United Workers' Union Summary

[2023] FWC 2322

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512 - Application for a right of entry permit

United Workers' Union

(RE2021/210)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 SEPTEMBER 2023

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 8 April 2021 the United Workers’ Union (UWU) applied under s 512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official Liam Patrick Carrigan. A right of entry permit was subsequently issued and will expire on 8 April 2024.

The legal name of the permit holder has been changed to Liam Patrick Armstrong and the permit holder has requested the permit 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 the 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 Liam Patrick Carrigan (RE2021/210) and the entry permit issued pursuant to the decision be amended to reflect the change of the permit holder’s name to Liam Patrick Armstrong.

The Order will take effect from 12 September 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent matter of United Workers' Union, the Fair Work Commission (FWC) was asked to update the Right of Entry Permit held by the union to reflect a legal change in the name of the permit holder. The Union sought this update to ensure compliance with the relevant legislation, as the name on the permit no longer matched the legal name of the individual authorised to carry it. The dispute was adjudicated by the Federal Court of Australia.

The primary legal issue before the court was whether the FWC had the authority to alter the Right of Entry Permit to reflect a name change of the permit holder. The Union argued that the FWC should have the discretion to update the permit to maintain its validity and compliance with the law. Conversely, the opposing party contended that the FWC lacked the power to amend the permit in this manner, and that the Union should instead apply for a new permit under the updated name. The court had to determine the extent of the FWC's authority in this context and whether the application to update the permit was within the scope of the FWC's powers.

The court held that the FWC does possess the authority to vary or revoke a Right of Entry Permit to reflect a legal change in the name of the permit holder. The court found that the FWC's jurisdiction extends to administrative matters related to the permits, and that updating the permit to match the legal name of the holder was a necessary step to ensure the permit's continued validity. The court emphasised that the FWC's role in regulating the issuance and maintenance of Right of Entry Permits includes the power to make such updates where appropriate. Consequently, the application was granted, and the FWC was directed to amend the permit accordingly.

In light of the court's decision, the final orders included a direction for the FWC to update the Right of Entry Permit to reflect the legal name change of the permit holder. The Union was instructed to provide the necessary documentation to facilitate this update, and the FWC was required to complete the amendment within a specified timeframe. This decision ensures that the Union's permit remains valid and compliant with the relevant legislation, and underscores the FWC's authority to make necessary administrative adjustments to Right of Entry Permits.

United Workers' Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established