Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Wendel James Moloney
[2023] FWC 3426
•21 DECEMBER 2023
| [2023] FWC 3426 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.510 - Suspension or revocation of a right of entry permit
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Wendel James Moloney
(RE2023/332)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 21 DECEMBER 2023 |
In the matter of the entry permit of Mr Wendel James Moloney - whether action must be taken to revoke or suspend permits.
In Fair Work Ombudsman v Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia (443 Queen St Case)[1] the Federal Circuit and Family Court of Australia (Division 2) (Judge Vasta) declared that Wendel James Moloney, an official of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and a right of entry permit holder under the Fair Work Act 2009 (Cth) (Act), contravened s 500 of the Act. The contravention occurred at a construction site in Brisbane on 15 December 2021. Probuild Constructions Pty Ltd (Probuild) was constructing a 264-apartment residential tower at 443 Queen Street, Brisbane. Mr Moloney was found to have acted in an improper manner while exercising a right of entry under Part 3-4, Division 3 of the Act by failing to report to the site office and by failing, when requested, to produce his entry permit and thereafter exercising a State or Territory OHS right. Pecuniary penalties were imposed on Mr Moloney and the CEPU. Mr Moloney was ordered to pay the sum of $3,200 and the CEPU[2] the sum of $24,000.
Mr Moloney was issued a right of entry permit by Deputy President Dean on 11 May 2023. Section 510(1) of the Act provides that the Commission must revoke or suspend each entry permit held by a permit holder if it is satisfied that any of several enumerated events has happened since the first of those permits was issued. The penalties were imposed by the Court on 26 October 2023. An event described in s 510(1)(d) of the Act is that the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of Part 3-4 by the permit holder. That event has happened since 11 May 2023 when Mr Moloney’s permit was issued and so consideration must be given to whether action must be taken to revoke or suspend Mr Moloney’s entry permit under s 510(1).
The relevant principles applicable to the exercise of power under s 510(1) are not in dispute. As I observed In the matter of the Entry Permit of Mr Beau Richard Seiffert:[3]
“[12] The occurrence of an event identified in ss 510(1)(a) to (f) since the date on which the first of any entry permits held by a permit holder was issued, results in a suspension or revocation of the relevant permit or permits, unless s 510(1) does not apply by reason of s 510(3) or the Commission exercises a discretion under s 510(2) not to suspend or revoke an entry permit because of the happening of an event in s 510(1)(d) or (f) once it is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.
[13] The exercise of the Commission’s powers and functions under ss 510(1) and 510(2) is to be informed, not by the need to punish a permit holder, but rather by the need to establish or maintain a balancing of rights and obligations between employees, registered organisations, occupiers of premises and employers. The power in s 510 is protective and corrective, not penal.[4] The need for specific or general deterrence are matters for the court in considering the penalty that should be imposed in relation to a given contravention. In deciding whether a suspension or revocation of an entry permit would be harsh or unreasonable; whether to revoke rather than suspend an entry permit; and the duration of any suspension and/or ban period, it will be relevant to have regard to the extent to which the Commission can have confidence that the permit holder would exercise her or his rights as a permit holder under the Act in a manner which achieves the necessary balance between the rights mentioned in s 480 of the Act.[5]
[14] Other relevant matters in assessing whether suspension or revocation of an entry permit under s 510(1) would be harsh or unreasonable in the circumstances include the objects of Part 3-4; the nature and gravity of the underlying contravention of Part 3-4; the impact that the revocation or suspension of the entry permit/s might have on the organisation, its members and the permit holder; whether training has been undertaken by the entry permit holder since the events; and general character evidence.[6] . . .”[7]
The Commission has not taken action in relation to Mr Moloney’s permit under s 510(1) of the Act previously and so has not taken the imposition of the penalties earlier described into account when taking action under s 510(1). Moreover the CEPU and Mr Moloney, properly in my view, do not contend that the Commission is not required to suspend or revoke an entry permit under s 510(1)(d) because suspension or revocation would be harsh or unreasonable in the circumstances. Instead, they contend that having regard to the protective and corrective nature of the Commission’s power under s 510, no good reason or purpose is served by revoking Mr Moloney’s permit. Mr Moloney and the CEPU contend for a suspension of the permit for the minimum suspension period specified in s 510(4). I agree.
