In the matter of the Entry Permit of Antony John Stegic

[2020] FWC 6494

[2020] FWC 6494

FAIR WORK COMMISSION

DECISION

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

In the matter of the Entry Permit of Antony John Stegic
(RE2020/1008)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 3 DECEMBER 2020

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.

Introduction and background

[1] Mr Antony John Stegic is an official of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allies Services Union of Australia (CEPU). Mr Stegic is also currently the holder of an entry permit issued under s 512 of the Fair Work Act2009 (Cth) (Act). Mr Stegic’s entry permit expires on 18 September 2022.

[2] In 1999 Mr Stegic finished his apprenticeship and became a qualified electrician. Mr Stegic was a union delegate from about 2012 until 2013. In May 2016 Mr Stegic commenced employment with the Electrical Trades Union of Australia, New South Wales Branch (ETU) as an Organiser/Recruitment Officer. Mr Stegic is jointly employed by the ETU and the CEPU (together, the Union). In June 2016 Mr Stegic was elected as an Organiser of the Union. In that role Mr Stegic is responsible for members who are employed in construction and contracting within an area known as the ‘North Patch’, which covers the region from the Parramatta River to the Blue Mountains and north west to Castle Hill and Rouse Hill and the lower north shore and northern beaches of Sydney.

[3] As an Organiser of the Union, Mr Stegic’s responsibilities include representing members in industrial disputes and other disputes relating to their employment and recruiting new members. I accept that Mr Stegic’s work as an Organiser is largely done on the work sites at which members or potential members work. Mr Stegic attends workplaces to deal with work health and safety issues and hold discussions with members of the Union. Part of Mr Stegic’s role involves assisting members to resolve their workplace disputes.

[4] Mr Stegic holds a right of entry permit under the Work Health and Safety Act 2011 and a right of entry permit under the Act. Mr Stegic currently uses both of his right of entry permits to access work sites. At times Mr Stegic is invited on to a work site with the consent of the occupier, but the majority of his entries to work sites require the exercise of powers under his right of entry permits.

[5] In a judgment delivered on 6 November 2020, 1 Justice Abraham of the Federal Court of Australia relevantly declared that on 17 October 2016 Mr Stegic, as a permit holder, contravened s 500 of the Act by exercising or seeking to exercise a State or Territory OHS right for the purposes of s 494 of the Act and rights of entry in accordance with Part 3-4 of the Act, and when doing so, or having done so, acted in an improper manner by:

(a) contrary to s 498 of the Act, entering the Sydney Metro Trains Facility Site (SMTF Site) outside working hours;

(b) preventing management from speaking to employees of Nilsen (NSW) Pty Ltd (Nilsen) engaged to undertake electrical work at the SMTF Site (Nilsen Employees) when they were in the lunch shed and the induction room; and

(c) actively opposing the efforts of management to get the Nilsen Employees to return to work.

[6] Justice Abraham ordered Mr Stegic to pay a pecuniary penalty of $2,300 for his contravention of s 500 of the Act.

[7] This decision concerns whether I should revoke or suspend Mr Stegic’s entry permit pursuant to s 510 of the Act. The Commission commenced this matter after the CEPU notified the Commission, on 10 November 2020, of the recent judgment of Justice Abraham.

[8] Mr Stegic and the CEPU filed an outline of submissions dated 1 December 2020, together with an affidavit made by Mr Stegic on 1 December 2020.

[9] The Australian Building and Construction Commissioner was the applicant in the Federal Court proceedings. It notified the Commission that it did not wish to intervene in the present application.

[10] I have determined the present matter “on the papers”. In determining this matter I have had regard to the submissions and affidavit of Mr Stegic referred to in paragraph [8] above, together with the Judgment.

Initial matters

[11] Mr Stegic 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 Judgment. Accordingly, the Commission must revoke or suspend Mr Stegic’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). 2

[12] Because the Commission has not previously taken action under s 510(1) against Mr Stegic, any suspension of his entry permit must be for a period of at least three months (s 510(4) of the Act). Further, if Mr Stegic’s entry permit is suspended or revoked under s 510(1) of the Act, the Commission must also ban the issue of any further entry permit to Mr Stegic for a period of at least three months, commencing when the period of suspension commences (ss 510(5) and (6) of the Act).

