DECISION

Fair Work Act 2009
s.603—Application to vary or revoke a FWC decision

Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch
(RE2019/432)

Application for an order revoking the entry permit of Mr Ronnie Laurence Buckley – order issued.

[1] On 23 May 2019, Senior Deputy President Hamberger decided to issue an entry permit pursuant to s.512 of the Fair Work Act 2009 (Act) to Mr Ronnie Laurence Buckley, an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). Mr Buckley’s entry permit is due to expire on 23 May 2022.

[2] In Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union (The Beams Lift Case) 1, Kerr J imposed penalties on Mr Buckley for a contravention of s.500 of the Act and on the CFMMEU in respect of its derivative liability for Mr Buckley’s breach of s.500 of the Act. On 23 November 2021, the Commission wrote to the CFMMEU to advise that I was considering taking action under s.510 of the Fair Work Act 2009 (Act) in relation to Mr Buckley’s permit and seeking confirmation that Mr Buckley remains an official of the CFMMEU and continues to hold an entry permit. In response the CFMMEU advised that Mr Buckley was not currently performing his role as Organiser, that it was not known when he would resume his role as Organiser and that his permit would be returned shortly.

[3] In February 2022, the CFMMEU advised the Commission that Mr Buckley’s permit had been lost. In a statutory declaration dated 7 March 2022, Mr Buckley declared that despite searching for his permit in his residence and car and instructing a colleague to search for his permit at the office he has been unable to find his permit and the permit is lost.

[4] On 5 April 2022, my Associate wrote to the CFMMEU and the Australian Building and Construction Commissioner (the Commissioner) advising that in the circumstances I proposed to take action under s.510 to suspend Mr Buckley’s lost permit for a period of 3 moths with a ban on the issue of any further entry permit to Mr Buckley for an equivalent period which would have the same effect as revocation as Mr Buckley’s permit is due to expire during the ban period.

[5] On 8 April 2022, the CFMMEU wrote to my Chambers advising that The Beams Lift Case is currently the subject of an appeal that is yet to be determined. The CFMMEU stated that Mr Buckley is currently too unwell to undertake corrective training or give evidence and submitted that as he unlikely to return to work as an Organiser in the foreseeable future it may be appropriate for the Commission to instead revoke Mr Buckley’s under s.603 of the Act. On 11 April 2022, the Commissioner advised my Associate that he did not object to this course.

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

“603 Varying and revoking the FWC’s decisions

(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:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

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

…”

[7] 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)). Section 603(3) expressly excludes certain classes of decisions from the scope of the general power to vary or revoke in s.603(1).

[8] A decision of the Commission to issue an entry permit is a decision which falls within the scope of s.603(1) 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).

[9] In the circumstances, I consider it appropriate to exercise my discretion to revoke the entry permit issued to Mr Buckley in matter RE2019/432. A revocation order is separately issued in PR741050.

DEPUTY PRESIDENT

 1   [2021] FCA 1414

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