In the matter of the Entry Permit of Luke Johannes Gibson
[2022] FWC 1692
•25 JULY 2022
| [2022] FWC 1692 |
| 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 Luke Johannes Gibson
(RE2022/225)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 25 JULY 2022 |
Revocation/suspension of entry permit: Luke Johannes Gibson
Luke Johannes Gibson was issued with a right of entry permit pursuant to s 512 of the Fair Work Act 2009 (Act) on 30 March 2020. He is an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). A pecuniary penalty in the sum of $10,000.00 was imposed on Mr Gibson by order of Judge Vasta of the Federal Circuit and Family Court of Australia in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union[1] on 11 March 2022 by reason of Mr Gibson’s contravention of s 500 of the Act on 30 April 2020. The Court declared that on 30 April 2020, while exercising rights in accordance with Pt 3-4 of the Act at the Marine Parade Apartments Project located at Marine Parade in Labrador (Project site), Mr Gibson entered exclusion zones without authorisation, stood behind concrete trucks, blocking the delivery of concrete to concrete pumps, and engaged in abusive and intimidatory behaviour, and thereby intentionally hindered and obstructed persons at the Project site and acted in an improper manner, in contravention of s 500 of the Act. Mr Gibson admitted liability.[2]
By reason of the imposition of the pecuniary penalty on Mr Gibson for contravening s 500 of the Act, the Commission’s jurisdiction pursuant to s 510(1)(d) of the Act is engaged. The proceeding under s 510(1) of the Act involves a building industry participant within the meaning of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act). The Australian Building and Construction Commissioner (Commissioner) gave written notice on 25 March 2022 that he intervenes in the proceeding pursuant to s 110 of the BCIIP Act.
The CFMMEU and the Commissioner have filed written submissions and by consent, the matter is determined on the papers without a hearing.
The Commission must revoke or suspend the entry permit held by Mr Gibson unless action under s 510(1) of the Act has previously been taken and the circumstances which now enliven the jurisdiction were taken into account. This does not arise here. The Commission is not required to take action under s 510(1) if satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances. Sections 500 and 510 of the Act are part of a right of entry scheme established by Part 3-4. The object of Part 3–4 is to establish a framework for officials of organisations to enter premises that balances the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of the Act, fair work instruments and State or Territory OHS laws; the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and the right of occupiers of premises and employers to go about their business without undue inconvenience.
As I have observed previously,[3] the exercise of the Commission’s powers and functions under ss 510(1) and 510(2) is to be informed, not by the need to punish a permit holder, but rather by the need to establish or maintain a balancing of rights and obligations between employees, registered organisations, occupiers of premises and employers. The Act does not prescribe any factors that must be taken into account in the Commission’s assessment of whether a suspension or revocation of the entry permits would be harsh or unreasonable, however it is now well established that the power in s 510(1) considered in the context of s 510(2) is to be guided by protective and corrective considerations, not penal consideration.[4] The need for specific or general deterrence are matters for the Court in considering the penalty that should be imposed in relation to a given contravention. In deciding whether a suspension or revocation of an entry permit would be harsh or unreasonable; whether to revoke rather than suspend an entry permit; and the duration of any suspension and/or ban period, it will be relevant to have regard to the extent to which the Commission can have confidence that the permit holder would exercise her or his rights as a permit holder under the Act in a manner which achieves the necessary balance between the rights mentioned in s 480 of the Act.[5] In this respect the question of the deterrent effect of any penalty imposed on the permit holder by a court in respect of the contravening conduct that gave rise to the triggering event may be relevant.
Matters that are relevant to assessing whether suspension or revocation of an entry permit under s 510(1) would be harsh or unreasonable in the circumstances include the objects of Part 3-4; the nature and gravity of the underlying contravention of Part 3-4; the impact that the revocation or suspension of the entry permit/s might have on the organisation, its members and the permit holder; whether training has been undertaken by the entry permit holder since the events; and general character evidence.[6]
The circumstances of the contravening conduct in which Mr Gibson engaged are set out below:
· On 30 April 2020, Andrew Blakeley another CFMMEU official who at the time was a permit holder, and Mr Gibson, entered the Project site to exercise rights under the Work Health and Safety Act 2011 (Qld) (WHS Act). Messrs Blakeley and Gibson produced their right of entry permit issued under the Act, their entry permit issued under the WHS Act and a notice specifying that they were entering to enquire into a suspected contravention of the WHS Act.
