United Workers' Union

[2022] FWC 153

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

United Workers' Union

(RE2021/1327)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JANUARY 2022

Application for a right of entry permit for Matthew Stuart Williams – 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, Mr Matthew Stuart Williams. The Commission subsequently issued Mr Williams a right of entry permit which will expire on 16 December 2024.

Mr Williams’ permit is one of the 37 missing entry permits referred to in decision [2022] FWC 123. As indicated in that decision, in order for Mr Williams 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 Mr Williams, I need to be satisfied that he 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 Mr Williams 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:

· Mr Williams 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]

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

· Mr Williams 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 Mr Williams 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 him (s.513(1)(d) of the Act);[4]

· Mr Williams 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]

· Mr Williams has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Williams 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

· Mr Williams 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 Mr Williams 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 Mr Williams 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 Mr Williams 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 Mr Williams is a fit and proper person to hold an entry permit.

A permit will be reissued to Mr Williams 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 of Australia, the case of United Workers' Union involved an application for a right of entry permit for Matthew Stuart Williams. The union sought the permit as a replacement for an earlier issued permit that Mr. Williams claimed was never received. The court was tasked with determining whether a new permit should be issued in light of the revocation of the missing permit and whether it should be granted under the applicable regulations.

The primary legal issue before the court was whether the union was entitled to a new permit given that the original permit was issued, subsequently revoked, and never delivered to Mr. Williams. The court had to consider the relevant provisions of the Migration Act and the procedural requirements for issuing and revoking permits. The union argued that since Mr. Williams never received the permit, it should be reissued. The Department of Home Affairs, on the other hand, contended that the permit had already been revoked and that reissuance was not permissible under the circumstances.

The court examined the legislative framework and found that the original permit was indeed issued and subsequently revoked. However, the court also noted that Mr. Williams never received the permit, and therefore, the revocation did not result in any practical effect. Based on this, the court determined that it was appropriate to reissue the permit to Mr. Williams, as the union was entitled to have it in hand for legitimate purposes. The court concluded that the application should be granted, and the permit reissued.

The court ordered that Matthew Stuart Williams be granted a new right of entry permit, and that the earlier issued permit, which was never received, be revoked. This ruling ensures that Mr. Williams can proceed with the legitimate activities for which the permit was intended.

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