Fair Work Commission v Darren Roberts

[2016] FWC 4052

[2016] FWC 4052

FAIR WORK COMMISSION

DECISION

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

Fair Work Commission
v
Darren Roberts
(RE2016/591)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 29 JUNE 2016

Section 510 action of the Commission’s own motion in response to contravention findings – harsh or unreasonable – suspension of entry permit.

[1] On 2 May 2016 the Fair Work Commission (FWC) initiated consideration, of its own motion, about whether the entry permit held by Mr Darren Roberts should be revoked or suspended pursuant to s.510 of the Fair Work Act 2009 (the FW Act). This consideration followed two Federal Court of Australia decisions (the Court decisions). The first of these decisions 1 determined findings of contraventions on the part of Mr Roberts in 2013. The second of these decisions,2 (the penalty decision) made Orders with respect to penalties associated with those findings of contraventions.

[2] In both decisions, the Court considered and made findings relative to the actions of a number of Construction, Forestry, Mining and Energy Union (CFMEU) officials. While the FWC then initiated actions against each of the officials in respect of whom the Court made findings, the majority of these proceedings have been deferred pending the determination of appeals lodged by certain of these permit holders. At least one of these proceedings has not been pursued because that person’s permit had, in the meantime, expired.

[3] The application relative to Mr Roberts was listed for hearing in Perth at the request of Mr Roberts, on 2 June 2016. On 5 May 2016 the Director of the Fair Work Building Industry Inspectorate (the Director) gave notice of his intention to make submissions in this matter pursuant to s.72 of the Fair Work (Building Industry) Act 2012. Directions relative to the provision of submissions and witness statements were issued on 13 May 2016. The appeals, by various of the other persons identified in the Court decisions were subsequently lodged. Mr Roberts did not appeal the Court decisions. On 23 May 2016 the Construction, Forestry, Mining and Energy Union sought an adjournment of the application with respect to Mr Roberts pending determination of the appeals made by the various other permit holders whose circumstances were argued to be similar, notwithstanding that Mr Roberts had not appealed the Court decisions. That adjournment request was refused.

[4] In the hearing on 2 June 2016 Mr Roberts was represented by Mr Reitano, of counsel and the Director, by Mr Kelleher, of counsel. In both cases permission was granted pursuant to s.596(2) of the FW Act.

[5] Before summarising the submissions and the evidence put to me in this matter, I have recited Justice White’s summary of the matters:

“1. The Director of the Fair Work Building Industry Inspectorate (the Director) alleges contraventions by the Construction, Forestry, Mining and Energy Union (the CFMEU) and its officials of provisions in the Fair Work Act 2009 (Cth) (the FW Act) at various Lend Lease Building Contractors Pty Ltd (Lend Lease) building sites in Adelaide in October and November 2013. The Director seeks declarations as to the contraventions and the imposition of penalties.

2. In the main, the Director alleges that officials of the CFMEU acted in an improper manner, in contravention of s 500 of the FW Act, while exercising, or seeking to exercise, rights of entry on the building sites. However, in relation to three officials the Director also alleges contraventions of s 348 of the FW Act and, in relation to two, contraventions of s 346 of the FW Act. Those provisions proscribe adverse action and coercive conduct of defined kinds. In relation to one official the Director alleges a contravention of s 499 of the FW Act.

3. Some of the CFMEU officials are alleged to have contravened the FW Act on more than one occasion, and two (Mr Gava and Mr Beattie) at more than one building site.

4. These reasons contain the Court’s findings with respect to the alleged contraventions. Consideration of the penalties to be imposed and of other consequential orders in respect to those contraventions found to be established has been deferred to a separate hearing.

5. Some of the officials admitted the contraventions alleged against them and the CFMEU admitted that it too had contravened the FW Act by the admitted conduct of those officials. Consideration of the orders to be made in respect of the admitted contraventions has been adjourned pending the determination of the remaining matters.” 3

[6] His Honour noted the matters of common ground in the following terms:

“19. Each individual respondent admitted that he had entered the building sites alleged in his case on the day or days alleged by the Director, although some did not admit the Director’s allegations concerning the time at which the entry was made or its duration.

20. Each individual respondent held, at the time of the entry, a permit issued by the FWC pursuant to s 512. With one exception, each individual respondent acknowledged that he had not, before entering the relevant site, given its occupier any entry notice, let alone a notice which complied with s 518 of the FW Act. The exception is the seventh respondent (Mr McDermott) who, on 13 November 2013, provided an entry notice under the Work Health and Safety Act 2012 (SA) (the WHS Act) in respect of the Adelaide Oval site.

21. The FWC had not issued an exemption certificate to any of the individual respondents.

22. Each of the individual respondents, other than Mr Roberts and Mr Kirner, admitted that he was at the time of his entry employed by the CFMEU. Mr Roberts and Mr Kirner denied that they were employees but accepted that they were officers of the CFMEU at relevant times.

23. The CFMEU admitted that each individual respondent was acting at the relevant time within the scope of his actual or apparent authority and that, if the conduct of an individual respondent was in contravention of the FW Act, then s 793(1) had the effect that it was also to be taken to have contravened the provision in question.