· Rawcorp Pty Ltd is a construction company and was at the relevant time undertaking construction work at the Project site. It had engaged two subcontractors – Classic Concrete Pumping and Dallem Concrete Constructions in connection with a planned concrete pour at the Project site on 30 April 2020. Rawcorp also engaged Risk Essentials Pty Ltd to provide health and safety services relating to the Project site.
· Because of overhead power lines at the Project site, a static line had been set up to feed concrete from street level to the first floor.
· A Work Health and Safety Queensland inspector was on the Project site when Messrs Blakeley and Gibson entered the Project site.
· There were exclusion zones at the Project site which included the Concrete Pump Zone.
· Messrs Blakely and Gibson spoke with Ms Pettersen about the static line. During the conversation Mr Gibson was loud and aggressive and he said words to the effect that “Rawcorp is a fucking disgrace”, “Rawcorp does not care for its workers” and “Rawcorp’s director is a fucking disgrace”.
· Messrs Blakely and Gibson were not authorised to enter the exclusion zones but did so at about 10:00am on 30 April 2022. Mr Gibson stood in a position between the concrete pump and the concrete truck at the northern pump while Mr Blakely was also standing between the concrete truck and the concrete pump at the southern pump. Both were physically blocking the trucks from reversing back to the concrete pumps which delayed the delivery of concrete to the Project site and had the practical effect of not allowing concrete to be delivered to the concrete pumps and, ultimately, to the first floor of the Project site where it would be poured and finished.
· While standing behind the concrete trucks, Mr Gibson said words to the effect of “I’m not letting you guys start pouring anymore concrete” and “you guys won’t be fucking doing any more pouring today”. Consequently, an employee of Rawcorp contacted the Queensland Police Service.
· Messrs Blakely and Gibson continued to stand behind the concrete trucks. At times Messrs Blakely and Gibson would act together blocking the concrete trucks and, at other times, they would separate and position themselves so that one was blocking the trucks at the northern end pump and the other at the southern end pump.
· A Rawcorp employee spoke to Mr Gibson and made several requests for him to remove himself from behind the trucks. At one stage Mr Gibson was asked: “Luke, can I just ask you to move so we can keep going with what we are doing? We can have another conversation later. Just move away.” Mr Gibson responded with “I am on a public road. Ring the cops then.”
· While Mr Gibson was standing behind the concrete trucks, he was goading the truck drivers with words to the effect of “Come on, fucking hit me. I want you to hit me” and “keep on coming back”.
· The workers for Dallem also asked Mr Gibson to move from behind the trucks and Mr Gibson replied with words to the effect of, “Hit me, Fucking hit me. Come on, fucking hit me, you weak cunts”.
· When the police arrived – about 45 minutes after Messrs Blakely and Gibson first stood behind the trucks – Messrs Blakeley and Gibson left the Project site before the police could speak with them.
· The concrete pour was delayed by 45 minutes, but there were no serious consequences which might have occurred if the pour had been delayed longer.[7]
As to Mr Gibson’s conduct, the Court found that Mr Gibson:
· entered exclusion zones without authorisation, stood behind concrete trucks, blocked the delivery of concrete to the concrete pumps, refused to obey directions to leave the area and engaged in abuse of workers in an intimidatory manner;
· was clearly intentionally hindering and obstructing workers on the Project site and he was acting in an improper manner and therefore he has contravened s 500 of the Act.[8]
In determining the appropriate penalty to be imposed the court observed that:
· Any concern for safety did not explain why Mr Gibson behaved in such an appalling manner;
· If he was so concerned with the safety of workers, it seemed incongruous that he would ask those same workers to hit him with their trucks, let alone fight him and it would hardly explain why Mr Gibson would refer to them as “weak cunts”;
· In looking at the flight of Messrs Blakeley and Gibson upon police arrival, it may be inferred that both knew very well the illegality of what it was they were doing which is why they left and that this was clear evidence of a consciousness of guilt;
· Mr Gibson had cause to enter the Project site and to exercise rights on entry, but it was quite ironic that he would then blatantly flout safety rules by entering exclusion zones into which he was forbidden entry;
· Nothing justified his actions after speaking to the Work Health and Safety Queensland inspector;
· Although Mr Gibson’s conduct caused minimal damage, it was a flagrant abuse of the power to enter the Project site to act contrary to the law, as if “those rules don’t apply to us and we can do whatever we want”;
· There was little to no evidence of any contrition or evidence to “say that [Mr Gibson] has ‘changed [his] ways’ or that [he] won’t behave in a similar manner in the future.”[9]
· Mr Gibson had a previous contravention of s 500 of the Act.[10] That contravention did not involve the totally aggressive and improper behaviour towards workers as was displayed in the present matter. The actions in the previous contravention were not such that they could have led to the catastrophic results to which the present actions could potentially have caused.[11]
There is no contention advanced by the CFMMEU that taking some action against Mr Gibson under s 510(1) of the Act would be harsh or unreasonable. However, it contends that matters relevant to harshness or unreasonableness with respect to s 510(2) inform the exercise of the discretion whether to suspend or revoke an entry permit. I agree that such matters may be relevant, and the Commissioner did not make a submission to the contrary. Both the CFMMEU and the Commissioner agree that suspension, rather than revocation of Mr Gibson’s permit is the appropriate action to be taken in the circumstances. I also agree. The contest is as to the length of the suspension and ban period for the purposes of ss 510(4) and (5).
