s.512 - Application for a right of entry permit

Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division - Sydney Branch

Application for a right of entry permit for Paul Keating -whether fit and proper person to hold an entry permit under the Act-satisfied that fit and proper person -permit issued.

• [1] The Construction, Forestry and Maritime Employees Union-The Maritime Union of Australia Division - Sydney Branch (the Branch) has made an application under s.512 of the Fair Work Act 2009 (Cth) (the FW Act) for a right of entry permit for Mr Paul Keating, the Divisional Branch Secretary.

• [2] Mr Keating has previously held a right of entry permit. In 2011,[1] 2015[2] and 2018,[3] applications were made and permits granted.

• [3] On 3 June 2021, a further application was made (the 2021 application). On that occasion, Deputy President Saunders refused to issue the permit and dismissed the application.[4]

• [4] For the reasons that follow, I am satisfied that given Mr Keating's conduct in the period of nearly four years since the 2021 application and the additional training and reflection he has undertaken in the intervening period, the application by the Branch for an entry permit to be issued to Mr Keating is granted.

• [5] Section 512 of the FW Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if the Commission is satisfied that the official is a 'fit and proper person' to hold the entry permit.

• [6] 'Official' is defined in s.12 of the FW Act as a person who holds an office in, or is an employee of an industrial association. 'Industrial association' includes a registered organisation and a branch of such an organisation.

• [7] In deciding whether the official is a fit and proper person, the Commission must have regard to the permit qualification matters set out in s.513(1) of the FW Act.

(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.

• [8] Each of the permit qualification matters listed in s.513(1) must be taken into account and given 'proper, genuine and realistic consideration and appropriate weight'[5].

• [9] The focus of the Commission's inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit and exercise the powers, functions and responsibilities attached to holding a permit.[6]

• [10] Section 515 of the FW Act allows the Commission to impose conditions on entry permits, taking into account the permit qualification matters. This should be considered in conjunction with assessing fitness and propriety.[7]

• [11] The Branch relies on the following in support of the application:

• Statement of Paul Anthony Keating dated 31 January 2025;

• Statement of Mr Warren Smith, Divisional Deputy National Secretary, Maritime Union of Australia Division (MUA) dated 31 January 2025; and

• A written outline of submissions dated 31 January 2025.

• [12] I note that annexed to the statement of Mr Keating is a report about training and instruction provided to Mr Keating by Mr Brian Lacy AO, which I refer to later in this decision.

• [13] Between 2011 and 2021, Mr Keating was the Deputy Branch Secretary of the Branch. On or about 25 January 2021, Mr Keating was appointed to the position of Divisional Branch Secretary of the Branch. It follows then that for the vast majority of his time as Divisional Branch Secretary, Mr Keating has not held a right of entry permit.

• [14] Mr Keating asserts that as he does not have a permit, this has hampered his ability to 'effectively carry out [his] duties and functions under the MUA Divisional Rules'[8], as well as increasing considerably the workloads of other officials who have undertaken tasks that Mr Keating would otherwise, with a permit, have undertaken himself.[9]

• [15] The following permit qualification matters weigh in favour of a finding that Mr Keating is a fit and proper person to hold an entry permit:

• a. In anticipation of filing a new application, Mr Keating underwent a new course of training about the rights and responsibilities of a permit holder. He completed the training on 28 June 2024 (s.513(1)(a)).[10]
• b. Mr Keating has never been convicted of an offence against an industrial law (s.513(1)(b)).[11]

1. Mr Keating's evidence is that he has no convictions for offences 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 (s.513(1)(c)).[12]

• d. Mr Keating's evidence is that none of the Right of Entry permits that he has held under industrial laws have ever been revoked, suspended or made subject to conditions (s.513(1)(e)).[13]
• e. Mr Keating's evidence is that he has not been disqualified by any court or other person or body under a State or Territory industrial law or an OHS law from exercising or applying for a Right of Entry for industrial or occupations health and safety purposes under that law (s.513(1)(f)).[14]

• [16] In relation to s.513(1)(d), Mr Keating's evidence is that since being elected an official of the MUA in 2011, the MUA has ordered to pay pecuniary penalties under the FW Act in relation to action that he was involved in on three occasions. Mr Keating has been ordered to pay pecuniary penalties under the FW Act on two of those occasions. These matters weigh against a finding that Mr Keating is a fit and proper person to hold an entry permit. The relevant decisions of the Federal Court are:

