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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Fair Work Commission v Darren Roberts

Details

AGLC: Fair Work Commission v Darren Roberts [2016] FWC 4052
Case: [2016] FWC 4052
Decision Date: 29 JUNE 2016

CaseChat Overview and Summary

The matter before the Fair Work Commission was an action brought by the Commission itself, without the need for a complaint, in response to findings of contravention by Darren Roberts. Roberts had been found to have contravened certain provisions of the Fair Work Act. The central dispute was whether the penalty imposed on Roberts, which included the suspension of his entry permit, was harsh or unreasonable. The case was heard and determined by the Fair Work Commission.

The primary legal issue the Commission had to decide was whether the penalty imposed on Roberts was disproportionate or unjust in the circumstances. This required an assessment of the nature and seriousness of the contraventions, the context in which they occurred, and the overall fairness of the penalty in light of these factors. The Commission also needed to consider whether the penalty served the purposes of the Fair Work Act, including deterrence and maintaining public confidence in the workplace relations system.

The Commission carefully considered the evidence and arguments presented by Roberts and the relevant provisions of the Fair Work Act. It found that the contraventions were serious and had a significant impact on the employees involved. However, the Commission also noted that Roberts had taken steps to remedy the situation and had expressed remorse. Ultimately, the Commission determined that while the penalty was severe, it was not harsh or unreasonable in the context of the contraventions. The decision was based on a detailed analysis of the factors relevant to the assessment of penalties under the Act. The Commission upheld the penalty imposed, including the suspension of Roberts' entry permit.

The final orders of the Commission confirmed the penalty imposed on Roberts, including the suspension of his entry permit. The Commission's decision provided clarity on the assessment of penalties in cases of serious contraventions under the Fair Work Act, emphasising the importance of proportionality and context in such determinations.

Orders