Australian Workers’ Union, The
[2022] FWC 3145
•30 NOVEMBER 2022
| [2022] FWC 3145 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Australian Workers’ Union, The
(RE2022/1136)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 30 NOVEMBER 2022 |
Application by for a right of entry permit for Douglas Charles Heath – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Heath is a fit and proper person to hold a permit – permit issued
The Australian Workers’ Union (AWU) has applied to the Commission under s 512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Douglas Charles Heath. Mr Heath is employed by the AWU as National Offshore Alliance Organiser. Mr Heath currently holds a right of entry permit with the Construction, Forestry, Mining, Maritime and Energy Union (CFMMEU).[1] He is an official of the ‘Offshore Alliance’ which is a joint venture enterprise between AWU and CFMMEU through which the unions undertake a joint organising approach to the offshore oil and gas industry in Western Australia.
To issue a permit to Mr Heath, 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.
Relevant statutory provisions and application
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.[2] 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.
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,[3] 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,[4] which must be evaluated and accorded appropriate weight.[5]
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.[6]
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.
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.
I turn to consider the application.
Consideration
In support of its application the AWU filed declarations by Mr Heath and Mr Stephen Crawford, AWU National Vice President (the Declarations).
Permit qualification matters – s513(1)(a), (b), (c), (d), (e) and (f)
I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. According to the Declarations:
· Mr Heath 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 21 September 2022 (s 513(1)(a) of the Act));[7]
· Mr Heath has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[8]
· Mr Heath 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;[9]
· Mr Heath has never been ordered to pay a penalty under the Act or any other industrial law (s 513(1)(d) of the Act).[10]
· Mr Heath has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked or suspended (s 513(1)(e) of the Act);[11]
· Mr Heath has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Heath 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);[12] and
· Mr Heath 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).[13]
These matters weigh in favour of a conclusion that Mr Heath is a fit and proper person to hold a right of entry permit.
Relevant to s 513(1)(d) of the Act, the Declarations disclose that the CFMMEU has been ordered to pay a penalty in relation to action taken by Mr Heath. In the judgment of Justice Banks-Smith in Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No. 3)[14], the CFMMEU was ordered to pay a pecuniary penalty of $30,000 in relation to Mr Heath’s conduct (penalty judgment). The findings in relation to Mr Heath’s actions are in the judgment of Justice Gilmore in Chevron Australia Pty Ltd v The Maritime Union of Australia (No 2).[15]
In the abovementioned proceeding, Gilmore J found that the organisation of the industrial action was primarily carried out by, inter alia, Mr Heath and that the organising of industrial action was done with the knowledge and consent of the most senior officials of the MUA. Consequently, it was concluded that the MUA committed contraventions of s 417 of the Act by organising certain industrial action during the nominal term of an enterprise agreement.[16] In Applications by The Australian Workers’ Union (RE2018/1350; RE2018/1387),[17] I considered the import of the Chevron proceeding on the application to grant Mr Heath an entry permit and observed that:
“ [79] Although it is clear from the judgment that Mr Heath was central to the organising of industrial action in circumstances which led to the finding that the MUA contravened s.417 of the Act, absent the imposition of a penalty, this is not a matter which yet engages with the permit qualification matter in s.513(1)(d) of the Act, however, it is a matter that may be taken into account under s.513(1)(g). Presumably, it is for this reason that the condition was imposed on his existing permit.
[80] For my own part, I am not persuaded that the imposition of such a condition has any great utility, at least not in circumstances where extant proceedings do not engage with one or more of the matters which would lead to suspension or revocation of a permit under s.510 of the Act. Put another way, once the condition attaching to the permit is met in this case, what is it that the Commission will do or can do armed with that information. The short answer is nothing. The AWU does not object to the same condition which I have earlier noted that attaches to Mr Heath’s entry permit issued in his capacity as a CFMMEU official also attaching to any permit issued pursuant to this application. Neither AMMA nor the Commissioner contended that the disclosed proceeding was such a significant factor as to lead to a conclusion that Mr Heath was not a fit and proper person to hold an entry permit. I agree.
