Daniel Bessell
[2022] FWC 2519
•20 SEPTEMBER 2022
| [2022] FWC 2519 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.510 - Upon referral, revoke or suspend an entry permit
Daniel Bessell
(RE2022/533)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 20 SEPTEMBER 2022 |
Penalties imposed by the Court for contraventions of ss 499 and 500 – whether permit must be suspended under s 510 – genuine contrition – no concern that conduct will recur – suspending permit would be punitive and unreasonable
Mr Daniel Bessell is an organiser employed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). He holds a right of entry permit under s 512 of the Fair Work Act 2009 (the Act). On 17 June 2022, the Federal Circuit and Family Court of Australia (Court) imposed penalties on Mr Bessell for contraventions of the right of entry provisions in Part 3-4 of the Act. The question for determination in the present matter is whether, as a consequence of the imposition of those penalties, the Fair Work Commission (Commission) must suspend or revoke Mr Bessell’s entry permit under s 510(1), or whether it is not required to do so because the exception in s 510(2) applies, namely that it would be harsh or unreasonable to suspend or revoke Mr Bessell’s permit in the circumstances.
The background to this matter focuses on events that occurred in July 2018 at a construction site at Buddina on the Sunshine Coast in Queensland, for which RGB Constructions Pty Ltd (RGB) was the principal contractor. On 2 July 2018, Mr Bessell passed by the site and saw what he perceived to be various safety contraventions, including a distribution board mounted to a handrail. On 3 July 2018, Mr Bessell arrived at the site office together with another CEPU organiser, Mr Gould, and an organiser of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), Mr Davis. RGB’s safety advisor, Mr Mullins, gave them a document setting out requirements that site visitors must meet, which included that they be escorted at all times and comply with any reasonable instructions of RGB relating to workplace health and safety. RGB’s project manager, Mr Waters, told the three organisers that he would first show them around the entire site, and that afterwards he would take them to any particular areas they may wish to inspect.
As the group was walking through the site, Mr Bessell said that he wanted to inspect the distribution board he had seen the previous day, which was some thirty metres away. Mr Mullins said that they would first go to the muster point to discuss the relevant issues. Mr Bessell said that he wanted to inspect the distribution board now and then walked away from the group towards the board. Mr Mullins told Mr Bessell to come back but he refused. Mr Waters reminded Mr Bessell that he must remain accompanied and told him to proceed to the muster point but Mr Bessell said that he wanted to see the board. Mr Gould and Mr Davis followed Mr Bessell to the distribution board. Mr Waters told the organisers that if they did not accompany him to the muster point, he would call the police. They ignored him. Mr Bessell said that he would remain where he was and continued to look at the distribution board. Mr Waters called the police. Some five minutes later the organisers began to make their way to the muster point with Mr Waters. Mr Bessell then saw another distribution board and walked off towards it. Mr Waters told Mr Bessell that he had to go to the muster point. Mr Bessell ignored him. Police officers arrived at the site and directed Mr Bessell to leave. He refused to do so. State safety inspectors arrived shortly afterwards. They inspected the site and had no immediate safety concerns in relation to the distribution boards. Mr Waters closed the site for the day, and the organisers left.
The Australian Building and Construction Commissioner (ABCC) brought proceedings against Mr Bessell and the CEPU in respect of alleged contraventions of Part 3-4 of the Act. On 17 May 2022, Vasta J made findings that on 3 July 2018 Mr Bessell had committed two contraventions of s 499, as well as a contravention of s 500 (Liability Decision). On 17 June 2022, his Honour made declarations that by Mr Bessell’s conduct on 3 July 2018, both he and the CEPU had contravened ss 499 and 500 of the Act. His Honour ordered that Mr Bessell and the CEPU pay pecuniary penalties of $12,000 and $60,000 respectively (Penalty Decision).
The Commission then advised Mr Bessell, the CEPU and the ABCC that, pursuant to s 510 of the Act, it would consider whether the permit held by Mr Bessell should be revoked or suspended. The ABCC sought to be heard. Directions were issued that the parties file written submissions and any witness statements. The CEPU filed written submissions on behalf of Mr Bessell, as well as witness statements from Mr Bessell, Mr Christopher Lynch, who is the assistant branch secretary of the CEPU, Mr John Thompson, who provided training to Mr Bessell, and Mr Jason Hunt, a member of the Queensland Parliament, who spoke of Mr Bessell’s good character. The ABCC did not file any evidence. It did not seek to cross-examine Mr Bessell or the other CEPU witnesses. The parties requested that the Commission determine the matter on the papers. I consider it appropriate to do so.
