Director of the Fair Work Building Industry Inspectorate v Vink

[2016] FWC 2512

[2016] FWC 2512

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.510 - Upon referral, revoke or suspend an entry permit

Director, Fair Work Building Industry Inspectorate
v
Mr Scott Vink
(RE2016/408)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 20 APRIL 2016

Right of Entry Permit – s.510 – Mr Scott Vink - contravention under s.510(1)(d) – pecuniary penalty – s.500 - Court judgment - mental health of Permit Holder disclosed – ownership of conduct – prognosis – likelihood of repetition – work stressors - whether suspension or revocation - ban period

[1] On 9 March 2016 correspondence was received by the Fair Work Commission from Hall Payne Lawyers acting for the Construction, Forestry, Mining and Energy Union (“CFMEU”) indicating that Mr Scott Vink, a CFMEU Permit Holder, had a penalty imposed upon him (along with the CFMEU) by the Federal Circuit Court (in Director of the Fair Work Building Industry Inspectorate v Vink & Anor [2016] FCCA 488) for an admitted breach of s.500 of the Fair Work Act 2009 (“the Act”).

[2] On 7 August 2015, Mr Vink was granted renewed Right of Entry Permits subject to a training condition, and a reporting condition in respect of any future contraventions of the Act. This latter condition was imposed for reason that Mr Vink at the time, was the subject of what was then said to be contested proceedings in the Federal Court (“the Court”). That condition was discharged by the correspondence from Hall Payne Lawyers referred to above. The renewed Right of Entry Permits were the Queensland Northern Territory Divisional Branch of the Construction and General Division of the CFMEU [RE2015/765], and the Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland [RE2015/766].

[3] The Director of the Fair Work Building Industry Inspectorate indicated that it sought to lodge submissions pursuant to s.72 of the Fair Work (Building Industry) Act2012 (Cth) (“the BCII Act”) in relation to s.510 of the Act. Irrespective of that legislative provision, the Commission would ordinarily hear from a party with a direct interest in the proceedings (noting that the Fair Work Building and Construction was the applicant in the Federal Court proceedings referred to above - see Vice President Watson in Director of the Fair Work Building Industry Inspectorate v Smart[2015] FWC 3656 at [6] and [8])

[4] That said, having become aware of the imposition of a pecuniary penalty being applied to Mr Vink, the jurisdiction of the Commission under s.510(1)(d) of the Act (see below) has been agitated. Consequently, the Commission is obligated to suspend or revoke Mr Vink’s Right of Entry Permits, and to determine a ban period

[5] Initial directions in this matter sought the filing of submissions and witness statements. However, the parties reached agreement, it appears through the CFMEU’s initiative, that my directions in this regard be vacated and a compacted period for filing submissions only be substituted. Neither party wished to be heard in relation to the matter by way of oral hearing (though an opportunity to be so heard was provided). I accepted this remodelled directions timetable as a consent arrangement.

Legislative provisions

[6] The relevant legislative provisions are as follows:

510 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:

the Permit Holder was found, in proceedings under this Act, to have contravened subsection 503(1) (which deals with misrepresentations about things authorised by this Part);

(b) the Permit Holder has contravened section 504 (which deals with unauthorised use or disclosure of information or documents);

(c) the Information Commissioner has, under paragraph 52(1)(b) of the Privacy Act 1988, found substantiated a complaint relating to action taken by the Permit Holder in relation to information or documents obtained under section 482, 483, 483B, 483C, 483D or 483E;

(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;

(e) a Court, or other person or body, under a State or Territory industrial law:

(i) cancelled or suspended a right of entry for industrial purposes that the Permit Holder had under that law; or

(ii) disqualified the Permit Holder from exercising, or applying for, a right of entry for industrial purposes under that law;

(f) the Permit Holder has, in exercising a right of entry under a State or Territory OHS law, taken action that was not authorised by that law.

(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.

Subdivision E—General rules for suspending entry permits

511 General rules for suspending entry permits

If the FWC suspends an entry permit, the suspension:

(a) must be for a specified period; and

(b) does not prevent the revocation of, or the imposition of conditions on, the entry permit during the suspension period; and

(c) does not alter the time at which the entry permit would otherwise expire.

