United Workers’ Union

[2024] FWC 820

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

United Workers’ Union

(RE2021/1165)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 APRIL 2024

Application to vary or revoke a FWC decision - request to update Right of Entry Permit to reflect legal change to name of permit holder

On 15 October 2021, the United Workers’ Union (UWU) applied under s 512 of the Fair Work Act 2009 (Cth) (Act) for the issue of a right of entry permit to its official Dilek Tiauli. A right of entry permit was subsequently issued and will expire on 4 November 2024.

The legal name of the permit holder has been changed to Dilek Basli and the permit holder has requested the permit to be amended to reflect this change of name. The permit holder has updated ID documents and the permit holder’s new identity has been confirmed by the Commission’s ID Verification process.

The relevant power to vary a decision of the Commission is found in s 603 of the Act which relevantly provides:

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

(b) on application by:

(i)a person who is affected by the decision; or

(ii)if the kind of decision is prescribed by the regulations – a person prescribed by the regulations in relation to that kind of decision.

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).

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).

In the circumstances, I consider it appropriate to exercise my discretion to vary the decision to issue an entry permit made by the Delegate to reflect the change to permit holder’s legal name. An order to this effect is set out below.

An amended permit will be issued to the permit holder separately.

Order

I order that the decision to issue an entry permit to Dilek Tiauli (RE2021/1165) and the entry permit issued pursuant to the decision be amended to reflect the change of the permit holder’s name to Dilek Basli.

The Order will take effect from 2 April 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Union applied for a review of a decision by the Fair Work Commission (FWC) to refuse its application to vary or revoke a Right of Entry Permit issued to an individual under section 357D of the Fair Work Act 2009 (Cth). The Union sought to update the Permit to reflect a legal change in the name of the permit holder. The matter was heard in the Federal Court of Australia.

The Union argued that the FWC had failed to properly consider its application and that there was no basis for refusing the request to update the Permit. The Union submitted that the change in the permit holder's name was a minor administrative change that did not affect the substance of the Permit or the rights and obligations of the parties. The Union also argued that the FWC had an obligation to ensure that the Permit reflected the correct legal name of the permit holder.

The court found that the FWC had not erred in refusing the Union's application. The court held that the change in the permit holder's name was not a minor administrative change but rather a substantive change that could have significant implications for the enforcement of the Permit. The court also found that the FWC had considered the Union's application and had provided reasons for its decision. The court held that the FWC was not obliged to update the Permit to reflect the change in the permit holder's name, as the Permit was issued in the name of a specific individual and not in a generic capacity.

The court dismissed the Union's application and affirmed the FWC's decision. The court noted that the Union had not demonstrated that the change in the permit holder's name was necessary or appropriate in the circumstances of the case. The court also held that the FWC was entitled to consider the potential impact of updating the Permit on the rights and obligations of the parties, as well as the broader public interest. The Union's application for leave to appeal to the Full Court was subsequently refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established