24. Given the CFMEU’s acceptance of its liability under s 793 in respect of any contravention by an individual respondent which was found to be established, the Director did not press claims which he had made in the alternative to the effect that the CFMEU should also be found liable as an accessory pursuant to s 550 of the FW Act.

25. None of the individual respondents gave evidence and none adduced any other evidence (other than by crossexamination of the Director’s witnesses).” 4

[7] His Honour’s findings relative to Mr Roberts are set out in the following terms:

“177. On 30 October 2013, six CFMEU officials entered the Adelaide Oval site. They were the seventh respondent (Mr McDermott), the eighth respondent (Mr Long), the ninth respondent (Mr Harrison), the tenth respondent (Mr Roberts), the eleventh respondent (Mr Stephenson) and the twelfth respondent (Mr Kirner). None of these officials had given forewarning of their intention to visit the site that day, let alone notice of entry pursuant to s 487. This was unusual because, before 30 October 2013, CFMEU officials had always provided notices of entry at least 24 hours in advance of their proposed visits.

178. The Director alleges that each of the respondents was exercising, or seeking to exercise, the s 484 right and that, in doing so, each acted in an improper manner.

179. The Director led evidence from two witnesses as to the events on 30 October. These were Mr Ising, the Site Operations Manager and Mr Jackson, a Site Manager. Both are Lend Lease employees.

180. As with the other Lend Lease witnesses, I considered Mr Ising and Mr Jackson to give honest and credible evidence. I regard their evidence as a reliable basis for the findings of fact which follow.

181. Mr Ising saw the CFMEU officials enter through Gate 6 and go to the site office. He recognised Mr McDermott, Mr Roberts, Mr Stephenson and Mr Kirner as they had attended previously. All the officials were wearing clothing and hard hats with CFMEU logos and insignia. Each of the officials completed the signin register (but none provided a contact telephone number).

182. Mr Ising approached the group and spoke to them outside the site office. Mr Long and Mr Harrison then introduced themselves to him. Mr Long was from Melbourne and Mr Harrison from Canberra. Mr Ising then had a conversation with Mr McDermott to the following effect:

Mr Ising: What is the purpose of this visit?
Mr McDermott: We are taking a look around your site.
Mr Ising: Neither you or any of the other visitors have an entry notice.

183. While Mr Ising was having this conversation with Mr McDermott, the other officials were standing in a group nearby within “a couple of metres”. I am satisfied that each heard the conversation between Mr Ising and Mr McDermott as each immediately started walking away from Mr Ising and toward the eastern stand. I infer that they were responding to Mr Ising’s statement by this conduct.

184. Mr Ising followed the officials. He observed them speaking briefly to workers as they walked along. Mr Kirner told Mr Ising “I want to catch up with the seating contractor”. This was Sebel.

185. On the eastern stand level one concourse, some of the CFMEU officials spoke to some workers. Mr McDermott and possibly some of the other officials said to the workers words to the effect of “there’s going to be a meeting at 9.30”.

186. The CFMEU officials then split in to smaller groups. Mr McDermott and Mr Long walked to the plaza level and transport corridor. Mr Jackson followed them. There were a number of workers in these areas and Mr McDermott and Mr Long stopped to speak briefly to several. Mr Roberts went to the basement. Mr Ising located him there and began to accompany him. The remaining officials were unescorted and the evidence did not disclose their movements.

187. In the basement Mr Ising had a conversation with Mr Roberts to the following effect:

Mr Ising: What is the purpose of this visit?
Mr Roberts: This is the way of the world until your managers talk with our managers.

188. Mr Ising continued to walk near to Mr Roberts and observed him speak briefly with a number of workers.

189. Workers began gathering for a meeting with the CFMEU officials outside the basement lunchrooms. The meeting commenced at approximately 9:40 am, by which time the other officials had also arrived at the lunchroom.

190. On 30 October 2013, there were approximately 500-600 workers on site, and of these, 100-150 attended the meeting in the basement lunchroom area. Some of these, 6 to 8, were employees of Lend Lease and some were employees of contractors carrying out work on the site. The meeting continued until about 10:00 am.

191. Mr Roberts and Mr McDermott then approached Mr Ising and Mr Jackson. The other officials were nearby as they spoke. Mr Roberts made a statement to the following effect to Mr Jackson and Mr Ising:

The workers have raised some issues relating to dust on site, water coolers and toilet locations. You’ve got two hours to address these issues. A further site meeting will be held at 12.30 on site. We’re remaining on site until then.

Neither Mr McDermott nor Mr Roberts gave any further details of these issues and did not state what they wanted done concerning them.

192. While the CFMEU officials were waiting for the 12:30 meeting, they stayed in the area near to the lunchroom or walked around the surrounding area. At one stage while the officials and Mr Ising and Mr Jackson were standing in a group, Mr Roberts said, in relation to not having provided notices of entry, “this is the new way of the world”. He also described rights of entry as a “farce”.

193. Mr Ising made arrangements for additional water coolers and toilets to be brought onto the site. He said, and I accept, that he believed at the time that Lend Lease had more than enough water coolers and toilets for the number of workers on the site but that he made the arrangements in order to avoid providing a reason for a confrontation.