Pecuniary penalty finding

[7] In the judgment in Director, Fair Work Building Industry Inspectorate v Vink & Anor [2016] FCCA 488, the Court considered the conduct of Mr Vink and the CFMEU, as it occurred on 5 March 2014, in relation to the Pacific Fair Shopping Centre Re-development Project at Broadbeach, Queensland. Mr Vink, the First Respondent (with the CFMEU being the Third Respondent), was found to have breached s.500 of the Act. The Court summarised the facts relating to the conduct in the following terms:

“5. The Pacific Fair Redevelopment Project is located in Broadbeach. That project involves the redevelopment of the Pacific Fair shopping centre. Westfield Design and Construction Pty Ltd is the head contractor for the project. Westfield have subcontracted Frankipile Australia Pty Ltd (“Frankipile”) to carry out piling works on the project.

6. Westfield provided to Frankipile a shed on the project for use by the employees of Frankipile. Those employees could store their personal property and food, and eat their meals, in the shed. On 5 March 2014, the employees of Frankipile were using the shed for those purposes.

7. On that day, the First Respondent entered the project purportedly exercising his right of entry for the purpose of enquiring into a suspected contravention of the WHS Act and in accordance with Part 3-4 of the FW Act.

8. After entering the project, the First Respondent went to the shed. There was a dispute between the First Respondent and a Frankipile employee, Mr Carmody. Mr Carmody was the National Health, Safety Environment and Training Manager for Frankipile. The dispute was about the entitlement of the Frankipile employees to use the shed.

9. During the dispute, the First Respondent removed the personal property and food, including refrigerated food, of the Frankipile employees from the shed. The First Respondent then prevented attempts by Mr Carmody and the Project Engineer employed by Frankipile, Mr Zabawa, to return the personal property to the site shed and the food to the refrigerator. Director, Fair Work Building Industry Inspectorate v Vink & Anor [2016] FCCA 488 Reasons for Judgment: Page 3

10. During the course of the dispute the First Respondent behaved inappropriately by shouting at Mr Carmody and Mr Zabawa and used foul and offensive language directed towards them. He insisted that Mr Carmody get out of the site shed.

11. Following these events, the First Respondent purporting to exercise the right of entry, then fastened a padlock to the door of the shed without the consent or approval of Frankipile or Westfield.

12. When he was locking the shed, the First Respondent again used foul and offensive language directed towards Mr Carmody and acted in an angry and abusive manner towards him. After locking the shed, the First Respondent explained to Mr Carmody that “sheds on the project were only for the use of union members”. The First Respondent then left the shed.”

[8] The Court went on to comment in imposing penalties:

“38. This is a serious offence. There is only one offence alleged. The Respondents suggested that the behaviour could have been much worse. That may be so, but if it had been worse, it would have attracted other breaches of the FW Act rather than the one breach that is alleged in this matter. If there had been violence to people or property, the criminal law would also have played a part in this matter.

39. To my mind, when one is talking about a single breach, the behaviour does not get much worse than the present case. The First Respondent fraudulently entered the shed of the Frankipile employees.

40. There was never any legitimate reason for the First Respondent to enter that shed. The only reason he did so was to intimidate the employees and to reinforce to others at the building site, the notion that non-union membership is not going to be tolerated.

41. It is hard to imagine a more blatant single breach. The need for condign punishment is obvious. The maximum penalty for the First Respondent is $10,200.00 and the maximum penalty for the Third respondent is $51,000.00.

42. I do not think that the fact that the First Respondent has no record of previous breaches of the FW Act is of great consequence. There has been no submission to the effect that this was in any way a maverick act by an overenthusiastic and inexperienced officer of the Third Respondent. Therefore, there is little in this particular circumstance which mitigates the penalty.

43. There is a great need for general deterrence and specific deterrence in this case. It would be apt to describe the behaviour of the First Respondent as “sheer thuggery”. Such thuggery has no place in the Australian workplace. Contraventions of the FW Act that involve such thuggery cannot be tolerated.

44. The Third Respondent does have an unenviable history of breaching the FW Act. It seems to treat being caught conducting such breaches or as the present one simply as occupational hazards in the way in which they conduct their business. There has been no apology for such appalling behaviour.

45. If not for the “plea” that saved a great deal of Court time and illustrated a cooperation with the administration of Justice, and the lack of previous history of breaches by the First Respondent, I would have had no hesitation in imposing the maximum penalties available.

Orders

46. Taking into account all factors that I have numerated in paragraph 26 above, I order that the First Respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of $9,000.00. I order that the Third Respondent pay to the Commonwealth a pecuniary penalty in the sum of $48,000.00. I order that those payments be made within 14 days.”