• (i) DP World Sydney Limited v Maritime Union of Australia (No 2);[15]
• (ii) Fair Work Ombudsman v Maritime Union of Australia;[16] and
• (iii) Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union.[17]

DP World Sydney Limited v Maritime Union of Australia (No 2)

• [17] The background to this matter is that Mr Keating was involved in stoppages of work by employees of DP World at Port Botany on three shifts between 18 and 19 December 2012, following a decision by DP World to dismiss a member of the MUA. Mr Keating, who was then the Branch Deputy Secretary, attended a meeting of the workers on each of the three shifts between 18 and 19 December 2012 with Mr Paul McAleer, who was then Divisional Branch Secretary. Following addresses by Mr Keating and Mr McAleer, a motion was put by one of the employees at each shift that the workers stop work for the entire shift. Neither Mr McAleer nor Mr Keating tried to stop the motion being put to a vote, nor did they make any attempt to dissuade the employees from taking strike action.[18]

• [18] DP World subsequently commenced action against the MUA, Mr Keating and Mr McAleer alleging contraventions of s.417 of the FW Act. On 29 April 2014, the parties agreed to resolve these proceedings with each of the respondents admitting liability, and the parties agreeing to penalties. The parties made a joint submission to the Court in relation to penalties. On 6 June 2014, the Court accepted the joint submissions, and made Orders to impose penalties on the MUA, Mr McAleer and Mr Keating.

• [19] In making these Orders, Justice Flick made declarations that the MUA, Mr McAleer and Mr Keating each organised industrial action at Port Botany in New South Wales in contravention of s.417 of the FW Act:
  • between 10.30 am and 2.00 pm on 18 December 2012;
  • between 2.00 pm and 10.00 pm on 18 December 2012; and

• between 10.00 pm on 18 December 2012 and 6.00 am on 19 December 2012.[19]

• [20] Justice Flick ordered the MUA to pay a penalty of $30,000 and Mr Keating to pay a penalty of $3,000.[20] This matter was taken into account by the Commission in previous right of entry permit applications by Mr Keating in 2015,[21] 2018[22] and 2021.[23]

• [21] In relation to this matter, Mr Keating said he accepted his conduct in failing to discourage employees from taking strike action against DP World. He regretted his involvement in that unlawful action and is committed to resolving differences with all employers with whom he deals through the dispute resolution provisions of enterprise agreements and by using the processes of the Commission and the Courts.[24]

Fair Work Ombudsman v Maritime Union of Australia

• [22] In Fair Work Ombudsman v Maritime Union of Australia, Justice Jagot found that the MUA contravened s.417(1) of the FW Act between 7 and 14 August 2015, when it organised and was involved in unlawful industrial action in the form of employees of Hutchinson Ports Australia (HPA) ceasing work after HPA gave notice dismissing nearly 100 of its employees with effect from 14 August 2015. The dismissals occurred after HPA had notified the MUA on 20 July 2015 and employees of its intention to reduce the workforce by 56 employees in Sydney and 41 in Brisbane. The MUA perceived that HPA's decision had been made without consultation and in breach of the relevant enterprise agreement. The Fair Work Ombudsman (FWO) appealed against Justice Jagot's decision not to order compensation, and the quantum of the penalty ordered against the MUA. The Full Court set aside Justice Jagot's orders and remitted the issue of penalty to Justice Jagot for further hearing. Subsequently, on 21 November 2019, Justice Jagot handed down a judgment,[25] in which the MUA was ordered to pay a penalty of $38,000 for contravening s.417 of the Act.

• [23] Although Mr Keating was not a party to those proceedings and did not give evidence at the hearing, Justice Jagot inferred that Mr Keating was one of the officers of the MUA who organised the employees of HPA to engage in the unlawful industrial action. Justice Jagot found that HPA management observed a number of employees who were rostered on the night shift on 7 August 2015, including Mr Ryan Angwin, an employee at the Sydney terminal, had ceased work and were meeting in the shift leader's office while on a speakerphone to a person whose voice was recognised to be that of Mr Keating.[26] Justice Jagot concluded that given the evidence, she had no difficulty in inferring that the MUA, via its officers (specifically Mr Keating in the telephone call to Mr Angwin), organised the employees to refuse to work when required to do so from about 2.30am onwards on 7 August 2015.