Position of the Union and Mr Stegic

[13] Mr Stegic and the Union submit that:

(a) it would be harsh or unreasonable to suspend or revoke Mr Stegic’s entry permit; or

(b) alternatively, the Commission should not impose any suspension, revocation or ban that exceeds the minimum three month suspension.

Mr Stegic’s contravening conduct

[14] Mr Stegic’s conduct which gave rise to his contravention of s 500 of the Act was described in the following parts of the Judgment:

“6. The project known as the North West Rail - Operations, Trains and Systems PPP involved works in relation to the Sydney suburban rail network, at various sites including the SMTF Site. Nilsen (NSW) Pty Ltd (Nilsen) were on the project, and Nilsen Employees were performing the Electrical Work at the SMTF Site. Each of the Nilsen Employees when performing the Electrical Work at the SMTF Site was covered by the Nilsen (NSW) Pty Ltd Construction Enterprise Agreement 2015 - 2018 (the Nilsen Agreement). Stegic, Hopper and Edwards were aware, or ought to have been aware, that the employment of the Nilsen Employees was covered by the Nilsen Agreementwhich was an enterprise agreement which had not reached its nominal expiry date.

7. On 17 and 18 October 2016, the Nilsen Employees who attended for work were required to be present at the SMTF Site for a prestart meeting at 6.45am and to commence work by 7.00am. At about 6.30am on 17 October 2016, Stegic and Hopper entered the SMTF Site. Stegic served a Notice of Entry under s 119 of the WHS Act on the project manager of the SMTF Site. The notice stated inter alia, that “Stegic held a reasonable suspicion that a contravention of s 19 of the Work Health and Safety Act had occurred relating to the bullying and harassment of workers”. At about 6.50am Stegic gestured to the Nilsen Employees who had attended for work that day to enter into the lunch shed on the SMTF Site, and Stegic and Hopper subsequently met with them. The Nilsen Employees did not commence work as required at 7.00am and, instead, stayed in the lunch shed. Thereafter, the project site manager and others approached Stegic and Hopper and requested that Stegic and Hopper produce their entry permits, which they did.

8. Shortly after 7.00am on 17 October 2016, Tony Martin (Martin), a project manager at Nilsen, approached Stegic and Hopper at the lunch shed and Stegic said words to the effect "You know what the issue is. It's your supervisor and the guys are not going back to work"; Stegic threw his hands in the air and spoke in a raised voice and Martin requested that the conversation occur in a separate meeting room. At about 7.15am Martin had a further discussion with Stegic and Hopper during which: Stegic said words to the effect “The guys are not going back to work until Martin Fox is removed from site"; both Stegic and Hopper spoke with a raised voice; and Stegic said words to the effect "It's a health and safety issue" and "The guys are not going back to work". At about 8.00am, Mark Camilleri (Camilleri), a senior project manager at Nilsen, had a discussion with Stegic and Hopper during which: Stegic said words to the effect "Martin Fox is the health and safety risk and he has to be removed before the boys go back to work"; Stegic refused to allow Camilleri to speak directly to the Nilsen Employees in the lunch shed; Camilleri said to Stegic and Hopper words to the effect that "I need to instruct them back to work. This is not an imminent safety risk and we need to instruct our guys to get back to work"; and Stegic said words to the effect "You're not talking with the workers". During that conversation: Stegic stood at the entrance of the lunch shed and blocked the entry into the lunch shed and Camilleri and Martin wished to enter the lunch shed but could not do so as a result. Camilleri had a discussion with Stegic and Hopper during which Camilleri said words to the effect "Come on let us in. We need to instruct the guys to back to work. You know that we need to instruct the guys back to work" and Stegic said words to the effect "We have got to wait until [Edward] arrives".

