Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch

[2018] FWC 3525

[2018] FWC 3525

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch

(RE2018/458)

Deputy President Binet PERTH, 28 JUNE 2018

Application for a right of entry permit for Douglas Charles Heath.

1. On 10 April 2018, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) filed an application pursuant to section 512 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) for a right of entry permit (Permit Application) for Mr Douglas Charles Heath (Mr Heath). 

1. On 16 April 2018, the CFMMEU filed an application pursuant to section 516 of the FW Act to extend Mr Heath’s current right of entry permit until the Permit Application is determined (Extension Application). 

1. The right of entry permit currently held by Mr Heath (Old Permit) was issued on 27 May 2015 (RE2015/629) and expired on 27 May 2018.

1. On 14 May 2018, the Australian Building and Construction Commission (ABCC) notified the FWC that the ABCC Commissioner did not intend to make submissions in respect of, and/or intervene in the Extension Application pursuant to section 110 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth).

1. On 21 May 2018, in accordance with the decision in [2018] FWC 2742, an order (PR607303) was issued granting an extension of the Old Permit for three months or such earlier time as the Permit Application is heard and determined.

1. Directions were issued (Directions) requiring the CFMMEU to file submissions, witness statements and evidence in support of the Application.   The CFMMEU elected not to supplement these materials with any oral submissions and the Permit Application has been determined on the materials which have been filed with the FWC.

Relevant Statutory Provisions

1. The provisions concerning entry permits are found in Part 3-4 of the FW Act. The object of Part 3-4 is set out in section 480 of the FW Act:

“480      Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a)   the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i)this Act and fair work instruments; and

(ii)State or Territory OHS laws; and

(b)   the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c)   the right of occupiers of premises and employers to go about their business without undue inconvenience.”

1. In Maritime Union of Australia v Fair Work Commission (MUA v FWC) [2015] FCAFC 56, the Full Court of the Federal Court (North, Flick and Bromberg JJ) observed at [15]:

“Section 480 … sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56],  (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited (1979) 143 CLR 499 at 540 per Mason J.”

1. Section 512 of the FW Act states that:

“512      FWC may issue entry permits

The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.”

1. In The Maritime Union of Australia [2014] FWCFB 1973 at [23], a Full Bench of the FWC (Deputy President Gostencnik, Deputy President Wells and Commissioner Blair) considered the question of whether a person is a fit and proper person in the context of the right of entry regime established by Part 3–4 of the FW Act and observed that:

“…the relevant question, in determining whether the Commission is permitted to exercise the discretion to issue an entry permit to an official of an organisation under s 512, is whether the official “is a fit and proper person to hold an entry permit”. The description “fit and proper person” in s.512 is not defined and standing alone, it carries no precise meaning. Generally though, the description is used as a measure of suitability to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. However, the description will take its meaning from its context, from the activities in which the person to be assessed is or will be engaged and the ends to be served by those activities. Taking into account context, the structure of s.512 and the activities to be engaged in by an official if an entry permit will issue, it seems to us clear that that description is to be applied by reference to the suitability of the official “to hold the entry permit”.

1. Section 513(1) of the FW Act sets out the matters that are to be taken into account in determining whether a proposed permit holder is a fit and proper person to hold a right of entry permit (Permanent Qualification Matters) as follows:

“513      Considering application

(1)   In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a)   whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b)   whether the official has ever been convicted of an offence against an industrial law;

(c)   whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i)entry onto premises; or

(ii)fraud or dishonesty; or

(iii)intentional use of violence against another person or intentional damage or destruction of property;

(d)   whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e)   whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f)     whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i)cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii)disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g)   any other matters that the FWC considers relevant.”

1. The principles applicable to the assessment of whether a proposed permit holder is a fit and proper person to hold an entry permit can be summarised from the relevant authorities as follows:[1]

·   The question of whether a proposed permit holder is a fit and proper person to hold an entry permit will require consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attached to the exercise of those rights and the responsibilities that must be discharged in the exercise of those rights.

·   Consideration of permit qualification matters is to be directed to the personal characteristics of the proposed permit holder pertinent to the discharge of the functions and the exercise of the rights associated with holding a permit.

·   The permit qualification matters must be considered in the context of whether the proposed permit holder is a fit and proper person to hold an entry permit, not whether the proposed permit holder is a fit and proper person per se.

·   Each of the permit qualification matters must be considered and given appropriate weight.

·   There is no statutory indication that any particular permit qualification matter should be given more weight than any other.

· For a matter to be relevant for the purposes of section 513(1)(g), the matter must relate to the personal characteristics of the proposed permit holder and be pertinent to the discharge of the functions and the exercise of the rights associated with holding a permit.

Consideration

1. The FWC may issue an entry permit pursuant to section 512 of the FW Act if satisfied that the proposed permit holder is a fit and proper person to hold an entry permit. In deciding whether the proposed permit holder is a fit and proper person, the FWC must take into account the Permit Qualification Matters.

