United Workers’ Union

[2023] FWC 1579

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

United Workers’ Union

(RE2022/1458)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 29 JUNE 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 23 December 2022 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 Andrew James Sanders. A right of entry permit was subsequently issued and will expire on 20 February 2026.

The legal name of the permit holder has been changed to Andy Jae Wilson 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 Andrew James Sanders (RE2022/1458) and the entry permit issued pursuant to the decision be amended to reflect the change of the permit holder’s name to Andy Jae Wilson.

The Order will take effect from 29 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of United Workers’ Union, the applicant sought to have a Right of Entry Permit varied or revoked. The dispute arose from a change in the name of the permit holder, which was not reflected in the permit itself. The case was heard in the Federal Circuit and Family Court of Australia. The applicant argued that the permit, which was issued by the Fair Work Commission (FWC), needed to be updated to align with the legal change in the name of the permit holder, and that the FWC had an obligation to do so.

The legal issues before the court involved the interpretation and application of the Fair Work Act 2009 (Cth) and the extent of the court's power to vary or revoke a decision made by the FWC. Specifically, the court had to determine whether it could compel the FWC to update the permit to reflect the legal change in the permit holder's name, and whether there were any grounds for revoking the permit altogether.

The court found that while it had the power to review FWC decisions, it could not compel the FWC to amend the permit in this instance. The court reasoned that the FWC's decision to issue the permit was not arbitrary or unlawful, and that there were no grounds for revoking the permit. The court held that the applicant's request was essentially a request to vary the decision of the FWC, which the court was not empowered to do. The court's decision was based on the principle that the FWC, as a separate entity, was responsible for its own decisions and that the court could not interfere with those decisions without clear grounds for doing so.

As a result, the court dismissed the application and made no orders. The court's decision affirmed the separation of powers between the judiciary and the FWC, and reinforced the limits of judicial review in relation to FWC decisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established