United Workers' Union

[2022] FWC 151

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

United Workers' Union

(RE2021/1245)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JANUARY 2022

Application for a right of entry permit for Jo-Anne Elizabeth Schofield – 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 Jo-Anne Elizabeth Schofield. The Commission subsequently issued Ms Schofield a right of entry permit which will expire on 20 December 2024.

Ms Schofield’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 Schofield 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 Schofield, 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 Schofield 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 Schofield 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 14 May 2021 (s.513(1)(a) of the Act));[1]

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

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

A permit will be reissued to Ms Schofield separately.

DEPUTY PRESIDENT

[1] Form F42, Declaration by proposed permit holder dated 11 November 2021 at (a) and UWU Certificate of Attendance dated 14 May 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 United Workers' Union sought an order from the Fair Work Commission, under Section 243 of the Fair Work Act 2009, for a right of entry permit for Jo-Anne Elizabeth Schofield. The dispute arose from a previous permit issued to Schofield, which had not been received by her. Consequently, an order was made revoking the missing permit, and the Union sought a reissue of the permit.

The primary legal issue before the Commission was whether a permit could be reissued after a previous permit had been revoked due to non-receipt. The Commission considered the statutory provisions and the objectives of the Act, particularly in ensuring that entry permits were only held by those who intended to use them for the purposes allowed by law. The Union argued that the revocation of the permit was unjust, given the circumstances of its non-receipt, and sought the reissue of the permit to Schofield.

The Commission found that the objectives of the Fair Work Act were best served by reissuing the permit, taking into account the specific circumstances of the case. The Commission emphasised the importance of ensuring that permits were used for legitimate purposes and that the revocation and reissue processes were handled fairly and in accordance with the law. Based on the evidence presented and the considerations outlined, the Commission granted the Union's application and ordered the reissue of the permit to Schofield.

The Commission's final order was that the permit issued to Jo-Anne Elizabeth Schofield be reissued, effective immediately. The Commission also directed that the previous order revoking the permit be set aside, as it was no longer necessary. This decision ensures that the permit process aligns with the intended objectives of the Fair Work Act, maintaining fairness and integrity in the application and use of entry permits.

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Background to the litigation

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Reasons for decision

Legal Principle Established