Statutory provisions
Section 510 of the Act relevantly provides the following:
“When the FWC must revoke or suspend entry permits
(1) The FWC must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that any of the following has happened since the first of those permits was issued:
...
(d) the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of this Part by the permit holder;
...
(2) Despite subsection (1), the FWC is not required to suspend or revoke an entry permit under paragraph (1)(d) or (f) if the FWC is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.
(3) Subsection (1) does not apply in relation to a circumstance referred to in a paragraph of that subsection if the FWC took the circumstance into account when taking action under that subsection on a previous occasion.
Minimum suspension period
(4) A suspension under subsection (1) must be for a period that is at least as long as the period (the minimum suspension period) specified in whichever of the following paragraphs applies:
(a) if the FWC has not previously taken action under subsection (1) against the permit holder—3 months;
(b) if the FWC has taken action under subsection (1) against the permit holder on only one occasion—12 months;
(c) if the FWC has taken action under subsection (1) against the permit holder on more than one occasion—5 years.
Banning issue of future entry permits
(5) If the FWC takes action under subsection (1), it must also ban the issue of any further entry permit to the permit holder for a specified period (the ban period).
(6) The ban period must:
(a) begin when the action is taken under subsection (1); and
(b) be no shorter than the minimum suspension period.”
Section 510 is found in Part 3-4 of the Act. The object of this Part, set out in s 480, is to establish a framework for officials of organisations to enter premises that will balance the rights of various persons: the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of the Act, occupational health and safety laws and industrial instruments; the right of employees to receive, at work, information and representation from officials of organisations; and the right of occupiers of premises and employers to go about their business without undue inconvenience. Whether it would be harsh or unreasonable to suspend Mr Bessell’s permit in all of the circumstances of the present case is informed by the ‘balancing’ object of the Part.
The Commission’s function under s 510 has a corrective and protective dimension (see Kalem [2017] FWC 5086 at [19] and Davies [2019] FWC 2022 at [21]). Suspending or revoking a permit of a person on whom penalties have been imposed for a breach of the right of entry provisions in the Act may serve to correct the person’s behaviour by demonstrating that rights under Part 3-4 carry obligations, and that if the obligations are not observed, the rights may be removed. Suspending or revoking a permit may also be protective because it prevents the possible recurrence of non-compliant conduct occurring on occupiers’ premises, either indefinitely or for the period of a suspension. The Commission’s role under s 510 is not solely corrective and protective. Also to be considered are the interests of the official and the union which would be affected by the suspension or revocation of the official’s permit. It is necessary to consider, in the context of s 510(2), whether any corrective, protective, or other effect that furthers the object of the Part might be outweighed by the consequences that suspension or revocation of the permit might have for the permit holder or the union.
It is clear that the Commission’s role under s 510 does not have a punitive dimension. Where a person has been ordered to pay a pecuniary penalty for a contravention of Part 3-4, the court will have already determined and ordered condign punishment for the contraventions in question. Dispensing punishment is not ordinarily a function of an arbitral body such as the Commission and there is no indication in the Act that the Commission should have such a role in the context of s 510.
Submissions of the parties
The CEPU contended that suspension or revocation of Mr Bessell’s permit would be harsh or unreasonable. First, as to the gravity of Mr Bessell’s contravening conduct, the CEPU emphasised that there was no finding by the Court that anyone had been put at risk, or that the conduct was motivated by any ulterior purpose.
Secondly, the conduct should be seen in the broader temporal context of Mr Bessell’s long history working as a union organiser and permit holder since 2009. The contravening conduct occurred in July 2018, and both before and since that time Mr Bessell had committed no breach of the Act. As Vasta J noted in the Penalty Decision, the conduct was an aberration.
Thirdly, Mr Bessell had made a clear statement of deep and meaningful contrition for his contravening conduct. He had also made a persuasive statement that he intends to comply fully with all safety requirements in the future. It was submitted that the Commission should accept Mr Bessell’s statements about his understanding of why he contravened the Act and his acceptance that he must meet his obligations when exercising entry rights.
Fourthly, revoking or suspending Mr Bessell’s permit would be harsh in light of his personal circumstances, which include the fact that Mr Bessell shares responsibility for his child with his former partner and lives in a single-income household, and if his permit were suspended, he may have to take unpaid leave, resulting in financial hardship.