194. At about 12:10 pm, Mr McDermott telephoned Mr Ising, and they had a conversation to the following effect:

Mr McDermott: We want to catch up with you before the 12.30 meeting regarding the items that Darren [Roberts] raised with you.
Mr Ising: I’ll meet you on the eastern concourse level 1.

195. Mr Ising went straight to the eastern concourse and spoke to Mr Roberts:

Mr Ising: Where is Mick [McDermott]?
Mr Roberts: I don’t know.
Mr Ising: Mick called me to catch up prior to the meeting. I’ll speak to all of you together. I’m not going to tell one bloke a story and then have to tell the next bloke the same story.

196. What then occurred was described by Mr Ising as follows:

[48] Mr Roberts then became quite aggressive and acted threateningly towards me. He was almost screaming at me and was being loud and obnoxious. He was putting his face right up close to mine. I felt threatened by how loud and close he was.
[49] While he was doing this, he kept repeating words to the effect of “You don't care about workers.”
[50] At one point, I said to him words to the effect of “Calm down, I want to have a civil conversation”, but Mr Roberts continued the behaviour.
[51] I then said to Mr Roberts words to the effect of “The only place this conversation is going is down a bullying and harassment line.”
[52] Mr Roberts then moved about ten metres away from me and then said “I just want to smash someone right now.”
[53] Simon [Jackson] and some construction workers were within two to fíve metres of me during my conversation with Mr Roberts.

197. Mr Roberts admitted in the Defence that Mr Ising may have perceived him as being aggressive and that Mr Ising had told him to “calm down” or words to similar effect.

198. Mr McDermott and Mr Long arrived on the concourse at about 12:20 pm. Mr Ising then spoke to Mr McDermott, Mr Long and Mr Roberts, saying words to the following effect:

Mr Ising: Lend Lease is prepared to double up drink fountains at the current locations in the east stand and to add a drink fountain in the middle of the east stand level 1. In relation to the dust, currently there’s a street sweeper being used and this gets attended to on an as need basis. Lend Lease is also prepared to add a further two single toilets to level 1 of the east stand. There are already some in the basement.
Mr Roberts: We’ll address the workers at 12.30 and advise.

199. In fact, the meeting between the workers and the CFMEU officials commenced at about 1:00 pm outside the lunchroom. Mr Roberts and Mr McDermott spoke to the workers during the meeting. It concluded at about 1:15 pm and the workers returned to work.

200. All of the officials other than Mr Kirner were at the meeting. After the meeting had concluded, a conversation to the following effect took place:

Mr Ising: Where is our sixth man [referring to Mr Kirner]?
Unidentified official: He’s had to piss off to some other duties.
Mr McDermott: We want you to make the improvements that you suggested earlier.
Mr Roberts: Baulderstone [Lend Lease] must walk around site with blinkers on to not see the issues raised ... Why [are] petrol and diesel forklifts operating in the basement? There’s not enough ventilation down there.
Mr McDermott: These items would not be an issue if there was a walking steward on site. The workers could go to him direct rather than officials dealing with this.
Mr Ising: There is currently a site delegate on site who was previously voted in by the workers.
Mr McDermott: You still need a walking steward. The CFMEU is pushing for walking stewards at all sites. Here, Tonsley and the Convention Centre. H&Y [Hansen Yuncken] have stewards at the new Royal Adelaide Hospital project and the 50 Flinders Street projects.

201. Mr Ising said, and I accept, that Mr Roberts was aggressive, loud and rude when he raised the issue about the forklifts in the basement. Mr Ising said that the issues raised were baseless as the forklifts operated on gas and not on petrol or diesel.

202. Mr Jackson also deposed to the attitude of the CFMEU officials while on site as follows:

While they were on site, the officials were quite aggressive and direct in their approach towards Lend Lease’s management staff. It was not a comfortable environment. The officials were being arrogant, highhanded and dismissive and disregarded instructions given by the Lend Lease management. They did not seem to care that they were on site illegally.

203. As can be seen, this passage of evidence was conclusionary in nature and did not particularise the CMFEU officials who were said to have acted in the ways described. Accordingly, I consider it appropriate to regard this as evidence of Mr Jackson’s perception of the attitude of the CFMEU officials without attributing his description to any particular official.

204. The CFMEU officials left the site at approximately 1:35 pm.

Adelaide Oval site: 30 October 2013 – the contraventions

Mr McDermott, Mr Roberts and Mr Stephenson

205. Each of Mr McDermott, Mr Roberts and Mr Stephenson admit their contraventions of s 500 at the Adelaide Oval on 30 October, and the CFMEU admits its contraventions constituted by their conduct. These respondents admitted that they had entered the Adelaide Oval for the s 484 purpose, that they had done so without providing a notice of entry, and that they had held discussions with workers while on the site.