Director’s submissions in summary

[9] The Director held that I should have regard to the following circumstances:

● Mr Vink’s conduct attracted a penalty representing 88% of the maximum penalty the Court might impose;

● In the Commission’s decision in Director of the Fair Work Building Industry Inspectorate [2015] FWC 4062 (Director of the Fair Work Building Industry Inspectorate v John Perkovic - RE2015/356) (“Perkovic”), the Commission dealt with circumstances in which the Permit Holder was fined $5000 for using profane language when asked to produce an entry permit and entry notice, entering a building site without permission, and verbally abusing a Fair Work Building Industry Inspector. The Permit Holder’s Right of Entry Permit was revoked and ban imposed on gaining a further Right of Entry Permit was set for a period of 19 months. There had previously not been any orders made against the Permit Holder.

[10] The Director contended that the present circumstances were analogous to those in Perkovic.

[11] The Director also pointed out that in an article in the Gold Coast Bulletin on 10 March 2016, Mr Vink was quoted as saying in respect of the judgement against him:

“That judge wasn’t there and there’s always two sides to the story. It’s a political witch-hunt and I’m not concerned about it at all.”

[12] The accuracy of the above quotation and its subject or focus was not challenged in subsequent materials led by the CFMEU.

[13] The Director held that the comments reflected a “complete lack of contrition”.

[14] The Director held that the intimidatory and abusive conduct towards other individuals on the site was conduct was described as being at the serious end of the scale, and warranted revocation of Mr Vink’s Right of Entry Permit and a ban imposed on a further Right of Entry Permit for a period of two years.

CFMEU Submissions in Summary

[15] The CFMEU, amongst other things, held that the circumstances of a contravention will inform the discretion available to the commission under s.510 of the Act, particularly in regard to the likelihood of repetition in the future. A contravention that is “truly unique” in its surrounding circumstances, it was said, is probably less likely to be one that is to be repeated, and where there are “extenuating or extraordinary circumstances” it is less likely to be repeated especially where there has been an effort made to remove the cause of those circumstances.

[16] This submission was put in the context of Mr Vink’s medical condition and the treatment he is receiving in respect of that condition, and for that reason is less likely to repeat his prior conduct.

[17] The medical condition to which the CFMEU was referred was a “Brief Psychological Report” (“the report”) by Dr Clive Jones, a Consulting Psychologist, which accompanied its submissions in this matter. I take the report at its face value and accept that Dr Jones is who he claims to be and holds the professional qualifications he purports to hold. The report indicates that Mr Vink:

● had been seeking psychological treatment with him since 19 August 2014 and has had a total of five treatment sessions since that date;

● at the time of the first appointment Mr Vink had already been prescribed psychopharmacology for anxiety and depression;

● it was “clear that [Mr Vink] had been suffering from a mentally ill state over at least the past few years, prior to seeking psychological treatment with [Dr Jones];

● “Mr Vink had been suffering from a long-term chronic state of mixed anxiety and depression that has included an agitated anger whereby such agitation has resulted in irrational reactions to a broad range of stressors including those stresses faced at work”;

● “the typical outcome of [Mr Vink’s] condition is heightened irrational reactions to stresses that are exacerbated when coupled with anxiety and depression. The behaviour of Mr Fink on March 2014 is clearly symptomatic of this”;

● “Mr Vink […] is committed to owning and addressing any issues of concern regarding his own mental health and associated behaviours. Such motivation and commitment to change is a vital component to a positive prognosis”;

● “Another important component to a positive prognosis is on-going treatment that addresses Mr Vink’s anxiety and depression […]”; and

● “On-going psychopharmacology continues plain important role in Mr Vink’s treatment in order to address symptoms of mixed anxiety\depression and other elements of executive function and control related to emotional reactions and associated behaviours.”

[18] The CFMEU claimed that:

“Mr Vink’s recognition of his problems and his on-going treatment […] are important [and the] Commission should not impose a lengthy period of suspension, revocation or ban in this case especially having regard to Dr Jones’ report.”

[19] Mr Vink’s conduct in March 2014 was said to have been exhibited at a time when Mr Vink was suffering from a mental illness (though this was before such time as Mr Vink had begun his particular course of treatment with Dr Jones). Mr Vink’s conduct at the relevant time – to the extent it was disclosed in full to Dr Jones – was said to be symptomatic of his mental condition.

[20] It was also pressed upon me that Mr Vink’s conduct leading to the contravention was out of the ordinary and out of character in so far as there was no record of Mr Vink having acted in such a way previously in relation to his powers as a Permit Holder over the past seven years. Mr Vink was also subject to the deterrent penalty of the Court, which would make the likelihood of further conduct unlikely as well, it was argued.

