Transport Workers' Union of Australia – Queensland Branch - [2022] FWC 150

[2022] FWC 150

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Transport Workers' Union of Australia – Queensland Branch

(RE2021/1310)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JANUARY 2022

Application for a right of entry permit for Shane David Pierpoint – 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 Shane David Pierpoint. The Commission subsequently issued Mr Pierpoint a right of entry permit which will expire on 20 December 2024.

Mr Pierpoint’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 Pierpoint 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 Pierpoint, 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 Pierpoint 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 Pierpoint 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 17 November 2021 (s.513(1)(a) of the Act));[1]

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

· Mr Pierpoint 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 Pierpoint 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 Pierpoint 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 Pierpoint has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Pierpoint 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 Pierpoint 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 Pierpoint 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 Pierpoint 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 Pierpoint 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 Pierpoint is a fit and proper person to hold an entry permit.

A permit will be reissued to Mr Pierpoint separately.

DEPUTY PRESIDENT

[1] Form F42, Declaration by proposed permit holder dated 24 November 2021 at (a) and ACTU Certificate of Completion dated 17 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 Fair Work Commission, the Transport Workers' Union of Australia, Queensland Branch, filed an application concerning the issuance of a right of entry permit for Shane David Pierpoint. The permit had initially been granted but was never delivered to the applicant, leading to a request for its revocation and subsequent reissuance. The matter was heard and determined by the Commission, comprising of Deputy President S. J. Harper, R. J. Crawford, and D. M. Maher.

The central legal issue before the Commission was whether the initial permit, which had been issued but not received by the applicant, should be revoked and subsequently reissued. The Commission had to consider the implications of the permit not being in the applicant's possession and the procedural steps necessary to rectify the situation. This included assessing whether the failure to deliver the permit constituted a breach of the legislative framework governing the issuance of such permits.

The Commission found that the initial permit had indeed not been delivered to the applicant, thereby necessitating its revocation. The Commission concluded that the proper course of action was to revoke the missing permit and then reissue a new one to the applicant. This decision was based on the need to ensure that the permit was correctly and effectively in the possession of the applicant to fulfil its intended purpose. The Commission ordered the revocation of the original permit and the issuance of a new permit to Shane David Pierpoint, ensuring compliance with the relevant legislative requirements.

Transport Workers' Union of Australia – Queensland Branch

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established