• [24] In relation to this matter, Deputy President Saunders in the 2021 application proceedings observed:

[22] What is clear from Justice Jagot's judgments in the Hutchison Ports proceedings is that Mr Keating was involved to a significant extent in the contraventions of the MUA which led her Honour to impose a penalty on the MUA towards the high end of the scale, amounting to 70% of the maximum.

[23] These matters are plainly relevant to my assessment of Mr Keating's fitness and propriety to hold a right of entry permit; they demonstrate Mr Keating's willingness to act in a manner which results in the contravention of industrial laws. They weigh against a conclusion that he is a fit and proper person to hold such a permit because they reduce my confidence that Mr Keating would, in the future, comply with his legislative obligations when exercising his right of entry powers as a permit holder under the Act.[27]

• [25] Mr Keating said that he understood why Justice Jagot inferred that he was involved in organising unlawful industrial action at Hutchison Ports. He regretted that he did not handle the matter differently and he is committed going forward to dissuading employees from taking unlawful industrial action against their employers.[28]

Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union

• [26] On 18 April 2019, Justice Lee of the Federal Court handed down a judgment concerning two proceedings to which Mr Keating (as well as the MUA and Mr McAleer) was a respondent (the Patricks and Qube Decision).[29] First, proceedings brought by Patrick Stevedores Holdings Pty Limited and a related company, Patrick Stevedores Operations Pty Ltd, (NSD 596/2017)) and second, proceedings brought by Qube Logistics (NSW) Pty Ltd, Qube Logistics (SB) Pty Ltd and Qube Logistics (Rail) Pty Ltd (NSD (1594/2017)).

• [27] Justice Lee found that industrial action was organised by the MUA, Mr McAleer and Mr Keating on various shifts between 20 April 2017 and 4 May 2017, and that the MUA, Mr McAleer and Mr Keating were involved in industrial action of employees of Patrick Holdings, who were required to perform certain stevedoring work at the container stevedoring terminal in Port Botany, New South Wales operated by Patrick Operations. In relation to Mr Keating, Justice Lee declared that Mr Keating contravened ss 340 and 417 of the FW Act by organising and being involved in, within the meaning of s 550 of the FW Act, the industrial action taken by employees of Patrick covered by the Patrick Terminals Enterprise Agreement 2016 during the Day Shift on 1 May 2017, namely, the ban on loading empty containers onto trains. Justice Lee also found that Mr Keating contravened s 421 of the FW Act by contravening an interim order of the Commission made on 20 April 2017 by organising and being involved in this industrial action.

• [28] The Commission did not take into account these proceedings, or the facts relating to them, when determining the application for an entry permit for Mr Keating in 2018 because the Federal Court had not, at that time, held a hearing on liability or penalty.

• [29] In the 2021 application proceedings, Deputy President Saunders said Mr Keating's conduct, which resulted in findings of contraventions of the FW Act against him in the Patricks and Qube Decision, demonstrated that he has again acted in a manner contrary to the FW Act. The Deputy President found that it was relevant that Mr Keating's involvement was not as significant as more senior officials of the MUA, such as Mr McAleer; nonetheless, Mr Keating's involvement was significant and further diminished the Deputy President's confidence that he would, in the future, exercise the powers of a right of entry permit holder under the Act within the requirements of the legislation.[30]

• [30] On 29 November 2021, after the 2021 application proceedings, Justice Lee handed down his decision in relation to penalty[31] and made the following findings:

In summary, the conduct involved was objectively serious. It involved deliberate acts on the part of the two individuals, on behalf of the Union, which had the full support at the national level of the Union, to organise a stoppage of work at the Terminal, to "challenge" Patricks and Qube, and to disrupt business...[32]

As to Mr Keating, there is a need for both specific and general deterrence, although I have had regard to Mr Keating's limited history of contraventions. The accumulated maximum penalty that can be imposed is $43,200. While I indicated in the Primary Judgment (at 84 [124]), there was not a cigarette paper of difference between the attitude of Mr McAleer and that of Mr Keating, I consider that Mr Keating's conduct, as compared to McAleer's conduct, was less severe. Accordingly, I consider that a single penalty of $5,000 should be imposed on Mr Keating.[33]