[21] Further, it was argued that the period of a ban following a revocation order should be moderated by the fact that Mr Vink would need to satisfy the Commission as to the requirements of s.512 of the Act (that being that he was a fit and proper person to hold a Right of Entry Permit). The period of the ban should not therefore be excessive or - and I think this was the thrust of the argument - applied as a further penalty in relation to Mr Vink’s conduct to that already meted out by the Court.

Consideration

[22] Noting no argument is before me under s.510(2) of the Act and the exception under s.510(3) of the Act is not enlivened, the jurisdiction requires that I take into account and essentially synthesise the various discrete and separately weighted circumstances relevant to determining whether Mr Vink’s Right of Entry Permit should be suspended and revoked, and for what period might a ban.

[23] As set out above, there are a range of matters referred to in the CFMEU submissions and referred to above (such as the deterrent effect of a penalty and the absence other contraventions etc.) which are all to be taken into account in this regard.

[24] The CFMEU also submitted that:

[…] Mr Vink over a period of seven years has never come to attention for anything to do with his exercise of powers as a Permit Holder.

[25] That may be so in relation to Mr Vink’s status as a permit holder. But this is not the first occasion, however, on which Mr Vink has been ordered to pay a penalty for penalty by the Court under an industrial law.

[26] Mr Vink and the CFMEU were ordered to pay $6450 and $550,000 respectively in Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (no. 5) [2012] FCA 1144. The conduct admitted by Mr Vink in 2011 was in breach of s.38 of the BCII Act.

[27] The Court found at [20] in this regard:

“As a result of this combined activity, the CFMEU, CFMEU (Qld), CEPU and Messrs Pearson, Vink, O’Doherty, Hanna, Jarvis, Olsen and Malone each admit:

To engaging in unlawful industrial action within the meaning of s 36 and s 37 of the BCII Act on each of the dates I have listed, thereby separately contravening s 38 of the BCII Act on each of those dates.

That they were “involved in” a contravention of a civil penalty provision within the meaning of s 48(2) of the BCII Act, and are thereby to be treated to have contravened s 38 of the BCII Act by aiding, abetting, counselling and procuring the unlawful industrial action on each of those dates.”

[28] There is nothing before me as to any statement to the Court or for the purposes of these proceedings that Mr Vink was contrite, or remorseful, as to the conduct he eventually conceded (in [2016] FCCA 488).

[29] The comments appearing in the Gold Coast Bulletin and cited above (which went uncontested by the CFMEU as to their source and subject) do not seem to me to indicate contrition or remorse following the Court’s judgment. Mr Vink appears to consider himself to have been a victim, rather than perpetrator of conduct that he admitted, and for which he punished by the judicial process.

[30] The recent media comments as reported appear contradictory to Dr Jones’ claim that, “Mr Vink […] is committed to owing and addressing any issues of concern regarding his mental health and associated behaviours”.

[31] There reasonably appears to be very little commitment of kind Dr Jones’ envisaged in his report in relation to Mr Vink taking ownership of the behaviours associated with his mental illness. It may well be, therefore, that Mr Vink’s pathway towards a positive prognosis in terms of taking ownership of his conduct may not be well established or direct.

[32] Further, it does not appear from Mr Vink’s comments, as reported and which went unchallenged, that the specific and personal deterrent effect of the penalty imposed by the Court has had any positive or curative effect on his perspective on his conduct.

[33] I add that Mr Vink’s conduct as described by the Court was of a serious kind, and that the Court commented “that the behaviour does not get much worse than the present case [and that Mr Vink] fraudulently entered the site […].”

[34] The penalty applied was at the top of the range, as a consequence.

[35] Mr Vink’s conduct as described by the Court, therefore, reasonably might have given cause for contrition, and should be readily recognised as such.

[36] Dr Jones’ report, I add, does not suggest that Mr Vink’s recovery is complete or anticipated in the near future: it proffers no timeframes. Dr Jones’ report indicates, however, that Mr Vink has suffered from his mental illness for some years, and this period of time was said to stretch back to beyond March 2014 and arises from “a long term chronic state” (see immediately below below).

[37] Dr Jones’ report does state that the work environment is a stressor for Mr Vink:

“Very specifically, Mr Vink has been suffering from a long-term chronic state of mixed anxiety and depression that has included an agitated anger whereby such agitation has resulted in irrational reactions to a broad range of stressors; including those stressors faced at work.”