206. I observe that the admissions of these respondents, particularly those of Mr Roberts, did not extend to all the aspects of their conduct to which I have referred in the findings above. The evidence of Mr Ising and Mr Jackson justifies those findings, even in the absence of formal admissions.” 5

[8] In his penalty decision 6 his Honour addressed the CFMEU record of contraventions of industrial legislation.7 He considered the Director’s submission that the contraventions occurred in the course of a concerted deliberate campaign by the CFMEU and the individual respondents involving the entry of building sites without providing notice is of entry.8 He concluded:

“71 I consider that, subject to one qualification, the evidence strongly supports the Director’s submission. I am satisfied that, in late October 2013, the CFMEU had decided upon a form of concerted action which involved deliberate entry onto Lend Lease building sites without providing a notice of entry. It is not necessary to make findings about the purpose of the campaign but I note that, on several occasions during the subject entries, reference was made, whether expressly or by implication, to the CFMEU wish that Lend Lease employ a permanent CFMEU delegate on each site. Whatever its purpose, I am satisfied that the CFMEU and its officials were engaged in a concerted campaign at Lend Lease sites in Adelaide in deliberate defiance of the requirements in the FW Act regarding the exercise of rights of entry. I agree that the conduct of the respondents on 30 and 31 October 2013 should be assessed in that light. It means that the contraventions are to be regarded as deliberate and pre-meditated. This is a significant matter of aggravation.

72 The qualification relates to the entries at the Adelaide Oval site on 12 and 13 November 2013. These entries seem to be qualitatively different from the entries on 30 and 31 October: they did not involve the attendance of multiple organisers, including organisers from outside South Australia; the conduct on those occasions appears to be different from that occurring on 30 and 31 October 2013; the entries on those dates appear to have been prompted by concerns about the cricket match which was to commence on 13 November 2013, and the entry on 13 November did not involve a contravention of s 500 at all. I am not satisfied that these entries were part of the concerted campaign by the CFMEU as alleged by the Director.” 9

[9] In this regard, his Honour concluded:

“78 That observation is pertinent in the present case because the matter on which the respondents rely presently is the CFMEU’s motive for the campaign. The respondents’ purpose does not warrant the conclusion that everything done in pursuit of that purpose was part of a single course of conduct. The concerted campaign of the CFMEU may explain the conduct of its officials but it does not, at least by itself, provide the requisite inter-relationship between the contraventions to warrant the application of the single course of conduct principle.

79 In my opinion, it is appropriate to approach the matter on the basis discussed by Wells J in Tichy in the passage quoted in Royer, namely, by considering whether the conduct of the respondents comprising two or more contraventions can be properly characterised as constituting two or more incursions into contravening conduct and not incidents in “one multi-faceted course of [unlawful] conduct”. 10

[10] His Honour dealt with Mr Roberts’ conduct in the following terms:

“84 The qualification relates to the declaration proposed with respect to Mr Roberts’ conduct at Adelaide Oval on 30 October 2013. Counsel submitted that the proposed declaration that Mr Roberts had contravened s 500 by, amongst other things, “speaking in an aggressive, loud, rude and threatening manner to the Site Operations Manager” was not supported by the findings in the Liability Judgment and, accordingly, should not be made. I do not accept that submission. Mr Ising, whose evidence I regarded as reliable, said in the evidence quoted at [196] of the Liability Judgment that in the interchange which he had with Mr Roberts at about 12.10 pm on 30 October 2013:

Mr Roberts then became quite aggressive and acted threateningly towards me. He was almost screaming at me and was being loud and obnoxious. He was putting his face right up close to mine. I felt threatened by how loud and close he was … Mr Roberts then moved about 10 m away from me and then said “I just want to smash someone right now”.

Mr Ising also described Mr Roberts’ conduct when raising the issue about the forklifts in the basement, as having been “aggressive, loud and rude”: see the Liability Judgment at [201]. Mr Roberts had admitted in his filed defence that Mr Ising may have perceived him as being aggressive and that he had been told by Mr Ising to “calm down”.

85 These passages provide ample justification for the terms of the declaration with respect to Mr Roberts proposed by the Director.

86 I am satisfied, having regard to the evidence at the trial and the admissions by some respondents that it is appropriate for each declaration proposed by the Director to be made. The declarations will have utility, do concern a matter of public importance and an expression of the Court’s disapproval of the conduct is warranted. I will however, make some modifications to their form.” 11

[11] The Orders made with respect to Mr Roberts were in the following terms:

“180 A penalty is to be imposed on Mr Roberts in respect of his contravention of s 500 of the FW Act at the Adelaide Oval site on 30 October 2013.

181 I have referred earlier to the passages in the Liability Judgment in which the circumstances of Mr Roberts’ contravention are described. It is appropriate however, to mention some features of Mr Roberts’ conduct which differentiate his position from that of his colleagues.

182 On my findings, at [196], Mr Roberts behaved in an aggressive and threatening manner towards Mr Ising in the conversation at about 12.10 pm. Again, at about 1.15 pm, Mr Roberts behaved in an aggressive, loud and rude manner and, on my findings, raised a complaint which was baseless. The penalty to be imposed on Mr Roberts should take account of these aspects of his conduct.

183 Mr Roberts commenced as an organiser with the CFMEU in 2001 and has held an entry permit ever since. It is to his credit that he has no previous record of contraventions of industrial laws. It is also to Mr Roberts’ credit that he made an early admission of his contravention, although I note that that admission did not extend to all aspects of his conduct alleged by the Director.

