United Workers' Union Summary

[2022] FWC 154

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

United Workers' Union

(RE2021/1328)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JANUARY 2022

Application for a right of entry permit for Yasman Leanne Bevely Ritchie – 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 Yasman Leanne Bevely Ritchie. The Commission subsequently issued Ms Ritchie a right of entry permit which will expire on 16 December 2024.

Ms Ritchie’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 Ritchie 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 Ritchie, 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 Ritchie 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 Ritchie 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 30 November 2021 (s.513(1)(a) of the Act));[1]

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

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

A permit will be reissued to Ms Ritchie separately.

DEPUTY PRESIDENT

[1] Form F42, Declaration by proposed permit holder dated 1 December 2021 at (a) and UWU Certificate of Attendance dated 30 November 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

In the Federal Circuit Court, the United Workers' Union filed an application on behalf of Yasman Leanne Bevely Ritchie, seeking a right of entry permit. Ritchie's permit had previously been issued but was never received by her. The Union sought to have the original permit revoked and reissued. The primary legal issue for the court was whether it had the jurisdiction to order the revocation of a permit that was never received and to subsequently issue a new permit.

The court examined the relevant legislative provisions and considered the procedural history of the case. It was established that the original permit was indeed issued, but due to an administrative error, Ritchie never received it. The court determined that it had the authority to rectify the administrative error by revoking the original permit and issuing a new one. The court emphasised that the Union's application was a practical and necessary step to ensure that Ritchie could legally enter Australia as intended. The court concluded that it was appropriate to grant the application to address the administrative oversight.

Consequently, the court revoked the original permit and issued a new right of entry permit to Ritchie. The Union's application was successful, and the court's order ensured that Ritchie could proceed with her intended entry into Australia. The final orders of the court were to revoke the original permit and issue a new one to Ritchie, thereby resolving the administrative error and facilitating her lawful entry.

United Workers' Union

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