[38] It would appear to me that Mr Vink is presently unsuited to be exposed to the kinds of stressors that ordinarily might be associated with his work, in particular, in relation to his role as a Permit Holder. Mr Vink, on the balance of probability, may not be capable of construing his own conduct in the context of the balance that must be achieved between the rights of a representative organisation and the rights of the occupiers of premises and employers to go about their business – which is the purpose of Part 3-4 of the Act.

[39] Mr Vink’s conduct as described by the Court took place in the context of a purported right of entry for workplace health and safety purposes. The current Right of Entry Permit was misused in an act of deception in order to achieve entry to the construction site for an ulterior purpose. Mr Vink entered the site for the ulterior purpose, which was to demonstrate a particular industrial objective. In the course of his interactions with employees, Mr Vink used language which the Court described as being “foul and offensive”, which was directed at the employees. As I have set out above, the Court found the conduct to have been at the serious end of the spectrum.

[40] The Court, of course, did not have any psychological reports before it as to Mr Vink’s mental condition, and there was no argument in respect of mitigation in this respect, or exposure of such claims to challenge or inquiry. I do not know why this material was not shared with the Court, and no explanation was given in the CFMEU’s submissions in this regard.

[41] That said, I add that I was not presented with any material that demonstrated that the CFMEU had acted or intended to act to alleviate Mr Vink’s stressors by counselling him as to his role and the expected nature of his conduct as a Right of Entry Permit Holder, including the importance of eliminating aggressive and abusive behaviour in workplaces in which he performed his duties. It would appear to me that if the CFMEU had acted to counsel Mr Vink on the importance of civil and lawful interactions in exercising representative responsibilities that may assist to some degree in informing Mr Vink about the expectations of his role, and reducing a stressor affecting Mr Vink’s behaviour. This may assist to some measure in Mr Vink achieving the balance of rights required under the Part. I say as much given that Dr Jones’ report indicates that Mr Vink’s “irrational reactions” arise from workplace stressors as well as from other sources in the social environment.

[42] Having considered all the circumstances as they are, I have no confidence on the materials before me that Mr Vink can in reasonable course undertake the important statutory role that requires him to assist in achieving the necessary balance between the rights associated with the CFMEU’s representational role and the rights of occupiers or business premises and employers. There is a risk that Mr Vink will repeat his conduct as described by the Court, or else continue to act in like ways in the future, at least until such time as he has taken ownership of his prior behaviour and his long term chronic mental health condition has demonstrably improved. This finding is a factor influencing my discretion in relation to whether to suspend or revoke Mr Vink’s Right of Entry Permits, which is the matter to which I will turn below.

[43] I add to these matters that I have also taken into account, further, that Mr Vink has undergone Right of Entry training by way of the CFMEU Approved Right of Entry Training Course on 11 May 2015. This was not made out in the CFMEU submissions now before me, but I was advised on this fact in prior proceedings (see my decision in [2015] FWC 5247).

[44] Mr Vink’s recent comments to the media, however, do not reflect well on the level of understanding that he is assumed to have obtained from such training. I add that no information was put to me in relation to Mr Vink’s mental illness in the course of his application under s.512 of the Act for a right of entry permit in 2015, for the purposes of s.513(1)(g) of the Act.

Revocation or suspension

[45] I make some comments further below in relation to ss.510(4)-510(6) of the Act.

[46] Section 510(1) of the Act vests the Commission with a discretion to determine whether in the circumstances before it, a Right of Entry Permit should be revoked or suspended. Some care is required in considering the option of revocation of a permit. For example, there may be unduly damaging consequences and wider ramifications which might be made out in the evidence where an organisation is required to later reapply for a Right of Entry Permit (as opposed to suspension). There are no concerns of this type put before me in the current case. Further, s.510(2) is not pressed by the CFMEU, however I do note that the discretion must be exercised in the context of the circumstances as they are, and this includes consideration of Mr Vink’s mental health, along with other matters.

[47] Yet having said as much, Mr Vink’s conduct - even when balanced by the mitigating considerations pressed by the CFMEU - gives cause for the revocation of Mr Vink’s Right of Entry Permit. His conduct was of a particularly uncivil kind, as the Court has set out and was found to be “serious” in nature. The capacity to maintain civility is an important attribute in relation to achieving the necessary balance between representational rights and the rights of occupiers of premises and employers under the Part.

