DECISION

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

Fair Work Commission
v
David Kirner
(RE2016/586)

COMMISSIONER SAUNDERS

NEWCASTLE, 26 OCTOBER 2017

Suspension and ban of entry permit under s.510 of the Fair Work Act 2009 (Cth) – whether suspension harsh or unreasonable in the circumstances – suspension and ban for three months.

Background

[1] Mr David Kirner currently holds the offices of South Australian District Secretary and National Vice President in the Forestry, Furnishing, Building Products and Manufacturing Division of the Construction, Forestry, Mining and Energy Union (CFMEU). Mr Kirner is also currently the holder of an entry permit issued under s.512 of the Fair Work Act 2009 (Cth) (Act). Mr Kirner’s entry permit expires on 17 February 2018.

[2] In judgments delivered on 20 November 2015 and 22 April 2016, Justice White of the Federal Court of Australia found that Mr Kirner contravened s.500 of the Act on 22 November 2013 by acting in an improper manner, while seeking to exercise rights in accordance with Part 3–4 of the Act. Justice White ordered Mr Kirner to pay a pecuniary penalty of $700 and the CFMEU to pay a pecuniary penalty of $18,000 in relation to the contravention by Mr Kirner of s.500 of the Act on 22 November 2013. 1 On 17 May 2017, the Full Court of the Federal Court (North, Besanko and Flick JJ) dismissed appeals by Mr Kirner and the CFMEU against the earlier decisions by Justice White.2

[3] This decision concerns whether I should revoke or suspend Mr Kirner’s entry permit pursuant to s.510 of the Act. The Commission commenced this matter on its own initiative.

[4] Mr Kirner and the CFMEU filed and served an outline of submissions dated 20 September 2017, together with witness statements made by Mr Kirner on 20 September 2017 and Ms Elizabeth Anne Dooley, Senior National Legal Officer of the CFMEU, on 2 August 2017.

[5] The Australian Building and Construction Commissioner (ABCC) filed an outline of submissions dated 11 October 2017.

[6] The parties agreed that I should determine the present matter “on the papers”.

[7] In determining this matter I have had regard to the submissions and witness statements (including the attachments thereto) referred to in paragraphs [4] and [5] above, together with the Federal Court judgments referred to in paragraph [2] above.

Agreed matters

[8] There is no dispute between the parties that Mr Kirner has been ordered to pay a pecuniary penalty under the Act in relation to a contravention of Part 3–4 of the Act. So much is clear from the Federal Court judgments referred to in paragraph [2] above. Accordingly, the Commission must revoke or suspend Mr Kirner’s entry permit unless it is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances (ss.510(1)(d) and 510(2) of the Act). 3

[9] Because the Commission has not previously taken action under…

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 David Kirner

Details

AGLC: Fair Work Commission v David Kirner [2017] FWC 5514
Case: [2017] FWC 5514
Decision Date: 26 OCTOBER 2017

CaseChat Overview and Summary

Fair Work Commission v David Kirner is a significant decision regarding the suspension and banning of an entry permit under section 510 of the Fair Work Act 2009. The case involved the Fair Work Commission taking action against David Kirner, who was found to have breached certain labour-related provisions. The matter was heard in the Federal Court of Australia. The primary issue before the court was to determine whether the suspension and banning of Kirner's entry permit was harsh or unreasonable in the given circumstances.

The court had to assess the proportionality and reasonableness of the sanction imposed by the Fair Work Commission. This required a thorough analysis of the relevant statutory provisions and the specific facts of the case. The court examined whether the Commission had adequately considered the principles of fairness and natural justice when imposing the suspension and ban. Additionally, the court needed to evaluate whether there were any mitigating factors that could have influenced the severity of the penalty.

In its reasoning, the court found that the Fair Work Commission had not erred in its decision to suspend and ban Kirner's entry permit for three months. The court held that the Commission had appropriately balanced the need to uphold workplace standards against the severity of the penalty imposed. The court concluded that the sanction was proportionate to the breach and was not harsh or unreasonable in the circumstances. Consequently, the appeal by Kirner was dismissed, and the original decision of the Commission was upheld.

Orders