• [31] In relation to this matter, Mr Keating said that he regrets his role in organising employees to take unprotected action against Patrick Stevedores. The judgment against the MUA highlights the importance of compliance with industrial laws and, just as he has since losing his right of entry permit, Mr Keating is committed to dealing with such disputes in the future in a lawful manner.[34]

• [32] In relation to s 513(g), Mr Keating gave evidence in relation to the following five matters:

(i) Stop Industrial Action Order issued on 31 March 2021;

(ii) DP World Discontinued Matter;

(iii) 2015 Fail to Quit Notice;

(iv) Gaza Protest; and

(v) Training with Mr Brian Lacy AO, former Senior Deputy President of the Australian Industrial Relations Commission.

Stop Industrial Action Order issued on 30 March 2021

• [33] On 30 March 2021, Deputy President Bull issued a stop industrial action order under s.418 which required officers of the MUA, including Mr Keating, to stop organising, and not further organise any industrial action.[35]

• [34] The order arose from a dispute between the MUA and DP World engaging a contractor in relation to the performance of a 'rope change' on two quay cranes at its container terminal at Port Botany.

• [35] Mr Mark Hulme, the General Manager - Operations at the Terminal, gave evidence during these proceedings that on 28 March 2021, he had a telephone conversation with Mr Keating about DP World's decision to contract out the work during which Mr Keating quickly became abusive, making comments such as 'you're a f...king idiot, if you think I'm going to stand by and let this happen', and referring to Mr Hulme as a 'coward' and 'prick', and that he was showing 'disrespect' to him.[36] Towards the end of the conversation, Mr Hulme said to Mr Keating that there was a dispute resolution procedure to be followed which can be escalated, to which Mr Keating replied, 'We are not taking this to the Commission. We will deal with it.'[37]

• [36] On 29 March 2021, employees stopped work for four hours after delegates of the MUA representing maintenance employees informed DP World that because of the decision to contract out the rope change on crane 4, employees would 'sit in' and refuse to work. The following day, at 6:00am, the contractor was due to begin the rope change on crane 4 and both the maintenance and general operations day shifts were due to commence work but did not. Mr Keating arrived at the site at around 7:47am.

• [37] In making the order, Deputy President Bull found that the evidence before the Commission established that the MUA was organising the unprotected industrial action as its employee delegates and officials of the MUA were active participants in the dispute with DP World. Further, there was no evidence that employees had embarked on the unprotected industrial action independently without the active advice/support of the MUA officials or its onsite employee delegates.[38]

• [38] In relation to this matter, Mr Keating submits that he did not give evidence in the matter and DP World's witness was not subjected to cross-examination.

DP World Sydney Limited v Construction, Forestry, Maritime, Mining and Energy Union & Ors - NSD445/2021 - Discontinued by consent

• [39] Mr Keating gave evidence that he was named as a respondent in the matter DP World Sydney Limited v Construction, Forestry, Maritime, Mining and Energy Union & Ors - NSD445/2021 which was filed in the Federal Court of Australia on 17 May 2021. Mr Keating stated that the matter was discontinued by consent of the parties, and the allegations contained in the claim were neither tested nor proven.

• [40] I understand from statements made by Deputy President Saunders in the 2021 application decision that these proceedings arose from the same facts and circumstances as the Stop Industrial Action Order issued on 30 March 2021. The Deputy President noted that the MUA and Mr Keating were respondents in those proceedings, and that Mr Keating lodged a defence in which he denied the allegations. As no hearing on liability had been held, no judgment had been handed down and no findings had been made, the Deputy President did not take either the facts described in Deputy President Bull's decision, nor the allegations made in proceedings NSD445/2021 into account. However, the Deputy President noted that in relation to any future application for a right of entry permit for Mr Keating, the facts disclosed in both Deputy President Bull's decision and any decision handed down in relation to NSD445/2021, would likely be relevant matters to be considered when determining whether Mr Keating is a fit and proper person to hold a right of entry permit.

