and the training completed by Mr Millroy is relevantly appropriate (s 513(1)(a) of the Act);
· Mr Millroy has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[4]
· Mr Millroy 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;[5]
· Neither Mr Millroy 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);[6]
· Mr Millroy has not had any entry permit issued under Part 3-4 of the Act or similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permits (s 513(1)(e) of the Act);[7]
· Mr Millroy has not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes that Mr Millroy 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);[8] and
· Mr Millroy 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 safe law (s 513(1)(f)(ii) of the Act).[9]
I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. I further note that I am advised that the Fair Work Ombudsman has been provided the opportunity to respond to the application but has not. These matters weigh in favour of a conclusion that Mr Millroy 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 Millroy is a fit and proper person to hold an entry permit.
Mr Millroy’s existing permit
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.
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 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 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
…”
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)). Subsection 603(3) expressly excludes certain classes of decisions from the scope of the general power to vary 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) of the Act 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) of the Act.
In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Mr Millroy in matter RE2021/1422.
Conclusion
Pursuant to s 603 of the Act, the entry permit RE2021/1422 issued to Mr Millroy by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR778409.
Taking into account the permit qualification matters and for the reasons earlier stated, I am satisfied that Thomas Potter Millroy is a fit and proper person to hold an entry permit. The application by the TWU for an entry permit to be issued to Mr Millroy is granted.
A permit will be separately issued.
DEPUTY PRESIDENT
Determined on the papers.
[1] RE2021/1422.
[2] ACTU Federal Right of Entry Training Certificate of Completion dated 1 August 2024; Form F42, Declaration by member of Committee of Management dated 2 August 2024 at (4); Form F42, Declaration by proposed permit holder dated 2 August 2024.
[3] Form F42, Declaration by member of Committee of Management 22 December 2021; Form F42, Declaration by proposed permit holder dated 22 December 2021.
[4] Form F42, Declaration by proposed permit holder dated 2 August 2024 (2)(b); Form F42, Declaration by member of Committee of Management dated 2 August 2024 (2)(a).
[5] Form F42, Declaration by proposed permit holder dated 2 August 2024 (2)(c); Form F42, Declaration by member of Committee of Management dated 2 August 2024 at (2)(b).
[6] Form F42, Declaration by proposed permit holder dated 2 August 2024 (2)(d); Form F42, Declaration by member of Committee of Management dated 2 August 2024 at (2)(c).
[7] Form F42, Declaration by proposed permit holder dated 2 August 2024 (2)(e); Form F42, Declaration by member of Committee of Management dated 2 August 2024 at (2)(d).
[8] Form F42, Declaration by proposed permit holder dated 2 August 2024 (2)(f); Form F42, Declaration by member of Committee of Management dated 2 August 2024 at (2)(e).
[9] Form F42, Declaration by proposed permit holder dated 2 August 2024 (2)(g); Form F42, Declaration by member of Committee of Management dated 2 August 2024 at (2)(f).
Printed by authority of the Commonwealth Government Printer
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