9. Stegic and Hopper remained in the lunch shed with the Nilsen Employees until about 11.00am, when they moved to the induction room. At about 11.00am Edward entered the SMTF Site and presented his Federal Entry Permit and State Entry Permit upon request. Heather Blake (Blake) a human resources advisor at CPB Contractors Pty Ltd, Camilleri and Martin approached Edward whilst he was standing in the doorway of the induction room and, in the presence of Stegic and Hopper, a discussion took place during which: Camilleri said words to the effect "we need to talk to the guys, we need to instruct the guys back to work"; Edward said words to the effect "Those guys are not going back to work until Martin Fox is removed from site"; Camilleri said words to the effect "We need to talk to the guys, we have to talk to the guys it is our right to talk with the guys. We need to explain to them their rights. We need to explain to them that they have to go back to work and that the action they are taking at the moment is not right"; Edward blocked the doorway which prevented access by Camilleri who wished to enter the room. Blake asked Edward to leave the SMTF Site, but he refused to do so.

10. At about 12.00 noon, the Nilsen Employees moved back to the lunch shed. Camilleri had a discussion with Edward during which Edward agreed that Camilleri could speak to the Nilsen Employees in the lunch shed. Camilleri and Blake addressed the Nilsen Employees in the presence of Stegic, Hopper and Edward. Camilleri said words to the effect "You are in breach of the dispute settlement procedure in the EBA. The action you are taking is unlawful, it's unlawful action. The action you are taking is not right, it is not correct. You have been misled on what you can do or on the action that you can take. I am instructing you guys to go back to work". Stegic said words to the effect "You guys do not have to work" and "You will be paid". Camilleri responded with words to the effect "That's not correct, there is no imminent safety threat or issue and we are instructing you back to work. You have to go back to work. You will not be paid. You have already lost four hours pay this morning". Blake said something to similar effect and Stegic responded, "No, you will be paid". The Nilsen Employees remained in the lunch shed and failed or refused to perform any work for the remainder of the work day and, at about 3.00pm, left the SMTF Site.

11. At about 3.40pm, Hopper and Edward each served a Notice of Entry under s 119 of the WHS Act by giving a copy to John Langford, the project manager of the SMTF Site, and then left the SMTF Site.

12. Blake had requested on a number of occasions that Edward and Hopper provide a Notice of Entry, but they responded with words to the effect, "Don't have time yet", "Maybe later" or "Oh yeah soon". Camilleri said to Edward words to the effect "There are policies and procedures that workers should be following a complaint of this nature such as a stoppage. For complaints of bullying and harassment there is a dispute resolution procedure under the Nilsen Agreement”and Edward replied words to the effect "No it's not. No it's not, this is not an illegal stoppage of work. The guys are being bullied and they are at risk and they are not going back to work until this is resolved". Around this time Camilleri and Martin again attempted to enter the induction room and were prevented from doing so by Edward, who placed himself in the doorway

13. During that day, Nilsen filed in the Fair Work Commission an Application for an Order to Stop etc (Unprotected) Industrial Action under s 418 of the FW Act.

14. At or around 6.30am on 18 October 2016, Stegic attended at the SMTF Site and served a Notice of Entry under s.119. At or around 6.45am the Nilsen Employees who attended for work were gathered in the lunch shed on the SMTF Site with Stegic in the lunch room with them. Martin and Blake entered the lunch shed and directed the Nilsen Employees who were there to commence work at 7.00am and those Nilsen Employees failed or refused to commence work as required and stayed in the lunch shed.

15. On the morning of 18 October 2016, in a hearing before the Fair Work Commission, the CEPU agreed to ensure that the Nilsen Employees would return to work that morning. After the hearing, at about 10.30am Martin, Blake and Camilleri entered the lunch shed where the Nilsen Employees and Stegic were located and Camilleri instructed the Nilsen Employees who were there to return to work and informed them that the outcome of the hearing before the Fair Work Commission was that they had to return to work and that they would not be paid wages for 17 October 2016 and at least four hours' pay for 18 October 2016. At or soon after 10.30am the Nilsen Employees who had attended for work that day, commenced work.”

[15] Justice Abraham’s consideration of the appropriate penalty to be imposed on Mr Stegic as a result of his admitted contravention of s 500 of the Act included the following reasoning:

“28. The facts on which the respondents were to have the penalty assessed were those admitted in the amended defences to the Amended Statement of Claim. It was those facts, limited though they are, which form the basis of the assessment as to the objective seriousness of the contraventions.