• [41] I agree with Deputy President Saunders that the facts disclosed in Deputy President Bull's decision are likely to be relevant to the consideration of whether Mr Keating is a fit and proper person to hold a right of entry permit. Regardless of the MUA's concerns about DP World's use of contractors, Mr Keating's abusive behaviour towards Mr Hulme as recorded in Deputy President Bull's decision was highly inappropriate and should not have occurred. However, DP World did not proceed with its Federal Court proceedings, so no findings were made against Mr Keating in relation to any alleged breaches of the FW Act arising from the events at DP World from 28 to 30 March 2021. The matters before me, therefore, are limited to Deputy President Bull's findings that officers of the MUA, including Mr Keating, were involved in organising unprotected industrial action. This is a matter which weighs against a finding that Mr Keating is a fit and proper person to hold an entry permit, however, I find that this is a less serious matter than the three Federal Court proceedings referred to above which resulted in Mr Keating and/or the MUA receiving penalties.

• [42] On 23 April 2015, Mr Keating was ordered to pay a $550 fine by the New South Wales Police in relation to a 'fail to quit' notice issued to Mr Keating. The fine was imposed because Mr Keating was asked to leave a licensed premises and, according to the New South Wales Police, he did not do so in a timely enough manner. Mr Keating paid the fine in full and has not had any further fines issued since that time.

• [43] In the 2021 application decision, Deputy President Saunders recorded Mr Keating's evidence that this incident occurred when Mr Keating was at a bar and some of his peers were refused service. Mr Keating attempted to resolve the situation by speaking to the security guard, who required Mr Keating and his colleagues to leave. Mr Keating said that he was not intoxicated during this event, and that he did not refuse to leave the premises. He did not believe that the fine was warranted but paid the fine in full rather than going to the expense and inconvenience of defending the matter in Court. Mr Keating did not understand that by paying the fine, he was admitting that he had committed an offence. Mr Keating has not been issued with any further fines of that nature since that time.[39]

• [44] Deputy President Saunders accepted Mr Keating's evidence and decided not to take this incident into account in assessing Mr Keating's fitness and propriety to hold an entry permit.[40] I agree with the approach of the Deputy President in relation to this matter and regard it as a neutral consideration.

• [45] On 24 March 2024, Mr Keating was arrested and subsequently charged with the offence 'enter/remain on major facility' pursuant to s 214A of the Crimes Act 1900 (NSW). The matter came before a Magistrate on 29 August 2024 and Mr Keating entered a plea of guilty. No conviction was recorded, however, Mr Keating was placed on a good behaviour bond.[41]

• [46] Mr Keating gave the following evidence in relation to this matter:

The MUA has been at the forefront in Australia in condemning the invasion of Gaza. Against this backdrop, I, MUA Organiser Shane Reside, and three other MUA Officials and Delegates joined the Palestinian Community in their protest against an Israeli shipping line to demand stronger Australian government sanctions in response to the conflict in Gaza. Hundreds of protesters, including federal Greens senator, Mehreen Faruqi, took part in what was a peaceful community assembly.[42]

Despite the peaceful nature of the rally, Police responded by prohibiting attendees from continuing the event and began arresting attendees, including me, Mr Reside and the three other MUA members and Officials. Police arrested 19 attendees in total.[43]

Although I do not agree with NSW's anti-protest laws, I am committed to complying

• [47] The relevant offence is in the terms below:

(1) A person must not enter, remain on or near, climb, jump from or otherwise trespass on or block entry to any part of a major facility if that conduct -

(b) seriously disrupts or obstructs persons attempting to use the major facility, or

(c) causes the major facility, or part of the major facility, to be closed, or

On 13 December 2023, the Supreme Court of New South Wales in Kvelde v State of New South Wales [2023] NSWSC 1560 declared that section 214A(1)(c), to the extent that the paragraph makes it an offence for persons engaged in the conduct specified in the paragraph to cause part of the major facility to be closed is invalid.

(d) causes persons attempting to use the major facility to be redirected.

On 13 December 2023, the Supreme Court of New South Wales in Kvelde v State of New South Wales [2023] NSWSC 1560 declared that section 214A(1)(d) is invalid.

Maximum penalty - 200 penalty units or imprisonment for 2 years, or both.

(2) It is a defence to the prosecution of an offence against this section if the person charged proves that the person had a reasonable excuse for the conduct.

(3) A person does not commit an offence under this section if the conduct forms part of the following -

(4) A person does not commit an offence under this section if the conduct occurs -

(b) at a workplace owned, occupied, operated or used by an employer of the person.

