Fair Work Act 2009

s.512 - Right of entry; s 603 - Varying and revoking FWC's decisions

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Application for a right of entry permit for Paul Anthony Curcio - whether fit and proper person to hold an entry permit under the Act - satisfied Ms Curcio is a fit and proper person to hold a permit - order revoking stolen entry permit issued - permit issued.

• [1] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) applied under s 512 of the Fair Work Act 2009 (Cth) (Act) for the issue of a right of entry permit to its employee, Paul Anthony Curcio. Mr Curcio is employed by the AMWU as an Organiser.

• [2] Mr Curcio was issued an entry permit on 9 May 2022.[1] The expiry date for that permit is 9 May 2025. In a statutory declaration dated 26 July 2024, Mr Curcio declared that his right of entry permit had been stolen from his car when it was parked at the AMWU basement car park on 3 July 2024.[2]

• [3] The Commission does not appear to have a general power under the Act to replace a lost or stolen entry permit. In order for Mr Curcio to hold a valid entry permit and to be in a position to produce it when requested by an occupier to do so, the existing permit, which has been lost, must be revoked and an application for a new permit to be issued must be made.

• [4] The applicable principles for determining right of entry permit applications under s 512 of the Act 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, 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 exercise the powers, functions and responsibilities attached to holding a permit.[3] 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) of the Act 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,[4] 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,[5] which must be evaluated and accorded appropriate weight.[6]

• [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.[7]

• [7] Having regard to the structure and content of s 513 of the Act, in deciding whether a proposed permit holder is a fit and proper person to hold an entry permit, all 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 a proposed permit holder 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 a proposed permit holder 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 AMWU filed declarations by Mr Curcio and Tony Mavromatis, AMWU Victorian State Secretary of the AMWU Victorian Branch (the Declarations).

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

• [11] According to the Declarations and the supporting material, Mr Curcio has:

• • received appropriate training about the rights and responsibilities of a permit holder by undertaking an online course of training on the subject of a federal right of entry conducted by ACTU on 31 March 2022 (s 513(1)(a) of the Act));[8]

• • never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[9]

• • 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;[10]

• • never been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by her, nor has any other person (s 513(1)(d) of the Act);[11]

• • 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);[12]

• • not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes that Mr Curcio 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);[13] and

• • 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).[14]

• [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 Curcio is a fit and proper person to hold a right of entry permit.

Permit qualification matters - s 513(1)(g)

• [13] The Declarations do not disclose other matters that Mr Curcio and Mr Mavromatis consider relevant to the determination of whether he is a fit and proper person to hold an entry permit.

• [14] As mentioned earlier, the Commission does not have a general power under the Act to replace an entry permit that is lost or stolen. A revocation of the existing permit is required and a new permit may be issued subject to the requirements in s 512 of the Act.

• [15] The relevant power to revoke is found in s 603 of the Act, which relevantly provides:

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(ii) if the kind of decision is prescribed by the regulations - a person prescribed by the regulations in relation to that kind of decision.

(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:

(a) a decision under Part 2‑3 (which deals with modern awards);

(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2‑4 (which deal with enterprise agreements);

(c) a decision under Part 2‑5 (which deals with workplace determinations);

(d) a decision under Part 2‑6 (which deals with minimum wages);

(e) a decision under Division 3 of Part 2‑8 (which deals with transfer of business);

(f) a decision under Division 8 of Part 3‑3 (which deals with protected action ballots);

(g) a decision under section 472 (which deals with partial work bans);

(h) a decision that is prescribed by the regulations.

Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448)."

• [16] The reference to "decision" in s 603 of the Act carries the meaning ascribed to it by s 598. Subsection 603(1) confers a discretion to vary or revoke "a decision of the FWC that is made under [the] Act" (other than a decision referred to in s 603(3)). Subsection 603(3) expressly excludes certain classes of decisions from the scope of the general power to vary or revoke in s 603(1).

• [17] A decision of the Commission to issue an entry permit is a decision which falls within the scope of s 603(1) of the Act in that it is a decision made by the Commission under the Act that does not fall within the scope of the exclusions in s 603(3).

• [18] In the circumstances, I consider it appropriate to exercise the discretion to revoke the entry permit issued by decision of the Commission to Mr Curcio in RE2022/309.

• [19] Pursuant to s 603 of the Act, the entry permit RE2022/309 issued to Mr Curcio by decision of the Commission is revoked with effect from the date of this decision. A revocation order is separately issued in PR777620.

• [20] Taking into account the permit qualification matters, and for the reasons earlier stated, I am satisfied that Paul Anthony Curcio is a fit and proper person to hold an entry permit. The application by the AMWU for an entry permit to be issued to Mr Curcio is granted.

[2] Statutory declaration of Paul Curcio dated 26 July 2024

[3] 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]

[4] [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]

[5] 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, (1999) 94 FCR 561 and National Retail Association v Fair Work Commission [2014] FCAFC 118, (2014) 225 FCR 154

[6] 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])

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

[8] Form F42, Declaration by Paul Anthony Curcio dated 17 July 2024 at (a); Form F42, Declaration by Tony Mavromatis dated 17 July 2024 at 4; ACTU Institute certificate of completion dated 31 March 2022

[9] Form F42, Declaration by Paul Anthony Curcio dated 17 July 2024 at (b); Form F42, Declaration by Tony Mavromatis dated 17 July 2024 at 2(a)

[10] Form F42, Declaration by Paul Anthony Curcio dated 17 July 2024 at (c); Form F42, Declaration by Tony Mavromatis dated 17 July 2024 at 2(b)

[11] Form F42, Declaration by Paul Anthony Curcio dated 17 July 2024 at (d); Form F42, Declaration by Tony Mavromatis dated 17 July 2024 at 2(c)

[12] Form F42, Declaration by Paul Anthony Curcio dated 17 July 2024 at (e); Form F42, Declaration by Tony Mavromatis dated 17 July 2024 at 2(d)

[13] Form F42, Declaration by Paul Anthony Curcio dated 17 July 2024 at (f); Form F42, Declaration by Tony Mavromatis dated 17 July 2024 at 2(e)

[14] Form F42, Declaration by Paul Anthony Curcio dated 17 July 2024 at (g); Form F42, Declaration by Tony Mavromatis dated 17 July 2024 at 2(f)

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