CASE PROCEDURES – referral to Full Bench – ss.512, 615A Fair Work Act 2009 – application for President to direct a Full Bench to perform a function – CEPU had made an application for an entry permit for Mr Metcher – Mr Metcher holds the office of Branch Secretary of the NSW Postal and Telecommunications Branch of the CEPU – Commission Member was satisfied Mr Metcher was a fit and proper person to hold a permit under s.512 of FW Act and issued decision granting application – subsequent Report by Director of Commission’s Regulatory Compliance Branch requested that consideration be given to variation or revocation of the decision on basis that Mr Metcher had failed to disclose a number of assault charges in August 2007 and that the charges were the subject of court proceedings – matter was allocated to same Commission Member and listed for hearing – Minister applied for the matter to be referred to a Full Bench – submitted significant public interest considerations raised which warranted attention of the Full Bench – firstly, whether or not charges of assault and court proceedings concerning alleged incidences of domestic violence are matters relevant to the ‘fit and proper person’ assessment for purposes of s.512 – secondly, whether or not there should be disclosure to the Commission of such charges and related court orders – CEPU then advised Commission that as Mr Metcher had stood aside from duties of Branch Secretary, did not need to exercise a right of entry – returned permits and requested that they be administratively cancelled – further requested the listing be vacated and proceedings treated as closed – AGS submitted that Commission should proceed to decide under s.603 whether or not to revoke or vary the decision and to consider whether or not Mr Metcher was a fit and proper person to hold a permit – President noted the revocation or variation of decision required the exercise of the power in s.603 – broad discretionary power – generally only exercised where there has been a change in circumstances such as to warrant the revocation or variation of original decision or where original decision was based on incomplete or false information – decision to issue entry permit may be revoked if, in relation to one or more of the ‘permit qualification matters’ in s.513(1), the decision had been made on incorrect facts – in the usual course, the Member whose decision is to be reconsidered is in the best position to determine whether their decision should be varied or revoked because it was based on an incomplete factual matrix – President did not accept submission on behalf of Minister that usual practice should be departed from because of the importance of the issue of principle to be determined – given the nature of the matter sought to be referred to a Full Bench, being an own motion proceeding in which Member to consider, whether or not to revoke or vary own decision, and the availability of the review mechanism in s.605 to deal with any alleged error in the Member’s determination of the issue of principle, President not satisfied that it was in the public interest to refer the matter to a Full Bench under s.615A – Minister not having a right to be heard in the proceedings before the Member not a consideration which enlivened public interest test under s.615A – President not satisfied that it was in the public interest to direct a Full Bench to hear and determine the application under s.512 – application refused. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Communications Division – New South Wales Postal and Telecommunications Branch v Metcher
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