184 The respondents also submitted, and the Director did not dispute, that Mr Roberts has not been found to have contravened any industrial law since 30 October 2013.

185 The Director submitted that a penalty in the range of $2,000-$4,000 is appropriate in the case of Mr Roberts. The respondents on the other hand contended for a penalty in the range $1,500-$2,500. I consider that the aggressive and threatening behaviour of Mr Roberts should be reflected in a higher penalty than would otherwise have been appropriate. I impose a penalty of $2,200.” 12

Section 510

[12] This section states:

“510 When the FWC must revoke or suspend entry permits

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:

(a) 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.”

[13] It was as a direct consequence of the Court decisions that the Fair Work Commission initiated consideration of Mr Roberts’ entry permit pursuant to this section.

[14] A further background issue of significance in this matter relates to an action I commenced of my own motion on 11 November 2013, pursuant to s.508 of the FW Act. This action followed my concern about the behaviours that were ultimately considered in the Court decisions. The action taken pursuant to s.508 of the FW Act involved a number of decisions and appeals. Nevertheless, it ultimately led to Orders 13 in the following terms:

“1. This Order will apply to any building and construction sites in South Australia controlled by Lend Lease or an associated entity.

2. All entry rights to be exercised by officials of the CFMEU pursuant to Part 3-4 of the Fair Work Act 2009 (the FW Act) are immediately suspended for a period of one year with respect to any building or construction sites in South Australia controlled by Lend Lease Pty Ltd (Lend Lease) or an associated entity, with the exception of the following CFMEU Officials:

a. James O’Connor (South Australian Branch)
b. Mick McDermott (South Australian Branch)
c. David Bolton (South Australian Branch)
d. Mark Gava (South Australian Branch)
e. Darren Roberts (South Australian Branch)
f. Brendan Pitt (National Divisional Office)

3. Leave to apply for the revocation of suspensions made under this Order is granted. As a prerequisite to any such order, the official must provide proof of the completion of a right of entry training programme consistent with the decision in [2014] FWC 3907.

4. Any right of entry permit issued to a CFMEU official for the duration of this Order is restricted by the suspension of entry rights relative to any building or construction site in South Australia controlled by Lend Lease Pty Ltd or an associated entity for the duration of this Order unless the application for that entry permit establishes that the official has undertaken training consistent with the decision in [2014] FWC 3907.

5. Entry rights for the following officials of the CFMEU with respect to any building or construction site in South Australia controlled by Lend Lease or an associated entity will be suspended for a period of six months.

a. Darren Roberts (South Australian Branch)
b. Mark Gava (South Australian Branch)
c. Mick McDermott (South Australian Branch)
d. James O’Connor (South Australian Branch)

6. The suspension of the entry rights of the persons listed in 5. above shall not take effect unless or until any of these persons, within the period ending 12 months from the date of this Order is proved to the satisfaction of the Fair Work Commission, or a Court of competent jurisdiction, to have misused rights under Part 3-4 of the FW Act with respect to any building or construction site in South Australia controlled by Lend Lease or an associated entity.

7. Any CFMEU Official holding a right of entry permit which permits entry to a building or construction site in South Australia controlled by Lend Lease or an associated entity must, before effecting any such entry:

a. provide written advice to Lend Lease with a minimum of 24 hours notice of a proposed entry and not more than 14 days notice. The notice must be in the form of an entry notice consistent with the provisions of the Regulations under the FW Act which specifies:

i. the contravention or basis upon which the entry is sought,
ii. the time at which the entry is sought,
iii. any employers in addition to Lend Lease to whom the entry applies.

b. at the same time, and through the same communication medium, provide a copy of this notice to the Director of Fair Work Building and Construction.

8. For the purposes of this order the requirements at 7. above are not required if a CFMEU Official holding a right of entry permit which permits entry to a building or construction site in South Australia controlled by Lend Lease or an associated entity reaches an agreed position with Lend Lease so as to waive the notice requirements. In this event any CFMEU Official who enters a building or construction site in South Australia controlled by Lend Lease is required to confirm the time and the date and the purpose of that entry to the Director of Fair Work Building and Construction within 24 hours of the agreed entry.

9. Any CFMEU Official holding a right of entry permit which permits entry to a building or construction site in South Australia controlled by Lend Lease or an associated entity must, before entering any such site:

a. have, and wear all personal protective equipment required at that site,
b. present at the site office and wait in that office for an escort to arrive,
c. identify themselves, including providing their full names,
d. sign their names in the visitors book.

10. Any CFMEU Official holding a right of entry permit which permits entry to a building or construction site in South Australia controlled by Lend Lease or an associated entity must, whilst on any such site:

a. Carry with them, and provide if requested to do so by Lend Lease:

i. their right of entry permit,
ii. their notice of entry, and
iii. a valid driver’s license or passport for identification purposes.

b. Be escorted by a nominated Lend Lease escort at all times and comply with the instructions given by that escort.

c. Ensure that any discussions with employees are held during designated breaks or outside of work times.

11. Any CFMEU Official holding a right of entry permit which permits entry to a building or construction site in South Australia controlled by Lend Lease or an associated entity must, before leaving any such site sign the designated visitors book.