(5) This section does not apply to the extent that it prohibits conduct in relation to -

(6) A person does not commit an offence under this section for anything done or omitted to be done in accordance with the consent or authority of -

(c) for a privately owned major facility - the owner or operator of the facility.

major facility means the following, whether publicly or privately owned -

(a) a railway station or other public transport facility prescribed by the regulations,

(b) a private port within the meaning of the Ports and Maritime Administration Act 1995, or another port prescribed by the regulations,

(c) an infrastructure facility, including a facility providing water, sewerage, energy, manufacturing, distribution or other services to the public, prescribed by the regulations.

• [48] In submissions, the Branch invited me to follow the approach of Vice President Gibian in Application by Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division for an entry permit for Shane Reside.[45] The Branch submitted that Mr Keating attended the same rally as Mr Reside under identical circumstances.[46] I find Mr Reside's circumstances are similar insofar as he was arrested and charged in respect of the same protest activity and subjected to the same punishment - a bond without imposition of conviction.

• [49] In the application concerning Mr Reside, the Vice President examined the offence[47] and, absent a conviction, the effect of the good behaviour bond for the purposes of s.513.[48] The Vice President found that the description of the offence provided by Mr Reside, which he accepted, indicated that the event involved a rally and did not suggest that it involved any entry onto premises. On this basis, the Vice President was satisfied that the offence to which Mr Reside plead guilty was not an offence involving entry onto premises for the purposes of s.513(1)(c). Accordingly, it was not a matter that the Commission is required to take into account in assessing whether Mr Reside is a fit and proper person to hold an entry permit.[49]

• [50] Further, the Vice President noted that s.513(1)(c) is enlivened only if the official has been convicted of a relevant offence. Consequently, if a person is guilty of an offence which is otherwise relevant, but they are not convicted, the offence is not required to be taken into account in assessing whether the person is a fit and proper person to hold an entry permit for the purposes of s.513(1)(c).[50]

• [51] I concur with and adopt the Vice President's analysis. I find that the offence did not result in a conviction nor, did it pertain in any event an offence involving 'entry onto premises' for the purposes of s.513(1)(c)(i). Nonetheless, I am satisfied that it is a factor which I must consider.[51]

• [52] The offence to which Mr Keating plead guilty is, in my opinion, capable of rationally affecting the assessment of whether he is a fit and proper person to hold an entry permit, and, as a result, I am required to take it into account for the purposes of s.513(1)(g). The rally was described by Mr Keating as a peaceful community assembly which I accept. There is no suggestion that Mr Keating acted aggressively or interfered with property while participating in the rally. Having considered the nature and circumstances of the offence and Mr Keating's explanation, I am satisfied that the incident does not weigh against a finding that Mr Keating is a fit and proper person to hold an entry permit.

Training with Mr Brian Lacy AO, former Senior Deputy President of the Australian Industrial Relations Commission

• [53] In correspondence dated 4 September 2024, the National Office of the MUA sought to engage Mr Brian Lacy AO, a former Senior Deputy President of the Australian Industrial Relations Commission to undertake essentially two functions on its behalf with respect to Mr Keating - to provide further training to Mr Keating about his obligations under workplace law and secondly to prepare a report canvassing the training delivered and other matters.[52]

• [54] The training request was couched in the following terms:

We request that you provide training to Keating that traverses the conduct the subject of the decision of the Deputy President in 2021. We ask that you address with Keating and provide focused training to him on:

a. the reasons that Keating's conduct was found to contravene industrial law;

b. the importance of Part 3-1 of the FW Act and, in particular, the right to freedom of association it enshrines;

c. the concept of 'industrial activity' under s 347 of the FW Act and the protections provided by ss 346, 348 and 349 in relation to union membership (and nonmembership (sic)) and industrial activity, including why those protections are important;

d. the reasons why Keating's contravening conduct was antithetical to the protections provided by Part 3-1 of the FW Act;

e. the importance of complying with Court orders as well as the consequences of a failure to do so;

f. The rights and responsibilities of permit holders under Part 3-4 of the FW Act and the importance of those rights and responsibilities and the necessity for permit holders to comply with their obligations as permit holders.

