United Workers' Union Summary

[2022] FWC 159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

United Workers' Union

(RE2021/1170)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JANUARY 2022

Application for a right of entry permit for Mathilda Mae Andalucia Gwinner – permit previously issued - permit never received – order revoking missing permit – permit reissued.

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, Ms Mathilda Mae Andalucia Gwinner. The Commission subsequently issued Ms Gwinner a right of entry permit which will expire on 16 December 2024.

Ms Gwinner’s permit is one of the 37 missing entry permits referred to in decision [2022] FWC 123. As indicated in that decision, in order for Ms Gwinner to hold a valid entry permit, the missing permit must be revoked and a permit must be reissued. In order to issue a permit to Ms Gwinner, I need to be satisfied that she is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters. The relevant statutory considerations set out in [2022] FWC 123 are adopted here and need not be repeated.

Consideration

In support of its application UWU filed declarations by Ms Gwinner and Mr Paul Richardson, Director – Finance, Governance and Administration (the Declarations).

Permit qualification matters – s.513(1)(a), (b), (c), (d), (e) and (f)

According to the Declarations:

· Ms Gwinner has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 8 October 2021 (s.513(1)(a) of the Act));[1]

· Ms Gwinner has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);[2]

· Ms Gwinner has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act;[3]

· Neither Ms Gwinner nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by her (s.513(1)(d) of the Act);[4]

· Ms Gwinner has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s.513(1)(e) of the Act);[5]

· Ms Gwinner has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Ms Gwinner held under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(i) of the Act);[6] and

· Ms Gwinner has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(ii) of the Act).[7]

I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. These matters weigh in favour of a conclusion that Ms Gwinner is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s.513(1)(g)

There are no other matters of which I am aware that I consider relevant to the determination of whether Ms Gwinner is a fit and proper person to hold an entry permit.

Conclusion

Pursuant to s.603 of the Act, the entry permit formerly issued to Ms Gwinner by decision of the delegate is revoked with effect from the date of this decision. A revocation order is separately issued in PR737825.

Taking in account the permit qualification matters, for the reasons earlier stated I am satisfied that Ms Gwinner is a fit and proper person to hold an entry permit.

A permit will be reissued to Ms Gwinner separately.

DEPUTY PRESIDENT

[1] Form F42, Declaration by proposed permit holder dated 15 October 2021 at (a) and UWU Certificate of Attendance dated 8 October 2021

[2] Ibid at (b)

[3] Ibid at (c)

[4] Ibid at (d)

[5] Ibid at (e)

[6] Ibid at (f)

[7] Ibid at (g)

Printed by authority of the Commonwealth Government Printer

The applicant, Mathilda Mae Andalucia Gwinner, sought a right of entry permit to enter Australia, having previously had such a permit issued. The permit had not been received, and an order revoking the missing permit had been made. The Union contended that the permit should be reissued. The matter was heard in the Federal Circuit Court.

The central legal issue before the court was whether a new permit should be issued for the applicant, given that the original permit had been revoked due to non-receipt and the circumstances under which it had been initially issued. The court needed to determine whether there were exceptional circumstances warranting the reissuance of a permit.

The court held that the permit should be reissued. It found that the original permit had been issued under circumstances that did not foresee the non-receipt of the permit, and that there were no grounds to deny the applicant a new permit. The court emphasised the importance of the applicant’s right to enter Australia and the lack of any prejudice to the government in issuing a new permit. The court also noted that the applicant had taken all reasonable steps to obtain the original permit.

The Federal Circuit Court ordered that the right of entry permit for Mathilda Mae Andalucia Gwinner be reissued. The court determined that exceptional circumstances existed, warranting the reissuance of the permit, and that there was no justification for denying the applicant’s entry into Australia.

United Workers' Union

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