United Workers’ Union - [2023] FWC 419

[2023] FWC 419

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

United Workers’ Union

(RE2023/43)

DEPUTY PRESIDENT DOBSON

BRISBANE, 20 FEBRUARY 2023

Application for a right of entry permit for Tony F Smeriglio – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Smeriglio 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, Tony F Smeriglio. Mr Smeriglio is employed by the UWU as a Member 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 identified in s.513(1) of the Act must be taken into account.…

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 419
Decision Date: 20 FEBRUARY 2023

CaseChat Overview and Summary

The case involved Tony F Smeriglio, who applied for a right of entry permit under Australian law. The primary issue was whether Smeriglio was a fit and proper person to hold such a permit, as defined by the relevant statutes. The matter was heard and determined by the court, which was tasked with examining the specific criteria and evidence presented regarding Smeriglio's fitness and propriety.

The court considered the statutory requirements and evaluated Smeriglio's character, conduct, and other relevant factors to ascertain his suitability. It examined whether he had any criminal history, associations, or other issues that might disqualify him from holding the permit. The court also took into account his professional background, reputation, and any other pertinent information that could influence the decision.

After a thorough review, the court found that Smeriglio met the necessary standards to be deemed a fit and proper person. It was satisfied with the evidence and arguments presented, concluding that he was eligible to hold the permit. Consequently, the court issued the permit to Smeriglio, affirming his eligibility under the law.

No additional orders were made beyond the issuance of the permit. The court's decision was based solely on the assessment of Smeriglio's fitness and propriety as required by the legislation.

Orders