[48] Whether the conduct the Court commented upon arose from Mr Vink’s own independent volition as a responsible adult or as a consequence of a mental condition (which neither he nor the CFMEU disclosed to the Court), Mr Vink should have his Right of Entry Permit revoked. Subject to the ban period to be determined, Mr Vink should not be granted a new Right of Entry Permit until such time as he can satisfy the Commission that he is a fit and proper person to hold such a permit and to exercise the important powers attached thereto in a responsible and clear minded manner. This is not an instance in which suspension is warranted, which allows Mr Vink to resume his responsibilities without re-presenting to the Commission under s.512 of the Act.

The ban period

[49] Section 510(5) of the Act provides that if the Commission takes action under s.510(1) of the Act, it is obligated to also ban any further Right of Entry Permit to the Permit Holder for a specified period of time (“the ban period”).

[50] The circumstances relating to the suspension period and the ban period are set out at s.510(4), s.510(5) and s.510(6) of the Act.

[51] Mr Vink’s circumstances are specific to himself and do not attract an easy comparison with other cases. This is largely because the CFMEU has presented materials reflecting on Mr Vink’s state of mental health, at the time of the offending conduct and subsequently. As in most cases, decision relating to suspension/revocation and ban periods turn on their own facts.

[52] In determining the ban period, I have had regard to the CFMEU’s submissions, including the fact that this is the first occasion on which the Commission has dealt with an application under s.510 of the Act relevant to Mr Vink, and that Mr Vink has not come to the Commission’s attention in relation to a contravention of a right of entry permit previously – though he has had a pecuniary penalty imposed upon for a contravention of an industrial law (see above).

[53] In determining the period of the ban I have also taken into consideration the circumstances as presented to me and as included in the CFMEU submissions, including the report on Mr Vink’s mental health.

[54] As I have indicated above, there is no organisational impact on the CFMEU to which I am referred in relation to the ban period that I must determine, and this is the first occasion on which the Commission has taken action against Mr Vink under this section of the Act. Equally, the ban period must not be unreasonably long. I also take into account of the fact that revocation of a permit brings with it as a matter of automaticity a requirement for Mr Vink to be subject to an application under s.512 of the Act, and arguably for that reason the ban period should not be for a lengthy period at all.

[55] However, I am concerned however, that Mr Vink has not demonstrated any appreciation of the circumstances of his conduct nor taken ownership thereof, or understood its serious nature. Further, I have no confidence in all the circumstances that Mr Vink is able to responsibly and with clarity of mind exercise the important rights of a Right of Entry Permit Holder who can assist in achieving the objects of the Part – to which I have referred above - for a considerable period of time.

[56] I consider that a ban period of two years should apply. Such a ban period is not intended to punish Mr Vink. Rather, it is a period of time which would assist in the general legislative goal of ensuring that a balance is achieved between the rights of a representative organisation and the rights of the occupiers of premises and employers to go about their business – which is the purpose of Part 3-4 of the Act.

[57] In the full context of this matter which I have set out above, I consider that the effective removal of Mr Vink’s permit rights for the ban period of two year’s duration (subject beyond this to re-application under s.512 of the Act) will assist in ensuring the object of the Part - to achieve the necessary balance between sometimes conflicting and contested rights of representative organisations and occupiers of business premises and employers - would more likely to be achieved. A ban period of the duration I have determined will incidentally have the effect of enabling Mr Vink to reflect genuinely on the circumstances of his conduct and take ownership of the same, give him a further opportunity to take the judgment of the Court into full account in the context of his own admitted conduct, and to return to sound mental health.

[58] The ban period – as has the revocation decision – has been exercised without regard to the publicity that has attended the Court’s judgment. Such publicity can affect the exercise of discretion by creating a “climate of expectation”, and should be ignored.

[59] Further, I acknowledge that the ban period is a longer period than has been determined previously. But there have been relatively few decisions previously of this kind to date, and arguments on relativity may be misleading for this, and other reasons. In any event, I consider the ban period as determined to be applicable in the circumstances of the matter before me.

Conclusion

[60] As I have found above, Mr Vink’s right of entry permits both in [RE2015/765], for the Construction, Forestry, Mining and Energy Union, and [RE2015/766] for the Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland, are revoked and must be returned to the Fair Work Commission promptly.

[61] In the circumstances of this case, I consider that the ban period should run until 20 April 2018. An order in PR579324 giving effect to this decision is to be issued along with this decision.

SENIOR DEPUTY PRESIDENT

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