United Workers' Union Summary

[2022] FWC 158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

United Workers' Union

(RE2021/1368)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JANUARY 2022

Application for a right of entry permit for Kylie Joan Muscat – 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 Kylie Joan Muscat. The Commission subsequently issued Ms Muscat a right of entry permit which will expire on 21 December 2024.

Ms Muscat’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 Muscat 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 Muscat, 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 Muscat 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 Muscat 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 5 October 2021 (s.513(1)(a) of the Act));[1]

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

· Ms Muscat 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 Muscat 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 Muscat 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 Muscat has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Ms Muscat 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 Muscat 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 Muscat 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 Muscat 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 Muscat 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 Muscat is a fit and proper person to hold an entry permit.

A permit will be reissued to Ms Muscat separately.

DEPUTY PRESIDENT

[1] Form F42, Declaration by proposed permit holder dated 15 December 2021 at (a) and UWU Certificate of Attendance dated 5 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 case involved an application for a right of entry permit for Kylie Joan Muscat, who had previously been issued a permit. However, the permit was never received. The matter was before the Court, which had to decide whether the permit should be revoked and subsequently reissued. The legal issues centred on whether the original permit had been effectively revoked and whether it was appropriate to reissue the permit to the applicant.

The court considered the circumstances surrounding the non-receipt of the permit and the steps that had been taken to address the situation. It examined the procedures in place for issuing and revoking permits and assessed whether the correct protocols had been followed. The court also evaluated the potential consequences of the permit not being received by the applicant, including any implications for her rights and entitlements.

In its decision, the court determined that the original permit had indeed been revoked due to the permit not being received by the applicant. However, it found that it was appropriate to reissue the permit to the applicant, given the circumstances. The court considered the applicant's need for the permit and the potential impact of not having it, and concluded that the best course of action was to reissue the permit. This decision was based on a balance of the relevant factors and the need to ensure that the applicant's rights and entitlements were protected.

The court's final orders included the revocation of the original permit and the issuance of a new permit to the applicant. The court emphasised the importance of ensuring that permits are properly received by applicants and highlighted the need for clear procedures to be in place for the issuance and revocation of permits. The decision provides guidance for future cases involving similar issues and underscores the importance of protecting the rights and entitlements of permit holders.

United Workers' Union

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