Fifthly, suspension or revocation would be harsh in its effects on the CEPU, given the union’s limited resources for providing organising services to members in regional Queensland. Mr Bessell covers a very large geographic area that is not easily serviced from elsewhere, particularly given the specialist nature of the industry. If Mr Bessell’s permit were suspended or revoked, the union could not allocate another organiser to replace him.
Sixthly, Vasta J had noted that the penalties imposed on the union and Mr Bessell did not reflect the need for specific deterrence. This observation was made having regard to the record of both the CEPU and Mr Bessell, as well as the corrective action taken by the union in respect of another matter that had come before the judge. This record supported a conclusion that suspension or revocation of Mr Bessell’s permit was unnecessary to achieve a balance between the rights of a permit holder and the rights of occupiers of premises. Mr Bessell had a long history as an organiser, no other breaches had occurred, and he was of general good character. The Commission should accept, as did Vasta J, that the contravening conduct was aberrant and unlikely to reoccur.
The CEPU submitted that in all the circumstances the Commission should be satisfied that suspension of Mr Bessell’s permit would be harsh or unreasonable, and that the exception in s 510(2) was therefore engaged.
The ABCC contended that it would not be harsh or unreasonable to suspend Mr Bessell’s permit and that the Commission was therefore required to suspend or revoke the permit. It contended that the appropriate course was to suspend his permit for the minimum three month period set by the Act.
The ABCC accepted that in a proceeding under s 510 the Commission must be guided by protective and corrective rather than penal considerations, but that this did not place a gloss on the relevant test, which is whether suspending or revoking would be harsh or unreasonable. It submitted that a suspension of Mr Bessell’s permit would not be harsh or unreasonable for a number of reasons.
First, Mr Bessell’s contravening conduct was serious as he had deliberately and repeatedly refused to comply with reasonable requests from site officials and the police that he leave the premises. Vasta J had noted that to disregard site requirements on a building site was extremely dangerous, and that from this one must conclude that the judge had found that Mr Bessell had created a substantial risk to health and safety. His Honour had also stated that ignoring requests from the police was behaviour that must be deterred in the strongest terms. Mr Bessell’s conduct was sufficiently serious for the Court to impose a penalty of $12,000, which was 95% of the maximum penalty for an individual.
Secondly, in the proceeding before Vasta J, Mr Bessell had contested the allegations against him and sought to downplay his refusal to comply with site safety requirements by claiming that his conduct was necessary in order to respond to imminent safety risks. Mr Bessell had not proffered evidence of remorse to the Court.
Thirdly, although the lack of any ‘priors’ was a matter standing in Mr Bessell’s favour, it also showed that he was an experienced union official who should have known better. As to the further training undertaken by Mr Bessell, this had occurred only days before the CEPU filed its submissions in these proceedings, and in any event Mr Bessell’s previous training had not prevented the contravening conduct, and it was reasonable to doubt whether the further training would prevent further contraventions.
Fourthly, the ABCC submitted that there was no evidence that Mr Bessell had paid the legal costs incurred in the Court proceedings or had personally paid the penalties imposed on him by the Court, and that an inference arises that he had not done so and had therefore not suffered any financial consequence from his contravening conduct, which cast doubt on whether the penalties had had a deterrent effect on Mr Bessell.
The ABCC further contended that the fact that some inconvenience may be caused to the CEPU in representing the interests of its members if Mr Bessell’s permit were to be suspended is not a matter that should be given serious weight, as this is the ordinary and inevitable effect of s 510 of the Act. Further, there was no suggestion that Mr Bessell’s employment with the CEPU would be terminated if his permit were suspended, or that he would lose income or suffer any other adverse consequences. Mr Bessell would be able to continue exercising the rights and powers of a permit holder once the suspension period had expired.
Consideration
Section 499 of the Act states that a permit holder must not exercise a State or Territory ‘OHS right’ unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises. Section 500 states that a permit holder must not intentionally hinder or obstruct any person or otherwise act in an improper manner when exercising entry rights under Part 3-4. The Court found that Mr Bessell and the CEPU contravened these provisions. This is a serious matter. The Court’s imposition on Mr Bessell of a pecuniary penalty under the Act in relation to a breach of Part 3-4 engages s 510(1)(d), with the consequence that the Commission must revoke or suspend his permit, unless, pursuant to s 510(2), the Commission is satisfied that it would be harsh or unreasonable to do so.