Relevantly s 510(4) of the Act provides that a suspension under s 510(1) must be for a period that is at least as long as 3 months if the Commission has not previously taken against the permit holder under s 510(1). Section 510(5) provides that if the Commission takes action under subsection (1), it must also ban the issue of any further entry permit to the permit holder for a specified period which must begin when the action is taken under s 510(1) and be no shorter than the applicable minimum suspension period.
The CFMMEU contends that the period of suspension should be three months because:
· Although the contravening conduct was objectively serious, it was for a short period of time and in direct response to concerns about serious safety matters;
· The conduct was not gratuitous behaviour or unprovoked, rather it was reactive;
· Mr Gibson has completed further training since the contravening conduct; and
· The Commission has not previously taken action against Mr Gibson under s 510(1).
The improper conduct in which Mr Gibson engaged on 20 April 2020, was serious and involved Mr Gibson entering exclusion zones without authorisation, standing behind concrete trucks, blocking the delivery of concrete to the concrete pumps, refusing to follow directions to leave the area, engaging in abuse of workers in an intimidatory manner and intentionally hindering and obstructing workers. Considering the observations made by the Court about Mr Gibson’s conduct, the CFMMEU’s contention that the conduct was in direct response to concerns about serious safety matters cannot be accepted. The Court noted that it is very difficult “to find that the actions of [Messrs Blakely and Gibson] were, in any way, the result of their concern for safety at the worksite.”[12] And as noted earlier any concern for safety did not explain why Mr Gibson behaved in such an appalling manner,[13] nor did those concerns explain why Mr Gibson would refer to the workers as “weak cunts”,[14] and that nothing justified his actions after speaking to the Work Health and Safety Queensland inspector.[15] Moreover, as the Court also observed, the concerns for safety hardly explain the incongruity of Mr Gibson’s action in asking workers to hit him with their trucks, let alone to fight him.[16]
Similarly, the contention Mr Gibson’s conduct was not gratuitous behaviour or unprovoked and was reactive cannot be accepted considering the Court’s findings. The Court noted that Mr Gibson, having properly and lawfully enter the Project site, then ironically “blatantly flout[ed] safety rules by entering [exclusion] zones for which [he was] forbidden entry.”[17] The Court also observed that “it may very well be inferred that [Mr Gibson] knew very well the illegality of what [he was] doing”, given he and Mr Blakeley immediately left the site when Police arrived.[18] Mr Gibson’s conduct was also a flagrant abuse of the power to enter the Project site to act contrary to the law, as if “those rules don’t apply to us and we can do whatever we want”.[19]
As to the contention Mr Gibson has completed further training since the contravening conduct, I accept that the undertaking of training may tell against imposing a suspension period longer than the applicable minimum suspension period but the circumstances under which the training was undertaken is relevant to assessing the weight that should attach to the training undertaken. All the more so here, since Mr Gibson completed substantially similar training (at least judging by the certificate issued) on 15 January 2020 before his permit was issued on 30 March 2020, yet only one month later (and only three and a half months after undertaking the training), he had engaged in the contravening conduct described earlier. Mr Gibson completed a course of training conducted by the CFMMEU titled “Federal Right of Entry under the Fair Work Act 2009” on 20 April 2022.
Mr Gibson provided no statement to the Commission about his training and apart from the certificate of completion, there is no evidence about the reason for undertaking the training. There is no evidence about whether Mr Gibson recognised the need for corrective or further training, whether he was directed to undertake the training nor any evidence about what Mr Gibson has learned by undertaking the training, particularly by reference to the nature of his contravening conduct, or how the further training might now affect the way in which he conducts himself as a permit holder. There is also no evidence about any disciplinary or counselling action taken by the CFMMEU against Mr Gibson in respect of the contravening conduct.