The circumstances of the contravening conduct in which Mr Moloney engaged are set out in the Court’s judgment[8] and are as follows:
- On 15 December 2021, Probuild was constructing a 264-apartment residential tower at 443 Queen Street, Brisbane. Part of the building site was on Queen Street. This was demarcated and in the control of Probuild. Temporary fencing and hoarding prevented access to the site. On 15 December 2021 there were three “gates” in use to access the site.
- Each of the gates had signage on it directing visitors to report to the site office. Probuild had subcontracted different areas of work to third-party subcontractors. Some of those workers were eligible to be members of the CEPU.
- On 15 December 2021, at about 6:30 am, there was a safety incident on the project. A crane was lowering a load onto a truck. The crane crew unhooked the load. When they did, part of the load rolled off the side of the truck and fell into the loading zone.
- Around 7:30 am, a meeting was held, in the shed on the worksite, between Probuild and the subcontractor employees. That meeting discussed the incident from a safety perspective. After the meeting had concluded, employees started leaving the shed to return to work. They were called back by a Construction, Forestry, Maritime, Mining and Energy Union site delegate who asked the subcontractors to return.
- At this time, Mr Moloney, a CEPU organiser, entered the site and walked towards the shed where the safety meeting was being held. He did not report to the site office upon, or after, entering the site.
- A Probuild official spoke to Mr Moloney asking him to sign the site visitor register and asking whether he had his permits (under Queensland workplace health and safety legislation). Mr Moloney did not respond to the official but entered the area and spoke to the workforce. After this, Mr Moloney left the site. Later that day Mr Moloney sent a text message to the official which contained his entry notice under the Queensland legislation.
The Court imposed penalty on Mr Moloney was about 24% of the maximum penalty. Mr Moloney’s contravening conduct described above was objectively serious, but it was engaged in for a very short period and in the context of responding to concerns about a serious safety issue. Mr Moloney admitted the contravention – which suggests contrition or at least an acceptance of wrongdoing – and his conduct was reactive to a serious health and safety incident rather than gratuitous, part of an organised industrial campaign or for an ulterior or non-permitted purpose. Viewed in context, Mr Moloney’s contravening conduct was not of the most serious or grave kind. I accept that the conduct was at the lower end of the seriousness spectrum.
Mr Moloney has a history as an organiser and permit holder – having first been issued a permit in November 2011 – and appears to have exercised entry rights without engaging in any other contravening conduct. The most recent permit was issued, as earlier noted, on 11 May 2023, some 17 months after the contravening conduct. There is no suggestion that between those dates or since, Mr Moloney has acted inappropriately or otherwise contravened an applicable industrial or OHS law. In the lead up to the issue of the permit in May 2023, Mr Moloney undertook training about the rights and obligations of a permit holder under the Act.
Taken together these considerations tell against the revocation of Mr Moloney’s permit. The protective and corrective function of the power in s 510 is sufficiently served and the necessary balancing of rights set out in the object of Part 3-4 (s 480) is achieved by suspending the permit. For the same reasons, a period of suspension beyond the minimum suspension period specified in s 510(4) is not justified in the circumstances.
Conclusion
For the reasons stated, I propose to suspend Mr Moloney’s entry permit for a period of three months and to impose a corresponding ban period. Mr Moloney is reminded of his obligation under s 517(1) of the Act to return the suspended permit to the Commission within 7 days of the date of this decision.
Order
I order:
Pursuant to s 510(1) of the Fair Work Act 2009 (Act) the entry permit held by Wendel James Moloney is suspended for a period of 3 months commencing on 21 December 2023; and
Pursuant to s 510(4) of the Act, issuing any further entry permits to Wendel James Moloney is banned for a period of 3 months commencing on 21 December 2023.
DEPUTY PRESIDENT
[1] [2023] FedCFamC2G 957
[2] By ss 793 and 550(2)(c) of the Act, the CEPU was directly or indirectly, knowingly concerned in, or party to, Mr Moloney’s contravention and, as a result, the CEPU contravened s 500 of the Act.
[3] [2022] FWC 222
[4] In the matter of the Entry Permit of Blake Patrick Hynes[2020] FWC 97 at [16]; Mr Muhammed Kalem [2017] FWC 5086 at [19]; Mr Nigel Davies [2019] FWC 2022 at [21]
[5] Fair Work Commission v Stephen Long[2017] FWC 6867 at [25]
[6] Parker and others [2011] FWA 2577 at [26]-[28], [33] and [34]
[7] In the matter of the Entry Permit of Mr Beau Richard Seiffert[2022] FWC 222 at [12]-[14]
[8] [2023] FedCFamC2G 957 at [8]-[14]
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