A prominent Western Australian union official has had new conditions imposed on his entry permit after AMMA revealed he failed to disclose his involvement in unlawful industrial action on his application to the Fair Work Commission (FWC).

Background

In November 2020, FWC Deputy President Gostencnik issued an entry permit to Doug Heath (Mr Heath), an AWU-CFMMEU Offshore Alliance union official, after an earlier entry permit issued to him was misplaced.

A recent decision of Deputy President Gostencnik revisits that decision after AMMA raised concerns about disclosures made (or not made) in support of the application of Mr Heath’s permit.

Legal principles

Section 512 of the Fair Work Act 2019 (FW Act) sets out that the FWC may issue a permit to a union official if it is satisfied they are a fit and proper person to hold the entry permit.

Section 513(1) of the FW Act sets out the permit qualification matters the FWC must take into account when deciding whether the official is a fit and proper person.

The permit qualification matter in question was that under section 513(1)(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;

AMMA raised concerns to the FWC that Mr Heath had failed to disclose a fine paid by the CFMMEU pursuant to an order made by the Federal Court of Australia (the Court).

The history of that matter was that in 2012, Mr Heath was involved in industrial action on a Chevron vessel that that was later found to have contravened the FW Act (Chevron matter).

That conduct is detailed in three related judgments of the Court, culminating in the CFMMEU being ordered to pay a pecuniary penalty of $30,000 in April 2020 for unlawful industrial action, the organisation of which was primarily carried out by Mr Heath, and others.

Chevron LNG operations (file image)

FWC reconsiders granting Mr Heath’s entry permit

Given Mr Heath had failed to disclose such a penalty, the FWC could not have weighed the permit qualification matter under section 513(d) correctly. Pursuant to section 602 of the FW Act, Deputy President Gostencnik sought to address this defect by considering the permit qualification matters under s 513(1) afresh.

After considering factors weighing in favour of granting Mr Heath an entry permit, Deputy President Gostencnik then went on to consider adverse factors weighing against granting Mr Heath an entry permit.

These adverse factors included:

  • reporting conditions imposed on three previous permits;
  • Mr Heath’s involvement in a right of entry abuse of powers matter related to conduct occurring in 2007;
  • Mr Heath’s involvement in the Chevron matter and his failure to accept his conduct was characterised as organising unprotected industrial action; and
  • Mr Heath’s recent lack of diligence in completing declarations, having failed to disclose an entry permit condition in an entry permit application in 2018.

As part of its submissions, AMMA contended that Mr Heath was not a fit and proper person to hold an entry permit, especially considering his involvement in the Chevron matter as a key organiser, the highly improper nature of that conduct, and the severity of the penalty imposed.

Deputy President Gostencnik agreed with AMMA’s contentions, but for the weight AMMA assigned to the adverse matters.

Decision / outcome

Ultimately, Deputy President Gostencnik decided the weight of the adverse matters were not sufficient to determine Mr Heath was not fit and proper to hold an entry permit.

However, the Deputy President decided his earlier decision should be revoked, and Mr Heath be granted a conditional entry permit.

The conditions for Mr Heath’s right of entry permit include that he complete training with a prominent industrial relations barrister about the Chevron matters, the Court’s finding in relation to his conduct in those matters and proper procedure for future permit applications.

It is also a condition of Mr Heath’s entry to a worksite that he carries and produces a certificate of completion of the training.

Deputy President Gostencnik further noted and approved of an undertaking by Mr Heath to write to the FWC about whether he accepts the characterisation of his conduct in the Chevron matter after completing training on the issue.

Implications for employers  

This decision serves to confirm that right of entry permit holders need to take their obligations seriously.

As Deputy President Gostencnik observed in his decision, Mr Heath (and by extension, all union officials) are not ordinary lay persons. They are persons who seek to exercise statutory rights of entry. Persons with such rights must exercise those rights in a proper manner, and act within the boundaries of the law.

AMMA raised its concerns with the FWC as an employer association representing hundreds of employers in the energy and resources space which are directly impacted when right of entry holders fail to adhere to their statutory obligations.

AMMA is committed to serving the interests of its members and the energy and resources sector generally.  To discuss the implications of this decision or for advice regarding union right of entry issues, please contact your local AMMA office.