Judging by the certificate, the training undertaken appears to be the standard training provided by the CFMMEU to officials who are prospective permit holders before applications for permits to be issued are made. It does not appear that the training was directed to the contravening conduct or to correcting the way Mr Gibson might in the future exercise entry rights are permit holder. In these circumstances I attach no significant weight to the training undertaken.
In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Forestry Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2)[20] Collier J was satisfied that Mr Gibson contravened s 500 of the Act by engaging in improper conduct on 11 and 12 April 2018. The Court’s judgment as to any penalty to be imposed for the contravening conduct is reserved. The Court’s findings in the Bruce Highway Caloundra to Sunshine Upgrade Case in and of itself is not a triggering event for the purposes of s 510(1). I do not propose to take the Court’s findings into account in assessing the action that should be taken in relation to Mr Gibson’s entry permit. The imposition of any penalty arising from the conduct in which Mr Gibson was found to have engaged in Bruce Highway Caloundra to Sunshine Upgrade Case will be a triggering event for the purposes of s 510(1), assuming a permit is held by him at that time. The reasons for judgment for the imposition of any penalties will likely disclose matters that will be relevant in assessing the appropriate action, if any, that should be taken in respect of any permit then held by Mr Gibson. This will include the Court’s assessment of the objective seriousness of the contravening conduct in which Mr Gibson has been found to have engaged. In these circumstances it would be premature and not appropriate to taken into account the Court’s findings in in the Bruce Highway Caloundra to Sunshine Upgrade Case in determining the action that should now be taken in respect of Mr Gibson’s entry permit.
It is accepted that the Commission has not previously taken action against Mr Gibson under s 510(1) and so the period of suspension to be imposed must be at least 3 months. Balanced against this is the nature of the contravening conduct, which was serious, deliberate, abusive, intimidatory, and involved a flagrant abuse of the power and a blatant flouting of the Project site safety rules. There was no evidence of contrition before the Court, and none was offered here.
Having regard to the considerations described above and taking into account the balancing of competing rights inherent in s 480 of the Act which sets out the object of Part 3-4, I consider that a period of suspension longer than the minimum suspension period is appropriate and is likely to have a more reliable corrective and protective effect. I consider that a period of five months is the appropriate period of suspension in all the circumstances and will provide the Commission with some confidence that the contravening conduct will not be repeated.
I therefore propose to suspend Mr Gibson’s entry permit for a period of five months from the date of this decision and to fix a ban period under ss 510(5) and (6) of the Act beginning on the date of this decision and ending at the end of a period of five months. I remind Mr Gibson of his obligation under s 517(1) to return the suspended permit to the Commission within seven days of the date of this decision. At the end of the suspension period, the permit will be returned to Mr Gibson on application by him or the CFMMEU.
Order
I order:
1.Pursuant to s 510(1) the entry permit held by Luke Johannes Gibson is suspended for a period of five months commencing on 25 July 2022 and ending at the end of 24 December 2022; and
2.Pursuant to s 510(5) I ban the issue of any further entry permit to Luke Johannes Gibson for a period of five months commencing on 25 July 2022 and ending at the end of 24 December 2022.
DEPUTY PRESIDENT
[1] [2022] FedCFamC2G 156
[2] Ibid at [47]
[3] See for example In the matter of the Entry Permit of Mr Justin Brendon Lee Hobson[2022] FWC 1146
[4] In the matter of the Entry Permit of Blake Patrick Hynes[2020] FWC 97 at [16]; Mr Muhammed Kalem [2017] FWC 5086 at [19]; Mr Nigel Davies [2019] FWC 2022 at [21]
[5] Fair Work Commission v Stephen Long[2017] FWC 6867 at [25]
[6] Parker and others [2011] FWA 2577 at [26]-[28], [33] and [34]
[7] [2022] FedCFamC2G 156 at [3]-[30]
[8] Ibid at [33]
[9] Ibid at [51]-[57]
[10] Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case ) (No 2) [2019] FCA 1737
[11] [2022] FedCFamC2G 156 at [76]
[12] Ibid at [48
[13] Ibid at [51]
[14] Ibid
[15] Ibid at [54]
[16] Ibid at [51]
[17] Ibid at [53]
[18] Ibid at [53]
[19] Ibid at [56]
[20] [2019] FWC 1737, (2019) 292 IR 259
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In the matter of the Entry Permit of Luke Johannes Gibson [2022] FWC 1692
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