29. The maximum penalty for each contravention is 60 penalty units for Stegic, Hopper and Edward, and 300 penalty units for the CEPU. Penalty units are defined in s 12 of the FW Act via reference to s 4AA of the Crimes Act 1914(Cth). At the time of the conduct in this case (that is October 2016), the value of a penalty unit was $180. The maximum penalties applicable for each of the present contraventions of the FW Act is $10,800 for each contravention by Stegic, Hopper and Edward and $54,000 for each contravention by the CEPU.

30. The parties also submitted, by agreement, the range of penalties they said were appropriate in these proceedings. That range in respect to Stegic and Hopper for the s 417 and s 500 contraventions was $1,620-$2,700...

The nature and extent of the contravention, and the circumstances in which it took place

31. The contraventions relate to events on 17 and 18 October 2016, in the form of stoppages of work by the Nilsen Employees.

32. There is only limited material before the Court as to the nature of the stoppage. There are some statements in the Amended Statement of Claim that the respondents were making statements on 17 October 2016 from which it could be said that concerns were being expressed about workplace bullying. Nilsen applied for orders under s 418 of the FW Act to stop the industrial action and conciliation hearings were conducted on 18 October 2016 leading to an agreement between the CEPU and Nilsen whereby the CEPU would ensure that the employees returned to work at 10.25am on 18 October 2016.

33. The respondents initially submitted that the fact the stoppage related to a genuine safety issue ameliorates the seriousness of the conduct. Ultimately, the submission was refined so as to focus on the subjective belief or state of mind of the respondents, which it was contended could be inferred from their conduct and the statements made (as recited in the Amended Statement of Claim). The applicant took issue with that contention, and submitted there was no evidence that the stoppage of work by the Nilsen Employees was based on reasonable grounds that there was an imminent risk to their health and safety. More particularly, the applicant submitted there was no basis on the Amended Statement of Claim to draw the inference that the respondents had a genuine belief that there was a safety issue. The applicant submitted that is not the reasonable inference to be drawn and that that explanation could have been used as a guise under which industrial action was taken (as it was contended, without more, had been done in other cases). The applicant did not point to any factual foundation which would substantiate such an assertion in this matter. The applicant also submitted that the respondents’ actions were inconsistent with that inference, as there were other proper means to deal with such concerns if they had been genuine. The applicant submitted that the factor was neutral.

34. On the limited material before the Court, the applicant’s submission about the objective nature of the industrial action is correct. However, the respondents’ submission, as refined during the course of argument, related to the subjective state of mind of the respondents.

35. On the material before me, contrary to the applicant’s submission, there is no suggestion that the CEPU had used this approach as a guise in other cases. No material was pointed to in support of the submission. This is also in a context, as explained below, that there is only one previous contravention by the CEPU, which occurred in 2015. Moreover, the applicant did not challenge the contention that the contraventions were an “uncharacteristic aberration”. On the other hand, even if, at least at the outset the respondents held a genuine belief that they were acting because of a safety issue, the respondents’ submission can only go so far. It is plain that no defence was made out. The respondents, given their position, should have known better as to the approach they took. There was a procedure to be followed for such a complaint. The actions continued over more than one day.

36. The respondents also submitted that the contraventions are at the less serious end of the spectrum, as they were not “organising” industrial action but were “involved” in industrial action, referring to the description of White J in Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [227] of what constitutes being “knowingly concerned” in a contravention (which forms the basis of the respondents’ contraventions in this matter).

37. However, “organising” industrial action and being “involved” in the industrial action attract the same penalty under the FW Act. A person who is “involved” in a contravention, is taken to have contravened that provision: s 550(1). As a matter of statutory construction, there is no basis to contend that being involved in a contravention is necessarily less serious than organising, for that reason alone. The applicant’s general submission does not assist but rather distracts from the proper basis on which to impose a penalty which focuses on what was actually done by the respondents. As reiterated in Pattinson at [98], the object of deterrence is directed to the subject contravention, and consequently it is “important to understand the nature character and the full context of the contravening”.

