United Workers’ Union - [2023] FWC 417

[2023] FWC 417

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

United Workers’ Union

(RE2022/1458)

DEPUTY PRESIDENT DOBSON

BRISBANE, 20 FEBRUARY 2023

Application for a right of entry permit for Andrew James Sanders – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Sanders 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, Andrew James Sanders. Mr Sanders is employed by the UWU as a Member Rights Officer.

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…

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 417
Decision Date: 20 FEBRUARY 2023

CaseChat Overview and Summary

The case involved an application by Andrew James Sanders for a right of entry permit under relevant Australian legislation. The dispute centred on whether Mr Sanders was a fit and proper person to hold such a permit. This matter was heard and determined by the court. The central legal issue revolved around assessing Mr Sanders’ suitability to hold an entry permit, taking into account his background, character, and any other relevant factors prescribed by the Act. The court needed to determine if there were any grounds that would disqualify him from being considered fit and proper.

The court undertook a thorough examination of the evidence and submissions presented by both parties. It considered Mr Sanders’ character, his history, and any other pertinent factors that could impact his suitability. The court found that, based on the evidence, Mr Sanders satisfied the criteria for being deemed a fit and proper person to hold an entry permit. Consequently, the court concluded that there were no valid reasons to deny his application. The court's decision was grounded in a detailed analysis of the statutory requirements and the specific circumstances of Mr Sanders’ case.

As a result of the court’s findings, Mr Sanders was deemed a fit and proper person to hold a permit. The court issued the requested permit to Mr Sanders, affirming his eligibility under the relevant legislation. The decision was based on a comprehensive assessment of the evidence and a careful consideration of the legal standards applicable to such permit applications.

Orders