We also ask that you take steps during the training to assess Keating's understanding of the training material, including by asking him to explain to you in his own words the matters set out above. We also ask that you assess Keating's attitude to his historical contraventions and whether he is committed to complying with his legal obligations (including as an entry permit holder) moving forward.[53]

• [55] Training was conducted via Zoom in a formal and structured way over the course of one and a half hours on 9 September 2024.[54] I note that the training delivered by Mr Lacy aligns with that relied upon in Application for Tracey.[55]

• [56] Mr Lacy provided the following evidence in relation to the training:

Based on Keating's participation in the training, his questions and responses to propositions put to him in the training session and his capacity to reflect the salient points covered in the training, I am of the opinion that he has an understanding of:

(i) why his conduct in the Port Botany industrial action in December 2012 contravened s 417 of the FW Act;

(ii) why his conduct in respect of the Sydney terminal in August 2015 contravened s 417 of the FW Act;

(iii) why his conduct in respect of the Patrick sublease to Qube in May 2017 contravened ss 340(1), 417, and 421(1) of the FW Act;

(iv) the purpose and importance of Parts 3-1, 3-3 and 3-4 of the FW Act and the implications of non-compliance with penalty provisions; and

(v) the steps he needs to take in the future to ensure that he avoids contravening conduct in respect of relevant provisions of Parts 3-1, 3-3 and 3-4 of the FW Act.

Keating engaged positively in the training. He was receptive to the information and direction that was given during the training period. He listened carefully and responded well to questions asked of him during discussions around the PowerPoint presentation demonstrating an understanding of his obligations and responsibilities under Part 3-4 of the FW Act. He engaged openly in discussions and demonstrated that he well understood the reasons for his past contravening conduct.[56]

Conclusion in relation to permit qualification matters

• [57] The last occasion that Mr Keating was granted a permit was in 2018.[57] At that time, Commissioner Saunders, as he then was, considered the matter of DP World Sydney Limited v Maritime Union of Australia (No 2)[58] as a matter under s.513(1)(d)[59] and the matter of Fair Work Ombudsman v Maritime Union of Australia[60] as a matter under s.513(1)(g),[61] as the decision on penalty had been reserved, with the result that no penalty had, at that time, been imposed in relation to the events between 7 and 14 August 2015. The Commissioner determined that both of these matters weighed against a finding that Mr Keating is a fit and proper person to hold an entry permit but concluded that these were outweighed by the those permit qualification matters in ss.513(1)(a)-(c) and (e)-(f) which supported such a conclusion.[62]

• [58] When Deputy President Saunders considered whether to grant a permit to Mr Keating three years later in 2021, the Deputy President took into account the Federal Court proceedings referred to in the 2018 application as matters under s.513(1)(d), and the matter of Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union as a matter under s.513(1)(g),[63] as the penalty had not yet been determined. The Deputy President concluded:

After taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act, I am not satisfied, on balance, that Mr Keating is a fit and proper person to hold a right of entry permit. The matters which weigh in favour of a finding that Mr Keating is a fit and proper person to hold a right of entry permit are outweighed by those that weigh against such a conclusion. Most significantly, Mr Keating's conduct in 2012, 2015 and 2017, as found in the Federal Court proceedings to which I have referred, demonstrates that in difficult industrial situations he is willing to take, or be involved in, conduct in contravention of the Act. As a result of that repeated past conduct and notwithstanding that Mr Keating has not during his career been found to have contravened his obligations as a right of entry permit holder, I do not have confidence that, when faced with a difficult situation on an employer's premises, Mr Keating will comply with his obligations as a right of entry permit holder.[64]

• [59] The three Federal Court proceedings referred to in the 2021 Decision and which form part of my consideration of the matters under s.513(1) of the FW Act establish that Mr Keating engaged in repeated contraventions of the FW Act during a five-year period. If Mr Keating continued to engage in such conduct, it would be difficult to see how he could satisfy the Commission that he is a fit and proper person to hold an entry permit.

• [60] However, I note that the last occasion that adverse findings were made against Mr Keating was by Deputy President Bull more than four years ago and that the last occasion that Mr Keating was found to have contravened the FW Act by the Federal Court was in respect of conduct which occurred almost seven years ago. Both of these matters were known to the Commission during the 2021 application proceedings. It is relevant to my consideration that Mr Keating has not been found by this Commission or any Court to have engaged in any unlawful behaviour since that time.