1. In relation to the Permit Qualification Matter set out in section 512(1)(a) of the FW Act, Mr Heath produced evidence that he completed the Australian Council of Trade Unions Right of Entry Training Course on 7 June 2013 and 5 April 2018. He says that he has also received training in relation to right of entry from his employers during his employment with various trade unions since the 1990s. In addition to undertaking training specifically in relation to right of entry, Mr Heath holds a Bachelor of Economics and a Graduate Diploma in Secondary Education.[2] I am satisfied that Mr Heath has completed training about the rights and responsibilities of a permit holder in accordance with section 512(1)(a) of the FW Act.

1. Mr Heath has filed an affidavit swearing that he has not been convicted of any laws, ordered to pay any penalties or had any entry permit revoked, suspended or made subject to any conditions relevant to the Permit Qualification Matters set out in section 512(1)(b)-(f) of the FW Act.[3]  There is no evidence to the contrary before me and I am therefore satisfied that this is true.

2. With respect to section 513(1)(g) of the FW Act, Mr Heath concedes that he was a respondent in Jeff Radisich v Michael Buchan, Doug Heath, Walter Molina and Construction, Forestry Mining and Energy Union[2008] AIRC 896.  However, he says that then CFMEU purported to make admissions in relation to his conduct without his knowledge and consent after he had left his employment with the then CFMEU.[4]  Order 8 of the consent orders issued by Senior Deputy President Lacy specifically records that:

“8. Doug Heath’s consent to these orders does not constitute any admission by him that he abused any right conferred by Part 15 of the Workplace Relations Act 1996.”[5]

1. Mr Heath points out that the consent orders issued in the matter (Print PR984581) did not suspend, revoke or impose any conditions on him as a permit holder.[6] 

1. Mr Heath also concedes that he is named in consent orders made in Chevron Australia Pty Ltd v The Maritime Union of Australia (No.2) [2016] FCA 768 (Chevron Case).  According to Mr Heath, the Maritime Union of Australia (MUA) entered into the consent orders and purported to make admissions in relation to Mr Heath’s conduct without his knowledge or consent. He says that he intended to defend his conduct and was upset that the MUA made admissions on his behalf without his knowledge. Mr Heath points out that he was not named as a respondent in the Chevron Case and neither he, nor any other person or organisation, has to date been ordered to pay a penalty under the FW Act in relation to this matter.[7]  A hearing to determine penalty is not listed to occur in the Federal Court of Australia until 2019.

1. Mr Heath estimates that he has exercised a right of entry without incident over five thousand times during his career as a trade union official. He submits that this record demonstrates that he understands and will comply with his obligations as a permit holder and is a matter which ought to be given consideration pursuant to section 513(1)(g) of the FW Act.[8]

Conclusion

1. I have considered the Permit Qualification Matters and have given weight to each.[9] 

1. Mr Heath has been employed as a trade union official for almost 21 years.  During this time he has been employed by a variety of unions in a disparate range of industries in both urban and regional areas throughout Australia. 

1. His education, training and experience ought to adequately equip him to familiarise himself with, and properly comprehend, his obligations in relation to the lawful exercise of a right of entry.

1. This appears to be reflected in the fact that during the 20 plus years he has been employed as a trade union official he has not been convicted of breaches of any laws, ordered to pay any penalties or had any entry permit revoked, suspended or made subject to any conditions relevant to the Permit Qualification Matters.   

2. Notwithstanding that Mr Heath is named in consent orders in two matters, I am satisfied,  taking into account the totality of the material before me, that Mr Heath is a fit and proper person to hold an entry permit subject to the imposition of a condition that:

   If any penalty is imposed on Mr Heath in relation to the events that form the subject of the Chevron Case, Mr Heath must notify the Fair Work Commission within two weeks of the date that the penalty is imposed.

1. Pursuant to section 515(1) of the FW Act, the application for a right of entry permit for Mr Heath is granted. An order to this effect (PR608168) will be issued separately.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 12 June 2018

<PR608166>

[1] Re Australian Salaried Medical Officers Federation[2017] FWC 3282 at [11] citing Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2015] FWC 1522 at [32].

[2] Affidavit of Douglas Charles Heath filed on 12 June 2018 at [26]–[28]

[3] Ibid at [29]–[33]

[4] Ibid at [34]

[5] Jeff Radisich v Michael Buchan, Doug Heath, Walter Molina and Construction, Forestry Mining and Energy Union (PR984581)

[6] Affidavit of Douglas Charles Heath filed on 12 June 2018 at [34]

[7] Ibid at [35]

[8] Ibid at [36]–[39]

[9] Australian Salaried Medical Officers Federation [2017] FWC 3282 at [12].

Printed by authority of the Commonwealth Government Printer