38. I do not accept the respondents’ submission that the seriousness of the contraventions is at the lower end of the range suggested by the parties. The submission fails to reflect that the contraventions each involved a number of different and separate acts, and that the conduct continued for over a day. I also cannot accept the respondents’ submission as to the number of employees involved as it was only alleged as “one or more employees” and that is what was admitted. Although the Amended Statement of Claim does not refer to the number of employees, it is plain from its language that it was employees plural that were involved though their number is not before me.

Whether the contravener has engaged in any similar conduct in the past

39. There is no prior finding that Stegic, Edward or Hopper have engaged in similar contraventions in the past…

Any co-operation with authorities which has been shown

48. The respondents contend that the CEPU’s co-operation with and participation in the Fair Work Commission conciliation and ensuring the employees return to work is a significant mitigating factor.

49. The respondents have also co-operated in making admissions at an early stage (at the first mediation of the matter). The applicant accepted that the respondents admitted liability in the proceedings prior to the trial which saved the parties (and the Court) the time, cost and effort associated with a trial. I find that the respondents have co-operated with authorities.

Any contrition or corrective action taken

50. Hopper is no longer employed by the CEPU. Stegic and Edwards have attended “Right of Entry” training since the agreement. The respondents submitted this shows an intent by the respondents to ensure that contravening conduct is not repeated and insight by them into the seriousness of the conduct.

51. The applicant accepted that Stegic and Edward attended “Right of Entry” training organised by the applicant on 16 December 2019 and that it is appropriate for the Court to take this into account. However, the applicant submitted that there was no basis for any suggestion of remorse or contrition by the CEPU or the individual respondents and that the respondents have not apologised for their unlawful conduct. The applicant also submitted that there was no evidence to suggest that the CEPU has done anything, or intends to do anything, to reduce or eliminate the prospect of similar contraventions occurring in the future.

52. With the exception of an apology, it is unclear what else the applicant suggests ought to have been done by the respondents. That is particularly so in a context where there was no challenge to the description of the conduct being an “uncharacteristic aberration”, where there has been no such conduct before by this branch of the CEPU or the other respondents, and these contraventions occurred in 2016 with no suggestion there has been any contraventions since that time.

53. The respondents submitted that the applicant had accepted the range of 15 to 25 per cent of the penalties was appropriate, without reference to training. It was submitted that the applicant accepted that the undertaking of training, if it occurred, would be a factor in further mitigation and therefore must accept that penalties less than the maximum of the range identified by the parties are appropriate.

54. The applicant took issue with the fundamental proposition, and submitted that the parties agreed to the range of 15 to 25 per cent of the penalties with reference to training. Nonetheless the applicant acknowledged that the training is a relevant consideration to fixing the appropriate penalty within the agreed range.

55. An acceptance by the applicant that training, if it did occur, was a mitigating fact does not, contrary to the respondents contention, lead to the conclusion that less than the maximum of the range agreed between the parties is appropriate. A range said to be appropriate has been agreed. In assessing the appropriateness, this factor of training (and what is said to flow) is one factor to be taken into account in the process. It is not a mathematical process with the penalty necessarily reduced for this factor, but, as explained above at [18], a process of instinctive synthesis.

…

Conclusion

71. The parties submitted that after applying the relevant course of conduct principles it would be appropriate for the Court to order that the respondents pay pecuniary penalties in the range of 15 to 25 per cent of the available maximum penalty in respect of the admitted contraventions. When considering whether an agreed range of penalties is appropriate as provided by the parties in this case (or an agreed penalty), the Court is required to “form its own view” and does not act as a “rubber stamp” to an agreement reached: DFWBII at [31]. In the context of this matter I am satisfied that it is appropriate to order the respondents to pay pecuniary penalties in the range suggested by the parties.

72. Having taken into account and weighed the relevant factors I find that the appropriate penalty sits above the middle of the agreed range proposed by the parties. I have taken into account any overlap in the factual basis of the s 417 and s 500 contraventions by Stegic, Hopper and the CEPU to ensure that there is no double penalty. There is no proper basis to distinguish between Stegic and Hopper. Accordingly I make the following pecuniary penalty orders:

(1) Stegic for the s 417 contravention, $2,300.