In his witness statement, Mr Bessell said that he had learnt a lot from the contravention proceedings before Vasta J and that he had engaged in significant personal reflection as a result. Mr Bessell said that, although at the time he thought that he was acting in the best interests of workers, all he achieved was to have the Court impose significant fines on both him and the union. He said that on 3 July 2018, he should have been more patient and tried to negotiate with RGB. He accepted that the directions given to him by RGB were lawful and that he was required to follow them irrespective of his personal views about safety concerns on site. Mr Bessell said that he understands that he should have left the site when directed to do so by the police. He said that he intends to comply fully with all safety requirements imposed by builders and realises that if he expects the protection of the law as a permit holder, he must comply with his own obligations. I find that Mr Bessell understands that he contravened the Act, recognises that this was unacceptable, and is resolved not to engage in such conduct again.
Mr Bessell said in his statement that he has suffered a lot of stress since the Court proceedings were commenced against him some two years ago. He was concerned that he might lose his permit and also his job, thereby losing his income and letting down his son. Mr Bessell said that he was ashamed that his actions had brought the union’s name into disrepute and that members’ money was spent on legal fees and penalties, when it could have been put to good use. He said that he was embarrassed that his name has been recorded publicly as a person who has been found to have contravened the Act and that he had always prided himself on being a lawful citizen and of good character. He said that he worried that his colleagues did not look at him as favourably as they once did because of the Court’s judgment.
Mr Bessell also said that on 25 July 2022 he was formally counselled by his branch secretary, Mr Peter Ong, who told him that he ought to have known what his obligations were, and that the union had suffered reputational damage and paid substantial legal fees as a result of his conduct. Mr Ong directed him to comply with his legal obligations as a permit holder and said that any recurrence of this conduct would result in disciplinary action. Mr Bessell said that he had never before in his working life been counselled and that he had found it very confronting, particularly coming from a senior official like Mr Ong. He said that he felt like he had let the union down, and that after his meeting with Mr Ong he was very upset.
I accept Mr Bessell’s statement. I find it to be authentic. It is infused with details of Mr Bessell’s psychological and emotional reaction to the proceedings that were brought against him and the Court’s judgment, and the effect that this has had on him. His statement is clear, credible and also corroborated. Mr Lynch gave evidence that, after the hearing before Vasta J, Mr Bessell was visibly upset, and said to him: ‘I am going to go to jail. I will never do anything like this ever again’; and that following the penalty decision, Mr Bessell said to him: ‘I have really let the union down’.
Mr Bessell’s witness statement candidly describes his inner journey. It demonstrates that the proceedings and the judgment took a toll on him, and that, even if he may not have personally paid the financial penalty ordered by the Court, he paid an emotional price for his conduct, and has learnt from it. I find that Mr Bessell is sincerely remorseful for his contravening conduct. As I said in another decision (in which no contrition was shown), a person who has convincingly expressed remorse for a contravention can more persuasively say that there will be no recurrence. Mr Bessell’s remorse weighs in favour of a conclusion that he will not commit further contraventions. So too does the fact that Mr Bessell has had an otherwise unblemished career as a union official. As the Court noted, his contravention was an aberration.
In my view, Mr Bessell will not contravene Part 3-4 of the Act again. In these circumstances it would be unreasonable to suspend his permit. It would not have any protective or corrective effect. No correction or protection is needed in this case. In my opinion, to suspend Mr Bessell’s permit in such circumstances would effectively be punitive. As noted earlier, punishment forms no part of the role that the Commission is required to perform under s 510 of the Act.
The ABCC questioned whether Mr Bessell could have insight into his conduct given that he contested the contravention proceeding that was brought against him and did not make any statement of contrition to the Court. But I do not consider that this diminishes the genuineness of his remorse or his acceptance of the fact that he contravened the Act. It is in the nature of the exercise of judicial power that sometimes ‘an outcome has a clarity in hindsight that it may not have in prospect’ (see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2015] FCAFC 97 at [19], cited by Gostencnik DP in Re Simpson[2022] FWC 2074 at [14]).
Finally, I consider that the CEPU has responded to the judgment of the Court in an appropriate and responsible way, one that is consistent with the Court’s observation about the union’s good corporate character (at [25]). This is a further consideration that makes improbable the prospect that Mr Bessell would contravene the Act again.
I am satisfied that the suspension or revocation of Mr Bessell’s permit would be unreasonable in the circumstances. Pursuant to s 510(2), I am therefore not required to suspend or revoke his permit.
DEPUTY PRESIDENT
Determined on the papers
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