Transport Workers’ Union of Australia-South Australian/Northern Territory Branch

[2023] FWC 1285

[2023] FWC 1285

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Transport Workers’ Union of Australia-South Australian/Northern Territory Branch

(RE2023/412)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 1 JUNE 2023

Application for a right of entry permit for Matthew David Spring – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Spring is a fit and proper person to hold a permit – order revoking lost entry permit issued – permit issued.

1. The Transport Workers’ Union of Australia (TWU) 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, Matthew David Spring. Mr Spring is employed by the TWU as a Branch Official.

1. Mr Spring was issued an entry permit on 4 March 2022.[1] The expiry date for this permit is 4 March 2025. In a Statutory Declaration dated 1 May 2023, Mr Spring declared that the permit was in a wallet, in a bag, that blew off a jetty into the water and was subsequently lost on Sunday 12 March 2023.

1. The Commission does not appear to have a general power under the Act to replace a lost or stolen entry permit. In order for Mr Spring 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 lost, must be revoked and an application for a new permit to be issued must be made. To issue a permit to Mr Spring, 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 applicable principles for determining right of entry permit applications under s 512 are well settled and not controversial. They need not be restated.

Consideration

1. In support of its application the TWU filed declarations by Mr Spring and Mr Samuel Robert McIntosh, TWU South Australia/Northern Territory Branch Assistant Secretary (the Declarations).

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

1. According to the Declarations:

·   Mr Spring 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 21 September 2022 (s 513(1)(a) of the Act));[2]

·   Mr Spring has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[3]

·   Mr Spring 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;[4]

·   Neither Mr Spring 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);[5]

·   Mr Spring 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);[6]

·   Mr Spring has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Spring 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);[7] and

·   Mr Spring 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).[8]

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

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

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

Mr Spring’s existing permit

1. 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.

1. 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

…”

1. 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).

1. 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).

1. In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Mr Spring in matter RE2022/57.

Conclusion

1. Pursuant to s 603 of the Act, the entry permit RE2022/57 issued to Mr Spring by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR762674.

1. Taking into account the permit qualification matters, for the reasons earlier stated I am satisfied that Matthew David Spring 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 Spring is granted.

1. A permit will be separately issued.

DEPUTY PRESIDENT

[1] RE2022/57

[2] Form F42, Declaration by proposed permit holder dated 1 May 202 3at (a) and ACTU Federal Right of Entry Training Certificate of Completion dated 1 February 2022

[3] Ibid at (b)

[4] Ibid at (c)

[5] Ibid at (d)

[6] Ibid at (e)

[7] Ibid at (f)

[8] Ibid at (g)

Printed by authority of the Commonwealth Government Printer

<PR762673>