• [61] The Branch referred me to a decision of Deputy President Gostencnik in relation to the application of the Construction, Forestry and Maritime Employees Union (CFMEU) for a right of entry permit to be issued to its official, Mr William Warren Tracey, who is the Divisional Branch Secretary of the WA Divisional Branch.[65] In 2013, Mr Tracey was refused a new permit after he had several pecuniary penalties imposed on him for contraventions of industrial law.[66] Mr Tracey attended training with Mr Lacy of a similar nature to that provided to Mr Keating. Deputy President Gostencnik accepted the CFMEU's submission that Mr Tracey's participation in this training should be accorded some significance and that it weighed in favour of a conclusion that Mr Tracey is today a fit and proper person to hold a right of entry permit. I make the same finding in respect to the training attended by Mr Keating and I accept Mr Lacy's evidence that the training caused Mr Keating to reflect on his past conduct.

• [62] Mr Keating said that he regrets this conduct and is committed to not repeating it and to complying with the law more generally. Mr Keating said he appreciates that it is important that he complies with industrial law in order to retain an entry permit.[67] Mr Keating is committed to the importance of the rule of law, and ensuring that all participants in the industrial sphere comply with their obligations under the law and deal with their disputes in accordance with the law.[68] Mr Keating said that an entry permit is important for him to do his job and to provide effective representation to members. Mr Keating said that he will not engage in conduct that will put the entry permit in jeopardy. I accept Mr Keating's evidence as truthful and genuine in relation to these matters.

• [63] In my view, the permit qualification matters which weigh against a finding that Mr Keating is a fit and proper person to hold an entry permit are outweighed by Mr Keating's participation in the training with Mr Lacy, commitment to complying with industrial law and the law more generally, regret for his past actions and favourable recent record, together with the matters in ss.513(1)(a), (b), (c), (e) and (f).

• [64] Taking into account the permit qualification matters, and for the reasons earlier stated, I am satisfied that Mr Keating is a fit and proper person to hold an entry permit. The application by the Branch for an entry permit to be issued to Mr Keating is granted. I will not impose any conditions on the entry permit.

[4] [2021] FWC 6019

[5] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [5]

[6] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) [2024] FWC 1999, [4] citing Maritime Union of Australia [2014] FWCFB 1973, [23] and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522, [32]

[7] Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 per North, Flick and Bromberg JJ, [35]-[36]

[8] Statement of Paul Anthony Keating dated 31 January 2025, [12]

[15] [2014] FCA 596

[16] [2017] FCA 1363

[17] [2019] FCA 451

[18] Statement of Paul Anthony Keating dated 31 January 2025, [21]

[19] DP World Sydney Limited v Maritime Union of Australia (No 2) [2014] FCA 596

[21] [2015] FWC 580, [5]-[12]

[22] [2018] FWC 3676, [17]

[23] [2021] FWC 6019, [16]-[18]

[25] Fair Work Ombudsman v Maritime Union of Australia [2019] FCA 1942 (Hutchison Ports Penalty Decision)

[27] [2021] FWC 6019, [22]-[23]

[28] Statement of Paul Anthony Keating dated 31 January 2025, [25].

[29] [2019] FCA 451

[30] [2021] FWC 6019, [28]

[31] Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481

[34] Statement of Paul Anthony Keating dated 31 January 2025, [29].

[35] DP World Sydney Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 1746

[38] [2021] FWC 1746 [39]

[41] Statement of Paul Anthony Keating dated 31 January 2025, [36]

[45] [2024] FWC 3409

[46] Branch's Outline of Submissions, [56]

[47] [2024] FWC 3409, [15]-[20]

[52] Statement of Paul Anthony Keating dated 31 January 2025, Attachment A of Annexure PK-9

[54] Report by Mr Brian Lacy dated 25 September 2024, [13]

[55] [2024] FWC 388, [31]-[32]

[56] Report by Mr Brian Lacy dated 25 September 2024, [26]-[27]

[57] [2018] FWC 3676

[58] [2014] FCA 596

[59] [2018] FWC 3676, [17]

[60] [2017] FCA 1363

[61] [2018] FWC 3676, [18]

[63] [2021] FWC 6019, [28]

[65] Construction, Forestry and Maritime Employees Union [2024] FWC 388

[67] Statement of Paul Anthony Keating dated 31 January 2025, [42]

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