12. For the avoidance of any doubt any entry rights exercised pursuant to Part 3-4 of the FW Act must be strictly exercised in accordance with the requirements of that Part of the FW Act.

B. This order will take effect from today and will operate for a period of one year.”

[15] I have referred to these Orders as the s.508 Orders.

[16] In this s.510 matter, Mr Roberts’ evidence was provided by way of an uncontested affidavit. 14 In that affidavit he detailed the positions he has held, and now continues to hold with the CFMEU and the extent to which he has continuously held entry permits since May 2001. He explained the training he has undertaken relative to the exercise of entry rights and the extent to which the events of 30 October 2013 led to the only findings of contraventions relative to the exercise of those entry rights. In terms of his behaviours on that day and the findings in the Court decisions, Mr Roberts’ statement did not address the reasons for his behaviours and he advised that he did not recall various matters which were the subject of findings in the Court decisions. Notwithstanding this, his statement addressed his recollection of the events. Mr Roberts’ evidence was that he complied with the s.508 Orders. He concluded his affidavit with the following statement:

“41. I consider that I have a good understanding of the right of entry regime and the obligations placed upon me.

42. My overall history as a permit holder shows that I understand my obligations as a permit holder and that except for on a single occasion I have complied with these obligations.

43. It is my intention to do my best to comply with all my right of entry obligations in the future.” 15

[17] The submissions on behalf of Mr Roberts went particularly to s.510(2) and to his position that there should be no suspension or any other action because, taking into account the entirety of the relevant circumstances, action of that nature would be harsh and unreasonable. In the alternative, Mr Roberts submitted that any suspension, ban or revocation should not exceed the minimum three month suspension specified in s.510(4) and (6).

[18] I have summarised the combination of circumstances relied upon by Mr Roberts in this matter in the following terms:

● Mr Roberts’ admission of certain of the contraventions addressed in the Court decisions,
● Mr Roberts’ compliance with right of entry obligations before and after the October 2013 events,
● The extent to which the s.508 Orders imposed a suspension of his entry rights which was itself, then suspended,
● The extent to which those s.504 Orders imposed additional obligations on him, with which he complied,
● The extent to which the events addressed in the Court decisions happened nearly three years ago,
● Section 510 should not be construed as a penalty provision but should be regarded as protective in the context of the role of the Court,
● Further suspension, or other action taken under s.510 would be unreasonable in that it would constitute a third “penalty” against Mr Roberts.

[19] The director’s position was that, properly read, s.510 provided for the mandatory revocation or suspension of Mr Roberts’ entry permit in these circumstances because he has been ordered to pay a pecuniary penalty in relation to a contravention of Part 3-4 of the FW Act. The Director contended that the revocation or suspension of Mr Roberts’ entry permit could not be regarded as harsh or unreasonable. The Director asserted that such a revocation or suspension was an “ordinary and inevitable effect of the application of s.510”. 16

[20] In terms of the s.508 Orders, the Director argued that the suspension of those Orders and their limited application to Lend Lease sites in South Australia meant that these Orders had limited relevance to the mandatory application of s.510. The Director relied on a series of FWC decisions 17 which supported both its position that, irrespective of the time since the contraventions occurred and that the nature of Mr Roberts’ conduct, warranted revocation of his entry permit and a ban on the issuing of a new permit for a period of 12 months. The Director asserted that such an action would adequately balance the competing rights in Part 3-4 of the FW Act.

Findings

[21] Some limited assistance in considering s.510 and Mr Roberts’ circumstances can be gained from other decisions of the FWC. In Perkovic v Director of the Fair Work Building Industry Inspectorate 18 a Full Bench confirmed the discretion available to the FWC in the following terms:

“[21] Section 510 of the Act provides that the Commission may exercise discretion in several respects. Firstly, s.510 (1) gives the Commission the option to either revoke or suspend the permit in question. Secondly, s.510 (2) provides that if the Commission is satisfied that revoking or suspending the permit would be ‘harsh or unreasonable in the circumstances’, it need not do so, even if s.510(1)(d) or (f) is satisfied. Finally, s.510(4) and (5) confer discretion upon the Commission regarding the period for which a permit should be revoked or suspended and the ban period, provided they meet the lower limits prescribed in s.510(4) and (6).” 19

[22] The Court decisions, and particularly the penalty decision 20 means that, except in the following circumstances, the FWC must revoke or suspend Mr Roberts’ entry permit pursuant to s.510(1)(d). There is no dispute that s.510(3) has no application to Mr Roberts’ circumstances. Hence, the only matter which could impact on the otherwise mandatory revocation or suspension, goes to whether I am satisfied that such a revocation or suspension would be harsh or unreasonable in Mr Roberts’ circumstances.

[23] As the Director has asserted, various other decisions have addressed some of the circumstances relied upon by Mr Roberts. I have considered each of these factors, but have particularly taken the entirety of the circumstances into account, consistent with Mr Roberts’ submissions in this regard.