(2) Stegic for the s 500 contravention, $2,300.

(3) Hopper for the s 417 contravention, $2,300.

(4) Hopper for the s 500 contravention, $2,300.

(5) Edward for the s 417 contravention, $2,400.

(6) CEPU for the s 417 contravention, $11,500.

(7) CEPU for the s 500 contravention, $11,500.”

Suspension harsh or unreasonable?

[16] The power of the Commission under s 510(1) and (2) of the Act is informed not by the need to punish individuals (which is properly a function of the Court in other proceedings), but by the need to establish or maintain the balancing of rights and obligations between employees, unions, occupiers of premises and employers. 3 The jurisdiction is protective and corrective, not penal.4

[17] In determining whether any period of suspension would be harsh or, in the particular circumstances, unreasonable, the Commission should have regard to all of the relevant circumstances, including the seriousness of the contravention. 5

[18] I accept that the likelihood of a permit holder contravening Part 3–4 again is relevant to the question of whether a suspension of the permit holder’s right of entry would be unreasonable or harsh in the circumstances.

Submissions on behalf of Mr Stegic and the Union

[19] Mr Stegic and the Union submit that a suspension of Mr Stegic’s right of entry permit would:

(a) be disproportionate to the gravity of the conduct under consideration;

(b) give insufficient weight to the contrition shown by Mr Stegic and the steps he has taken to avoid any further contraventions; and

(c) be unduly harsh in consequence for Mr Stegic.

[20] It is submitted that Mr Stegic has acknowledged that his conduct on 17 October 2016 was utterly inappropriate and inconsistent with his obligations as a permit holder. Mr Stegic and the Union further submit that the seriousness of the conduct is nevertheless ameliorated by the following factual matters:

(a) Mr Stegic was, in October 2016, a very inexperienced organiser who had come ‘off the tools’ only a few months earlier;

(b) the events of 17 October 2016 occurred because members at the SMTF site had a serious and ongoing concern about bullying and harassment in the workplace by a supervisor;

(c) Mr Stegic’s conduct involved a genuine and good faith attempt to resolve a serious workplace bullying issue;

(d) Mr Stegic’s conduct on that day was not premeditated, but rather responded to the concerns and state of mind of workers;

(e) Mr Stegic genuinely (although, he now accepts, wrongly) held the view that the cessation of work by the employees was not unlawful industrial action, but was lawful because the workers faced an imminent health and safety risk;

(f) the belief held by Mr Stegic that the cessation of work by the employees was lawful was genuine and not a guise for the taking of unlawful industrial action;

(g) Mr Stegic’s conduct in preventing management from talking to the workers on the morning of 17 October 2016 must be understood in the context that he understood that managers would pressure the workers to return to work, in circumstance where Mr Stegic believed that the employees were entitled to cease work until the issue of bullying had been addressed. He was concerned about the effect of such pressure on the workers;

(h) accordingly, the contravention did not involve a deliberate or defiant breach of the law;

(i) Mr Stegic did not behave in an intimidating manner towards the employer representatives. He did not use inappropriate language towards representatives of the employers (the worst conduct found in this regard was “throwing his hands in the air and speaking in a raised voice”); and

(j) Mr Stegic co-operated in facilitating a return to work on the morning of 18 October 2016, following an agreement between the parties to deal with the bullying issue, in the Fair Work Commission.

[21] Mr Stegic and the Union contend that the conduct giving rise to the contravention was, as Justice Abraham accepted, an “uncharacteristic aberration” on the part of Mr Stegic. There is no suggestion of any inappropriate conduct by Mr Stegic since that date. The possibility of a recurrence is, so it is submitted, therefore remote.

[22] It is contended that Mr Stegic has shown insight into, and contrition for, his conduct; Mr Stegic recognises that his behaviour was inappropriate and has expressed sincere remorse for that conduct.

[23] Mr Stegic and the Union submit that whilst inexperience is not generally an excuse for contravening s 500, the circumstances which arose on 17 October 2016, where members were extremely upset about ongoing bullying by a supervisor, were unusual and challenging. Mr Stegic’s inexperience does partially explain his inappropriate response, which was motivated purely by an intention to protect the workers. It is contended that Mr Stegic has learned from the experience.

