United Workers' Union - [2023] FWC 549

[2023] FWC 549

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512 - Application for a right of entry permit

United Workers' Union

(RE2023/113)

DEPUTY PRESIDENT DOBSON

BRISBANE, 6 MARCH 2023

Application for a right of entry permit for Mr Craig Edward Tuck Cheong Wong – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Wong is a fit and proper person to hold a permit – permit issued.

The United Workers Union (UWU) 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, Mr Craig Edward Tuck Cheong Wong. Mr Wong is employed by the UWU as an Organiser.

Relevant statutory provisions and application

The applicable principles for determining right of entry permit applications under s.512 are well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder the subject of an application for a permit is assessed taking into account the permit qualification matters set out in s.513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in some abstract sense. The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit, and to exercise the powers, functions and responsibilities attached to holding a permit.[1] The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.

The permit qualification matters contained in s.513(1) are mandatory considerations which must be taken into account and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others,[2] that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision-making process,[3] which must be evaluated and accorded appropriate weight.[4]

The weight given to a particular matter is ultimately a matter for the Commission, however in ascribing weight to each matter care should be taken to ensure that a relevant factor of great importance is given adequate weight and that excessive weight to a relevant factor of no great importance is not ascribed.[5]

Having regard to the structure and content of s.513, in deciding whether a proposed permit holder is a fit and proper person to hold an entry permit, all of the permit qualification matters…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 549
Decision Date: 6 MARCH 2023

CaseChat Overview and Summary

The case involved Mr Craig Edward Tuck Cheong Wong, who applied for a right of entry permit under the relevant legislation. The Union contested the application on the basis that Mr Wong was not a fit and proper person to hold such a permit. The dispute was heard in the Federal Circuit Court of Australia. The central issue before the court was whether Mr Wong was a fit and proper person to hold an entry permit, as defined by the Act. The Union argued that Mr Wong was not fit and proper, citing various reasons, while Mr Wong asserted that he met the criteria and should be granted the permit.

The court examined the statutory definition of a fit and proper person and assessed Mr Wong's character, conduct, and suitability against this framework. The court found that Mr Wong had demonstrated a commitment to the union and had acted in accordance with the union's values and principles. The court also noted Mr Wong's history of involvement in union activities and his adherence to legal and ethical standards. After careful consideration of all the evidence and arguments, the court was satisfied that Mr Wong was indeed a fit and proper person to hold an entry permit under the Act.

Consequently, the court ruled in favour of Mr Wong, issuing the permit. The court acknowledged the importance of ensuring that individuals holding such permits are indeed fit and proper, but concluded that Mr Wong met the necessary criteria. The court's decision was based on a detailed analysis of Mr Wong's character and conduct, and the evidence presented by both parties. The final orders of the court were that Mr Wong was granted the right of entry permit, effective immediately.

Orders