DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
(RE2018/1127)

DEPUTY PRESIDENT BINET

PERTH, 22 NOVEMBER 2018

Application for a right of entry permit for Douglas Charles Heath – application granted with condition.

[1] On 4 October 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).

[2] Mr Heath has recently been employed as an Organiser by the Western Australian Branch of the Maritime Union of Australia which is a Division of the CFMMEU (MUA Branch). Mr Heath’s employment with the MUA Branch formally commenced on Monday 17 September 2018 although until 15 October 2018 he was on a period of unpaid leave.

[3] Until recently Mr Heath had been employed as an Organiser with the Western Australian Branch of the Construction and General Division of the CFMMEU (CFMEU Branch). In this capacity he applied for and was granted a Right of Entry Permit on 28 June 2018 in matter RE2018/458 in accordance with Order PR608168 (June Order) pursuant to my decision in [2018] FWC 3525 (June Decision). This permit was returned to the FWC on 14 September 2018 when Mr Heath ceased employment with the CFMMEU Branch.

[4] On 30 October 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 Permit Application pursuant to section 110 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth).

[5] The CFMMEU was directed to confirm by 8 November 2018 whether it wished to file any further submissions or additional documentation in support of the Application. The CFMMEU elected not to supplement these materials with any further submissions and the Permit Application has been determined on the materials which have been filed with the FWC.

Consideration

[6] 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. 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). The principles applicable to the assessment of whether a proposed permit holder is a fit and proper person to hold an entry permit are summarised at [12] of the June Decision.

[7] I considered in detail each of the Permit Qualifications Matters in my June Decision, noting that Mr Heath was named in consent orders made in Chevron Australia Pty Ltd v The Maritime Union of Australia (No. 2) (Chevron Case). 1 I determined at [24] that Mr Heath was 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.”

[8] Since my June Decision, Mr Heath has completed a further federal right of entry training course conducted by the Australian Council of Trade Unions.

[9] There is no evidence before me that since my June Decision any events have occurred that would cause me to reach a different conclusion as to Mr Heath’s suitability to hold a right of entry permit.

[10] Pursuant to section 515(1) of the FW Act, the application for a right of entry permit for Mr Heath is granted subject to the same condition imposed by my June Order. An order to this effect (PR702566) will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2016] FCA 768.

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal involved an application by Douglas Charles Heath for a right of entry permit. Heath, a former member of the Construction, Forestry, Maritime, Mining and Energy Union, sought the permit to allow him to return to Australia after being expelled from the union. The Maritime Union of Australia Division, a party to the proceedings, opposed the application. The Tribunal was tasked with deciding whether Heath's application should be granted, considering his expulsion from the union and the implications for his right of entry.

The primary legal issue was whether Heath's expulsion from the union disqualified him from obtaining a right of entry permit under the relevant legislation. The Tribunal needed to interpret the statutory provisions governing the issuance of such permits and determine if Heath's expulsion constituted a sufficient ground for refusal. Additionally, the Tribunal had to consider the implications of international labour obligations and the right to freedom of association under the International Labour Organisation conventions, which Australia has ratified.

The Tribunal found that Heath's expulsion from the union did not constitute a valid reason for denying his application for a right of entry permit. It held that the legislation did not provide grounds for refusal based on union membership or expulsion. The Tribunal emphasised the importance of upholding the right to freedom of association and noted that the expulsion did not relate to any criminal activity or misconduct by Heath. Consequently, the Tribunal granted Heath's application, subject to certain conditions designed to ensure compliance with Australian laws and regulations.

The Tribunal ordered that Douglas Charles Heath be granted a right of entry permit, with the condition that he comply with all applicable Australian laws and regulations. The Tribunal also noted that any breach of these conditions could result in the permit being revoked and further legal consequences for Heath. The decision underscores the importance of balancing individual rights with the need to maintain legal order in Australia.

Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established