Application of the Commission’s own motion pursuant to s.510 of the Act in response to orders to pay pecuniary penalties in relation to contraventions of Part 3–4 of the Act – whether suspension harsh or unreasonable in the circumstances – whether to suspend or revoke entry permit – suspension and ban for six months.

This decision concerns whether I should revoke or suspend Mr Stephen Long’s entry permit pursuant to s.510 of the Fair Work Act 2009 (Cth) (Act). The Fair Work Commission (Commission) commenced this matter on its own initiative.

Background

Mr Long is an official of the Construction, Forestry, Mining and Energy Union (CFMEU) and is currently employed by the CFMEU as an Organiser. Mr Long is also currently the holder of an entry permit issued by the Commission pursuant to s.512 of the Act. Mr Long was issued with an entry permit on 20 May 2015 which expires on 20 May 2018 (RE2015/663).

In judgments delivered on 20 November 2015[1] and 22 April 2016[2], Justice White of the Federal Court of Australia declared, inter alia, that:

·Mr Long contravened s.500 of the Act on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Part 3–4 of the Act, by failing to provide a notice of entry as required by s.487 of the Act in order to enter the Adelaide Oval site, and by remaining on the site and holding discussions with workers;[3]

·By reason of s.793 of the Act, the CFMEU contravened s.500 of the Act by the conduct of Mr Long constituting his contravention of s.500 of the Act on 30 October 2013;[4]

·Mr Long contravened s.500 of the Act on 31 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Part 3–4 of the Act at the Adelaide Oval site, by failing to provide a notice of entry as required by s.487 of the Act, by remaining on the site and holding discussions with workers on the site;[5] and

·By reason of s.793 of the Act, the CFMEU contravened s.500 of the Act by the conduct of Mr Long constituting this contravention of s.500 of the Act on 31 October 2013.[6]

Justice White ordered that Mr Long pay total pecuniary penalties of $4,400 ($2,200 for each contravention of s.500 of the Act) and the CFMEU pay total pecuniary penalties of $50,000 ($25,000 for each contravention of s.500 of the Act) in relation to the contraventions by Mr Long of s.500 of the Act on 30 and 31 October 2013.[7]

The Full Court of the Federal Court (North, Besanko and Flick JJ) on 17 May 2017 dismissed appeals by Mr Long and the CFMEU against the earlier decisions by Justice…

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 Stephen Long

Details

AGLC: Fair Work Commission v Stephen Long [2017] FWC 6867
Case: [2017] FWC 6867
Decision Date: 19 DECEMBER 2017

CaseChat Overview and Summary

The case of Fair Work Commission v Stephen Long involved the Fair Work Commission acting on its own motion pursuant to section 510 of the Fair Work Act 2009. The dispute centred on orders to pay pecuniary penalties in relation to contraventions of Part 3–4 of the Act. The primary concern was whether the suspension of Stephen Long's entry permit was harsh or unreasonable given the circumstances. The Commission was also tasked with deciding whether to suspend or revoke Long's entry permit.

The legal issues before the Court revolved around the interpretation and application of section 510 of the Fair Work Act 2009, which allows the Commission to suspend or cancel an entry permit of a non-citizen who has been found to have contravened workplace laws. The Court had to determine if the suspension of Long's entry permit was justified and whether the six-month suspension and ban was a proportionate response to the contraventions identified. The Court also needed to consider whether the entry permit should be revoked entirely.

The Court concluded that the suspension of Long's entry permit was neither harsh nor unreasonable. It found that the six-month suspension and ban was appropriate given the seriousness of the contraventions. The Court emphasised that the penalties were necessary to ensure compliance with workplace laws and to protect the integrity of the Australian workplace. The Court ultimately decided that the six-month suspension and ban was an appropriate measure and did not warrant the complete revocation of Long's entry permit.

Orders