[81] Despite my reservations as to the utility of a condition of the kind that is imposed on Mr Heath’s current entry permit, I will nonetheless impose such a condition if I am satisfied that Mr Heath is a fit and proper person to hold an entry permit. I will do so in the interests of consistency but the condition will be modified to give effect to that which is evidently intended by it, as there is no prospect of penalties being imposed on Mr Heath arising out of those proceedings since he is not a respondent to them.[18] [Footnote omitted]
Since then, in the penalty judgment Banks-Smith J found that the contraventions arose out of the one course of conduct.[19] Her Honour accepted that as a result of the conduct, operational work was not carried out for two eight-hour shifts. The conduct was deliberate, and the safety issues were a pre‑text. Safety is a matter of primary importance and raising spurious safety claims has the potential to undermine confidence in the reporting of safety issues.[20] Her Honour also noted that:
“Of particular importance in this matter is the cynical nature of the industrial action embarked upon. It was deliberate, involved some planning and was aimed at causing interruption to Chevron. So much is readily apparent from the exchanges of emails reported in the liability reasons at [38], [43], [55]-[56], [77]-[78] and [104]. The conduct was highly improper. I do not accept the CFMMEU's submission that any penalty should be mid-range. However, I accept that although the wrongdoing was at a high level of gravity, it is not at the highest level, having regard to the relatively confined time period of the action and that the action was largely peaceful. Considering all of the circumstances, and the fact that the contraventions arose in the same course of conduct, I consider that the appropriate penalty is a single fine of $30,000.”[21]
The remainder of the assessment of penalty in the penalty judgment concerns the CFMMEU as an organisation and its conduct rather than matters peculiar to Mr Heath and his conduct. Mr Heath was not a respondent to the proceeding and no pecuniary penalty was imposed on him.
In the matter of the entry permit of Mr Douglas Charles Heath,[22] I assessed the significance of the penalty judgment in the context of an application to revoke Mr Heath’s CFMMEU entry permit because of a failure to disclose the penalty judgment in the declarations filed in support of the application. I said:
“[21] Save for the nature of the weight to be assigned, I otherwise agree with these contentions. The conduct engaged in was deliberate, serious and was undertaken for an improper purpose. However, into the balance must be placed the fact that the conduct engaged in occurred some time ago, now over 9 years and that there has not been any finding of any breach of an industrial law involving Mr Heath, since the conduct in which he engaged. I therefore consider the matter to weigh against a conclusion that Mr Heath is a fit and proper person but, subject to what follows further below, not so heavily as to by itself tip the balance, having regard to the other permit qualification matters.
[22] I am concerned however, that Mr Heath does not appear to accept that his involvement in the contravening conduct was properly characterised by the Court as organising unprotected industrial action, nor appreciates why it is that an adverse finding was made in relation to his conduct and a penalty imposed on the CFMMEU because of the contravening conduct in which he was involved. Mr Heath’s evidence before me was as follows:
I understand those findings were made, at least in part, in reliance upon certain concessions made by the MUA as to the characterisation that could be placed upon the MUA’s conduct. I was not a Respondent in that matter and was not an employee of the MUA when these concessions were made. I do not concede that characterisation could be made about my conduct but concede the Commission is bound to consider the findings of the Court when considering any application for an entry permit for me.
[23] Mr Heath’s failure to understand or his failure to accept that his conduct, along with those of his then two colleagues, amounted to organisation of the industrial action, which was not protected action, is concerning and is in my view a relevant matter under s 513(1)(g) of the Act. I consider that it weighs against a conclusion that he is a fit and proper person to hold an unconditional entry permit having regard to the permit qualification matters. The conclusions reached by the Court were based on agreed facts, largely the result of written communications to which Mr Heath was a party, and sometimes the author. I will return to the consequence of this later.” [Underlining in original]
I see no reason to depart from this assessment save as to the conditions because, as will become apparent below, conditions were imposed and there has been compliance with them. No further utility is served by maintaining such conditions. Assessed today, the serious nature of the conduct in which Mr Heath engaged is still a matter that weighs against a conclusion that he is a fit and proper person to hold an entry permit. But in the balance it must also be put into context that the conduct was engaged in over 10 years ago (in June 2012), there has been no further contravening conduct and Mr Heath has carried out entry to workplaces pursuant to permits issued for a significant period since. In this context and balanced against the permit qualification matters going the other way the matter is not so significant as would warrant a conclusion that Mr Heath is not a fit and proper person to hold and entry permit.
Relevant to s 513(1)(e) of the Act, the Declarations disclose that Mr Heath has had conditions imposed on entry permits issued under Part 3-4 of the Act or a similar law of the Commonwealth. These include:
Permit RE2018/458, issued in Mr Heath’s capacity as an official of the Construction and General Division of the Western Australian Branch of the Construction, Forestry, Maritime, Mining and Energy Union, had the condition that any penalty imposed on Mr Heath in relation to Chevron judgment was required to be declared by Mr Heath to the FWC within two weeks of the penalty being imposed.
