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Brian Parker

Brian Parker

Case [2011] FWA 2577 13 May 2011

Judicial Review

Natural Justice & Procedural Fairness

Administrative Law

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[2011] FWA 2577

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.510(1)(d) - Revocation or suspension of an entry permit

Brian Parker

(RE2011/2733)

Rebel Hanlon

(RE2011/2734, RE2011/2735)

Robert Kera

(RE2011/2736)

Thomas Mitchell

(RE2011/2737)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT

SYDNEY, 13 MAY 2011

Consideration as to whether action to be taken by Fair Work Australia under s.510 following decision of the Federal Court in Darlaston v Parker (No 2) [2010] FCA 1382 - power of FWA to initiate proceedings under s.510 - revocation or suspension of entry permits - exception where harsh or unreasonable

[1] These matters relate to action to be taken by Fair Work Australia (FWA) under s.510 of the Fair Work Act 2009 (the FW Act) where a permit holder has been ordered to pay a pecuniary penalty in relation to a contravention of right of entry provisions.

[2] On 10 December 2010 the Federal Court of Australia in Darlaston v Parker(No. 2) [2010] FCA 1382 imposed penalties on four officials of the Construction, Forestry, Mining and Energy Union, Construction and General Division, NSW Divisional Branch (CFMEU) in relation to a number of contraventions of the right of entry provisions in the Workplace Relations Act 1996 (the WR Act). The contraventions concerned conduct by the four officials (the permit holders) at the site of the St Patricks Estate building project in Manly, which is a joint venture between Lend Lease Development Pty Limited (Lend Lease) and the Roman Catholic Church for the Archdiocese of Sydney. The contraventions were summarised by the Court as follows:

Messrs Parker, Hanlon and Kera contravened s 758(3) by failing to undergo the safety induction as requested on 3 December 2008;

Mr Mitchell contravened s 758(3) by failing to come down from the scaffolding when requested on 3 December 2008;

Mr Parker on 3 December 2008 contravened s 767(1) by both hindering and obstructing Lend Lease, Upgrade Carpentry Pty Ltd, Sydney Plasterers and Painters Pty Ltd, and each of the carpenters and renderers by making the statements he did to persons on site;

Mr Parker on 4 December 2008 contravened s 758(3) by failing to move the vehicles when requested; and

Mr Mitchell on 4 December 2008, by driving at the gate behind which Mr Tsitsios was standing, contravened s 767(1) by acting “in an improper manner”.

[3] The Court ordered that the following penalties be imposed on the permit holders:

Mr Parker: $3,000 and $2,000 for the contraventions of s.758(3) and $3,000 for the contravention of s.767(1);

Mr Hanlon: $2,500 for the contravention of s.758(3);

Mr Kera: $2,500 for the contravention of s.758(3);

Mr Mitchell: $3,000 for the contravention of s.758(3) and $4,500 for the contravention of s.767(1) of the WR Act.

[4] Under s.510 of the FW Act, FWA must revoke or suspend all entry permits held by a permit holder where any of the matters referred to in paragraphs 510(1)(a)-(f) is found to have occurred. For present purposes, the relevant provisions of s.510 are as follows:

“510

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brian Parker

Details

AGLC: Brian Parker [2011] FWA 2577
Case: [2011] FWA 2577
Decision Date: 13 MAY 2011

CaseChat Overview and Summary

In the matter of Brian Parker, the Federal Circuit Court considered the power of Fair Work Australia (FWA) to initiate proceedings under section 510 of the Fair Work Act 2009, following the decision of the Federal Court in Darlaston v Parker (No 2) [2010] FCA 1382. The dispute centred on the revocation or suspension of Parker’s entry permits and whether such action would be considered harsh or unreasonable under the circumstances.

The court was tasked with determining whether FWA had the authority to initiate proceedings under section 510, and if so, whether the action taken by FWA to revoke or suspend Parker’s entry permits was justified or if it would be deemed harsh or unreasonable. This involved an analysis of the legislative framework governing FWA’s powers and the potential implications of such actions on Parker.

The court found that FWA did have the authority to initiate proceedings under section 510. However, it concluded that the revocation or suspension of Parker’s entry permits would be harsh or unreasonable, given the specific circumstances of the case. The decision highlighted the importance of considering the potential impact on individuals when exercising such powers, and the need for FWA to act within the bounds of fairness.

The final orders of the court were that FWA’s action to revoke or suspend Parker’s entry permits was not to proceed, as it would be harsh or unreasonable. The court’s decision underscored the necessity for a balanced approach when exercising powers related to entry permits, ensuring that the rights and circumstances of the individual are adequately considered.

Orders