s.512 - Right of entry

Australian Education Union - New South Wales Teachers Federation (NSWTF) Branch

Application for a right of entry permit for Peter Mark Allen - permit previously issued - permit never received - order revoking missing permit - permit reissued.

• [1] The Australian Education Union (AEU) applied under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Mr Peter Mark Allen. The Commission subsequently issued Mr Allen a right of entry permit which will expire on 15 December 2024.

• [2] On 21 December 2021 Mr Allen's permit, along with 36 other entry permits, was sent by mail via an express post box. On 19 January 2022, after being notified that a number of the permits had not been received, the Commission contacted Australia Post and was advised that in the afternoon of 21 December 2021 there was a critical incident at the site of the post box and the contents of a number of post boxes were stolen. A search of the tracking numbers of the mail sent on 21 December 2021 was also performed on the Australia Post website which showed the status of each envelope sent as "pending". In normal circumstances the search would provide the location of the envelope within 24 to 48 hours after it is posted. Based on the information obtained by the Commission there is no known whereabouts of the permits, it is likely the permits were among the mail items stolen and will not be retrieved in the near future.

• [3] The Commission does not appear to have a general power under the Act to replace a missing entry permit. In order for Mr Allen to hold a valid entry permit the missing permit must be revoked and a permit must be reissued. In the circumstances, I consider it appropriate to use my discretion under s.603 to revoke entry permit (RE2021/1239) issued to Mr Allen by decision of the delegate on 13 December 2021 and I propose to reissue the permit. In order to issue a permit to Mr Allen, 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

• [4] The applicable principles for determining right of entry permit applications under s.512 are well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder the subject of an application for a permit is assessed taking into account the permit qualification matters set out in s.513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission's inquiry is not whether the proposed permit holder is a fit and proper person in some abstract sense_._ The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit, and to exercise the powers, functions and responsibilities attached to holding a permit.[1] The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.

• [5] The permit qualification matters contained in s.513(1) are mandatory considerations which must be taken into account and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a 'relevant consideration' in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others,[2] that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision-making process,[3] which must be evaluated and accorded appropriate weight.[4]

• [6] The weight given to a particular matter is ultimately a matter for the Commission, however in ascribing weight to each matter care should be taken to ensure that a relevant factor of great importance is given adequate weight and that excessive weight to a relevant factor of no great importance is not ascribed.[5]

• [7] Having regard to the structure and content of s.513, in deciding whether a proposed permit holder is a fit and proper person to hold an entry permit, all of the permit qualification matters identified in s.513(1) of the Act must be taken into account. The absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment, just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight.

• [8] Section 513(1)(g) of the Act requires the Commission to take into account any other matter it considers relevant. A matter will be relevant if it can rationally affect the assessment of whether the proposed permit holder is a fit and proper person to hold an entry permit. Matters that may be relevant and therefore fall to be considered under s.513(1)(g) are matters that relate to the personal characteristics of the proposed permit holder and are pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.

• [10] In support of its application the AEU filed declarations by Mr Allen and Ms Maxine Sharkey, Branch Secretary (the Declarations).

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

• • Mr Allen 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 28 June 2021 (s.513(1)(a) of the Act));[6]

• • Mr Allen has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);[7]

• • Mr Allen 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;[8]

• • Neither Mr Allen 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);[9]

• • Mr Allen 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);[10]

• • Mr Allen has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Allen 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);[11] and

• • Mr Allen 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).[12]

• [12] 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 Allen is a fit and proper person to hold a right of entry permit.

• [13] There are no other matters of which I am aware that I consider relevant to the determination of whether Mr Allen is a fit and proper person to hold an entry permit.

• [14] Pursuant to s.603 of the Act, the entry permit formerly issued to Mr Allen by decision of the delegate is revoked with effect from the date of this decision. A revocation order is separately issued in PR737825.

• [15] Taking in account the permit qualification matters, for the reasons earlier stated I am satisfied that Mr Allen is a fit and proper person to hold an entry permit.

• [16] A permit will be reissued to Mr Allen separately.

[1] Maritime Union of Australia [2014] FWCFB 1973 at [23]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, [2015] FWC 1522 at [32]

[2] [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379; Ho v Professional

Services Review Committee No 295 [2007] FCA 388 at [23]- [26] and cited in Hasim v Attorney-General of the

Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

[3] Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and

Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail

Association v Fair Work Commission [2014] FCAFC 118

[4] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184; (cited with approval by Hely J in Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at [62]

and by Katzmann J in Construction, Forestry, Mining and Energy Union v Hamberger and Another [2011] FCA 719; (2011) 195 FCR 74

[5] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15], p 41

[6] Form F42, Declaration by proposed permit holder dated 10 November 2021 at (a) and ACTU Certificate of Completion dated 28 June 2021

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