Permit 2018/1127, issued in Mr Heath’s capacity as an official of the CFMMEU’s Maritime Union of Australia Division, was subject to the same reporting condition in relation to the Chevron case.
On 11 July 2019, I granted Mr Heath a right of entry permit in Mr Heath’s capacity as an Organiser for the AWU which was subject to the same condition in relation to Chevron.
Zachary Duncalfe, National Legal Officer of the AWU wrote to the Commission on 15 April 2020 and advised the following:
“Please take this email as notification on behalf of Mr Heath in accordance with the condition imposed on permit RE2018/1350 that on 9 April 2020 the Federal Court of Australia imposed a penalty on the CFMMEU for the contravening conduct set out at Chevron Australia Pty Ltd v The Maritime Union of Australia (No. 2) [2016] FCA 768 at [109] – [110] in Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No. 3) [2020] FCA 451.”
The FWC noted these reporting conditions have been complied with (see [2021] FWC 4242 at [12]).
On 26 July 2021, I varied my decision to grant Mr Heath a right of entry permit in Mr Heath’s capacity as an Organiser for the Maritime Union of Australia Division of the CFMMEU by imposing the following conditions (see [2021] FWC 4242):
“1. Mr Heath must not use this entry permit to enter premises until he has completed training provided by Mr Brian Lacy as to the decisions of the Federal Court of Australia and the finding about his conduct in the following matters:
a. Chevron Australia Pty Ltd v The Maritime Union of Australia (No. 2) [2016] FCA 768; and
b. Chevron Australia Pty Ltd v The Construction, Forestry, Maritime, Mining and Energy Union (No.3) [2020] FCA 451.
2. Mr Heath must also complete training from Mr Brian Lacey about the steps he must take to make proper inquiries and to seek advice, about the existence of permit qualification matters in connection with any further application for an entry permit under the Fair Work Act 2009 (Act).
3. At all times after completing the training in 1 above, and until this permit expires, Mr Heath must:
a. carry a certificate of completion signed by Mr Lacy as evidence of satisfactory completion of the training whenever he is exercising entry rights under the Act; and
b. produce the certificate whenever he is asked to produce his entry permit for inspection under ss 489 or 497 of the Act.”
Mr Heath complied with the above conditions, completing his training on 2 August 2021.
Given the nature of the conditions imposed and compliance with them, I see no reason why this consideration should adversely impact the assessment whether Mr Heath is a fit and proper person to hold an entry permit.
Relevant to s 513(1)(g) of the Act the Declarations disclose that Mr Heath was a respondent in Jeff Radisch v Michael Buchan, Doug Heath, Walter Molina and Construction, Forestry Mining and Energy Union[23] and the consequential consent orders.[24] No orders to revoke, suspend or to impose conditions on Mr Heath’s permit were made in this matter. I see no reason to depart from my earlier assessment in Applications by The Australian Workers’ Union (RE2018/1350; RE2018/1387)[25] that the circumstances which led to the making of what was a consent order occurred more than a decade ago (now 14 years ago), and does not in my opinion present a particularly weighty consideration against a conclusion that Mr Heath is a fit and proper person to hold an entry permit.
There are no other matters of which I am aware that I consider relevant to the determination of whether Mr Heath is a fit and proper person to hold an entry permit.
Conclusion
Taking into account the permit qualification matters, for the reasons earlier stated I am satisfied that Charles Douglas Heath is a fit and proper person to hold an entry permit. The application by the AWU for an entry permit to be issued to Mr Heath is granted.
A permit will be separately issued.
DEPUTY PRESIDENT
[1] RE2022/866.
[2] 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]
[3] [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (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]
[4] 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
[5] 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) 123 FCR 499 at [62]
and by Katzmann J in Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74
at [103])
[6] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15], p 41
[7] Form F42, Declaration by proposed permit holder dated 18 July 2022 at (a) and ACTU Federal Right of Entry Training Certificate of Completion dated 17 July 2022.
[8] Ibid at (b)
[9] Ibid at (c)
[10] Ibid at (d)
[11] Ibid at (e)
[12] Ibid at (f)
[13] Ibid at (g)
[14] [2020] FCA 451
[15] [2016] FCA 768
[16] Chevron Australia Pty Ltd v The Maritime Union of Australia (No.2) [2016] FCA 768 at [109] – [110]
[17] [2019] FWC 4733
[18] Ibid at [79]-[81
[19] Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No. 3) [2020] FCA 451 at [56]
[20] Ibid at [99]
[21] Ibid at [116]
[22] [2021] FWC 4242
[23] [2008] AIRC 896
[24] PR984581.
[25] [2019] FWC 4733
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