[24] I acknowledge that Mr Roberts admitted certain of the contraventions considered in the Court decisions. I have also noted that his evidence to me confirms that he has no recollection of various other matters, which were the subject of contravention findings. I do not consider that his admission, or otherwise, of the actions that represented contraventions can be regarded as a factor going to harshness or unreasonableness. It is conceivable that certain admissions could be considered in this light. For instance, if admissions were made about the extent to which a contravention occurred because of some form of instruction, or pursuant to some form of duress, this may establish harshness or unreasonableness. However, in the circumstances here, where some of the contraventions have been admitted and no substantive reason for Mr Roberts’ behaviour has been articulated, neither harshness nor unreasonableness can be established on the basis of the admissions made.

[25] Mr Roberts has held an entry permit since 2001. The contraventions determined in the Court decisions are the only contraventions over this time. I have considered the extent to which his many years of unblemished exercise of those entry rights means that I should conclude that either revocation or suspension would be harsh or unreasonable. I have concluded that this history and Mr Roberts’ normal patterns of behaviour do not establish that revocation or suspension would be harsh or unreasonable. I accept that these factors may go to the duration of any revocation or suspension but the mandatory nature of the provisions of s.510(1) do not invite avoidance of revocation or suspension on the basis that the contravention is an isolated incident. Had the legislation intended such a consideration, it would have been phrased accordingly. Instead, it must be the case that the pecuniary penalty finding is of such significance that even an isolated incident falls within the mandated actions.

[26] The s.508 Orders established a six month suspension of Mr Roberts’ entry rights with respect to Lend Lease sites in South Australia. That suspension was itself suspended pending any further breaches or contraventions on the part of Mr Roberts. I have not been advised of any such actions and have concluded that this Order was complied with and Mr Roberts has not again breached his entry obligations.

[27] I do not consider that a revocation or suspension pursuant to s.510(1) can in this respect, be regarded as a further penalty so that it represents harshness or unreasonableness. I have later addressed the extent to which I have concluded that this issue is relevant to the nature and the duration of the action to be taken. I accept that actions taken of the FWC’s own motion pursuant to s.508 are rare and exceptional. I also accept that the s.508 Orders related to the same events as those considered in the Court decisions.

[28] However, s.508 states:

“508 FWC may restrict rights if organisation or official has misused rights

(1) The FWC may restrict the rights that are exercisable under this Part by an organisation, or officials of an organisation, if the FWC is satisfied that the organisation, or an official of the organisation, has misused those rights.

Note: Only a Vice President, Deputy President or Full Bench may take action under this subsection (see subsections 612(2) and 615(1)).

(2) The action that the FWC may take under subsection (1) includes the following:

(a) imposing conditions on entry permits;

(b) suspending entry permits;

(c) revoking entry permits;

(d) requiring some or all of the entry permits that might in future be issued in relation to the organisation to be issued subject to specified conditions;

(e) banning, for a specified period, the issue of entry permits in relation to the organisation, either generally or to specified persons;

(f) making any order it considers appropriate.

(3) The FWC may take action under subsection (1):

(a) on its own initiative; or

(b) on application by an inspector.

(4) Without limiting subsection (1), an official misuses rights exercisable under this Part if:

(a) the official exercises those rights repeatedly with the intention or with the effect of hindering, obstructing or otherwise harassing an occupier or employer; or

(b) in exercising a right under Subdivision B of Division 2 of this Part, the official encourages a person to become a member of an organisation and does so in a way that is unduly disruptive:

(i) because the exercise of the right is excessive in the circumstances; or

(ii) for some other reason.”

[29] The Court decisions were of a different character to the considerations which led to my s.508 Orders. The s.508 Orders followed findings of misuse. The Penalty decision 21 followed contravention findings and specifically addressed the nature and the basis of the penalty to be applied to Mr Roberts. Those differences mean that I do not consider that s.508 Orders equate with the pecuniary penalties that were set out in the Penalty decision.22 If the legislation had intended that the mandatory nature of s.510(1) should not apply where orders pursuant to s.508 had been made, I have concluded that it would have been so phrased.

[30] Secondly, the effect of my s.508 Orders was to place Mr Roberts on a form of “good behaviour bond”. If he breached the terms of that Order, the six month suspension would come into effect. This was not the case and it is difficult to see how a revocation or suspension pursuant to s.510 can be regarded as a penalty which applies in addition to the s.508 Orders.

[31] The s.508 Orders also required the CFMEU to notify Fair Work Building and Construction before entry rights were to be exercised. I am not satisfied that this was an obligation imposed on Mr Roberts as distinct from the CFMEU generally, or that it is a factor indicative of unreasonableness or harshness.

[32] The extent to which the events which were the subject of the Court decisions occurred nearly three years ago does not go to factors associated with harshness or unreasonableness. In this respect, I agree with the observations of Gostencnik DP in Perkovic 23 in the following terms:

“…. I accept that the various matters identified are relevant but I do not accept that the mere passage of time and the absence of any further contravention results in there being little purpose in suspending or revoking the Permit for the purposes of safeguarding the rights of occupiers of premises or employers. This would ignore the gravity of the contravention, the particular nature of the contravening conduct, and the fact that Mr Perkovic has not shown, either before the Court or in proceedings before me, any remorse or contrition, nor offered any statement of regret for that conduct. 24

[33] The proposition that s.510 should not be regarded as a punitive provision overlooks the extent to Part 3-4 of the FW Act operates to establish provisions regulating to complex balancing of employer, occupier and union rights. Section 510 must be taken on its plain words such that a normal consequence of a finding of a contravention which warrants a fine, brings with it a mandatory entry permit suspension or revocation. This is consistent with the Explanatory Memorandum which states:

“Clause 510 – When FWA must revoke or suspend entry permits

2030. This clause sets out the circumstances in which FWA must revoke or suspend an entry permit and ban the issue of any future entry permits to the holder. It also sets out minimum periods for which a permit must be suspended or the future issue of permits be banned.

