Fair Work Act 2009

s.512 - Right of entry

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

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.

[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.

[1] [2016] FCA 768.

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