[24] The Union and Mr Stegic contend that he cooperated with the authorities; he admitted to two contraventions at the first mediation so as to minimise the cost and inconvenience to other parties.

[25] Mr Stegic points to the fact that he has undertaken further right of entry training, including right of entry training organised by the ABCC, to ensure that when exercising right of entry in future he will behave lawfully at all times.

[26] In light of these circumstances, it is submitted that the suspension of Mr Stegic’s permit would be disproportionate and punitive, and thereby unreasonable within the meaning of s 510(2). It would also give insufficient weight, so it is contended, to Mr Stegic’s contrition, his early ‘plea’, and his undertaking of remedial right of entry training.

[27] It is further submitted that the suspension of Mr Stegic’s permit would be harsh because of its disproportionate effect on him in the circumstances. The consequences for Mr Stegic would be severe. On site visits are a daily part of his role as Organiser. He would be unable to perform a substantial part of his duties. It is submitted that his livelihood would potentially be at risk or jeopardised.

Consideration

[28] I accept that the matters set out in paragraphs [20] to [27] above weigh in favour of a conclusion that a suspension of Mr Stegic’s entry permit would be harsh and unreasonable. However, other matters tell against such a conclusion. In particular, Mr Stegic’s contravention of s 500 of the Act was serious, as is reflected in the finding by Justice Abraham that the “appropriate penalty sits above the middle of the agreed range [15% to 25%] proposed by the parties”. 6 The seriousness of the matter is reflected in the fact that Mr Stegic’s conduct at the SMTF Site on 17 October 2016 contributed to a situation where numerous employees refused to undertake any work for their employer for more than a full day. Further, although Mr Stegic had only been an Organiser for a number of months prior to 17 October 2016, he had prior experience as a workplace delegate and “should have known better as to the approach” he took.7 There were numerous options available to Mr Stegic, particularly having regard to the fact that he was aware of the bullying and harassment concerns on the part of members since early September 2016.8 Mr Stegic could have raised a dispute under the relevant provisions of the applicable enterprise agreement. He could have lodged an application for an order to stop bullying in the Fair Work Commission. Instead of taking one of these lawful actions in response to the concerns raised by a number of members, Mr Stegic acted in an improper manner when exercising a right of entry at the SMTF Site on 17 October 2016. Finally, although Mr Stegic has given evidence in his affidavit that without his right of entry permit he would be unable to perform his role with the Union and, in that event, he would ‘expect’ his ongoing employment to be in jeopardy,9 there is no evidence from the Union to suggest that it will bring his employment to an end if his entry permit is suspended for three months. In the absence of such evidence, I do not accept the submission that Mr Stegic’s livelihood is at serious risk.

[29] Having regard to all the circumstances, including the serious nature of the improper conduct the subject of Mr Stegic’s contravention of s 500 of the Act, and balancing the rights of organisations to represent their members in the workplace with the rights of the occupiers of premises to go about their business without undue inconvenience, I am satisfied that a suspension of Mr Stegic’s right of entry would not be unreasonable or harsh in the circumstances. Having regard to the same considerations, I am satisfied that a suspension (rather than a revocation) and ban for a period of three months would be appropriate in the circumstances.

Conclusion

[30] For the reasons set out above, I will make an order that Mr Stegic’s entry permit be suspended for a period of three months and there be a ban on the issue of any further entry permit to Mr Stegic for the same period.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR725108>

 1   ABCC v CEPU [2020] FCA 1619 (Judgment)

 2 s 510(3) of the Act is not relevant to this matter

 3   Perkovic vDirector of the Fair Work Building Industry Inspectorate [2015] FWCFB 5867 at [27]

 4   Australia Building and Construction Commission v McLoughlin[2007] AIRC 717 at [221]; Fair Work Commission [2011] FWA 5824 at [26]

 5   Perkovic vDirector of the Fair Work Building Industry Inspectorate [2015] FWCFB 5867 at [24]

 6   Judgment at [72] & [38]

 7   Judgment at [35]

 8   Affidavit of Mr Stegic made on 1 December 2020 at [22] & [26]

 9   Ibid at [67]