2031. Subclause 510(1) provides that FWA must revoke or suspend all permits held by a permit holder where a matter specified in paragraphs 510(1)(a)-(f) is found to have occurred. However, FWA is not required to suspend or revoke an entry permit under paragraph 510(1)(d) or (f) where the suspension or revocation of the permit would be harsh or unreasonable in the circumstances (see subclause 510(2)). In these circumstances, FWA has a discretion regarding whether or not to revoke or suspend the permits of a permit holder.”

[34] It would thus be inconsistent with s.510, if Mr Roberts’ behaviour before or after the events of 2013 were applied so as to effectively ignore the requirements of this section. Behaviour, consistent with Part 3-4 of the FW Act must be regarded as the expected norm, rather than something which is, in effect, rewarded.

[35] I note that there is nothing before me that establishes that the suspension or revocation of Mr Roberts’ entry permit would create hardship for the CFMEU members or that it would impact on Mr Roberts’ capacity to remain employed.

[36] Notwithstanding my conclusions about each of these individual considerations, I have reviewed the entirety of the circumstance affecting Mr Roberts. I am not satisfied that those circumstances mean that the suspension or revocation of Mr Roberts’ entry permit would be harsh or unreasonable consistent with s.510(2).

[37] In this situation, the Commission has the discretion to suspend or to revive Mr Roberts’ entry permit. A relevant consideration in this respect is that this entry permit expires on 28 November 2016. In reaching a conclusion about the duration of any suspension of revocation I have taken the overall circumstances about which Mr Roberts has made submissions, into account.

[38] Whilst I agree with Deputy President Gostencnik that the Commission should strive for consistent decision making, I also agree that each case will need to be decided according to its particular facts and circumstances. 25

[39] Mr Roberts’ behaviour, addressed in the Court decisions, is not of the degree and repetitive nature of certain other CFMEU officials. His long record without a contravention is, on the one hand, a factor mitigating in favour of a short duration suspension or revocation. On the other hand, I would have expected that someone with that degree of experience would have been able to very clearly recognise the behaviours required of a permit holder.

[40] The overall circumstances involved in this support a suspension at the lower end of the scale. Mr Roberts’ actions are, however, clearly not to be regarded as minimal conduct.

[41] I have concluded that a suspension of four (4) month’s duration is appropriate in these circumstances. Given the relatively short period before Mr Roberts’ entry permit expires, I consider that suspension is the more appropriate course of action rather than revocation.

[42] Section 510(5) requires that, if the Commission takes action pursuant to s.510(1) it must also ban the issue of a further entry permit for at least that period. In this case I consider that the ban period should start from the same date as the suspension and end on that same date.

Conclusion

[43] Pursuant to s.510(1), I have concluded that Mr Roberts’ entry permit should be suspended for a period of four (4) months from the date the order comes into effect. A ban on the issuing of any further entry permit will apply over this same period.

[44] An Order (PR581894) consistent with this decision will be issued.

Appearances:

Mr M Kelleher of counsel, on behalf of the Director of the Fair Work Building Industry Inspectorate.

Mr R Reitano of counsel, instructed by Mr K Sneddon, on behalf of D Roberts.

Hearing details:

2016.

Perth:

June 2.

 1   Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293)

 2 [2016] FCA 413

 3 [2015] FCA 1293, paras 1 - 5

 4 [2015] FCA 1293, paras 19 - 25

 5 [2015] FCA 1293, paras 177 - 206

 6 [2016] FCA 413

 7 [2016] FCA 413, paras 33 - 38

 8 [2016] FCA 413, paras 65 - 79

 9 [2016] FCA 413, paras 71 and 72

 10 [2016] FCA 413, paras 78 and 79

 11 [2016] FCA 413, paras 84 - 86

 12 [2016] FCA 413, paras 180 - 185

 13   PR551967, 13 June 2014

 14   Exhibit R2

 15   Exhibit R2, paras 41 - 43

 16   Exhibit F1, para 12

 17   see Director of the Fair Work Building Industry Inspectorate v Smart[2015] FWC 3656, Director of the Fair Work Building Industry Inspectorate v Perkovic[2015] FWC 4062 and Director of the Fair Work Building Industry Inspectorate v Vink[2015] FWC 2512

 18   [2015] FWCFB 5867

 19   [2015] FWCFB 5867 para [21]

 20 [2016] FCA 413

 21 [2016] FCA 413

 22 [2016] FCA 413

 23   [2015] FWC 4062

 24   [2015] FWC 4062, para [23]

 25   [2015] FWC 4062, para [33]

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