In the matter of the Entry Permit of Mr Beau Richard Seiffert
[2022] FWC 222
•10 FEBRUARY 2022
| [2022] FWC 222 |
| 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 Mr Beau Richard Seiffert
(RE2021/1039)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 10 FEBRUARY 2022 |
In the matter of the Entry Permit of Mr Beau Richard Seiffert – penalties imposed for a contravention of s 500 of the Act – whether to suspend or revoke entry permit – whether suspension in the circumstances harsh or unreasonable – permit suspended.
Mr Beau Richard Seiffert is an official of the Construction, Forestry, Maritime, Mining and Forestry Union (CFMMEU) and the holder of an entry permit issued under s 512 of the Fair Work Act 2009 (Act). In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Forestry Union and Ors (Toowoomba Bypass Case) [1] Rangiah J made declarations to the effect that Mr Seiffert contravened s 500 of the Act on 30 April 2018 and 1 May 2018 when exercising a State or Territory OHS right of entry, by acting in an improper manner by refusing a request by the occupier of the site (being the construction site area of the Toowoomba Second Range Crossing Project) to produce his Federal entry permit for inspection and failing to comply with several requests from the occupier of the site to leave the site. His Honour also made a declaration to the effect, relevantly, that the CFMMEU is taken to have contravened s 500 of the Act by reason of Mr Seiffert’s contravening conduct and the operation of ss 793(1) and (2) and 550.
Mr Seiffert was ordered to pay pecuniary penalties of $4,000.00 for each of the two contraventions (a total of $8,000.00) of s 500 of the Act and the CFMMEU was ordered to pay a total of $75,000.00 for a range of contraventions including those involving Mr Seiffert. Section 510(1) of the Act requires the Commission to revoke or suspend each entry permit held by a permit holder if it is satisfied that, inter alia, since the first of any operative permit was issued, the permit holder or another person was ordered to pay a pecuniary penalty under the Act in relation to a contravention of Part 3-4 of the Act by the permit holder. The penalty imposed on Mr Seiffert was for a contravention of s 500 which is found in Part 3-4. The penalty imposed on the CFMMEU was also for a contravention of s 500 and relevantly constituted by Mr Seiffert’s contravening conduct. The power in s 510(1) is therefore engaged. Consequently, as Mr Seiffert is a permit holder under the Act the imposition of these penalties is a triggering event under s 510(1)(d), requiring consideration of whether to suspend or revoke Mr Seiffert’s entry permit.
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 23 September 2021 that he intervenes in the proceeding pursuant to s 110 of the BCIIP Act. The CFMMEU, Mr Seiffert and the Commissioner filed submissions and other materials in the proceeding and agree that the proceeding can be determined on the papers without an oral hearing. I consider that this is an appropriate course in the circumstances.
Separately Mr Seiffert has been found to have contravened ss 497 and 500 of the Act in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Forestry Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2)[2] in relation to which a penalty hearing was held on 27 October 2021 with judgment reserved. Additionally in proceeding QUD194/2020 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Forestry Union & Ors, Mr Seiffert has admitted to contravening s 500 of the Act with a penalty hearing having been held on 7 October 2021 and judgment reserved. In each case the circumstances of the contravening conduct involved the exercise of a State or Territory OHS right of entry. If a penalty is imposed in either or both proceedings and Mr Seiffert is a permit holder, this or each of these will also be a triggering event. These proceedings are mentioned because they are relevant to an application made by the CFMMEU that I adjourn consideration of any action that should be taken in relation to Mr Seiffert’s permit until judgments are delivered in the aforementioned matters and then to consider all of the triggering events together for the purposes of determining what action should be taken under s 510(1).
On 10 December 2021 I refused the application and briefly stated, my reasons for refusing the adjournment request are as follows. First, an adjournment, which is of an uncertain duration, has the real prospect of undermining the protective purpose which underpins s 510 of the Act in circumstances where there has been a triggering event and the Commission’s jurisdiction is enlivened. Secondly, an adjournment might also have the undesirable effect of avoiding the cascading effect of s 510(4) in the event that action under s 510(1) is taken. That subsection contemplates the consequences of actions taken under s 510(1) on one or more occasions as a result of different or separate triggering events. It is one thing to consider multiple existing triggering events in the one proceeding for the purposes of s 510(1), but it is quite another to be asked to delay action in relation to an existing triggering event (and thus take no action) until there have been further triggering events, because of findings or admissions made in extant proceedings. Thirdly, the statutory scheme is clear: subject to ss 510(2) and (3), the Commission must revoke or suspend a permit if satisfied that a relevant triggering event has happened since the permit was issued. There is no dispute that a relevant triggering event has happened since Mr Seiffert’s entry permit was issued and the fact that there are possible further triggering events pending is not a sufficient basis to delay the exercise of power mandated by s 510(1).
I return then to consider what action, if any, should be taken under s 510(1) in relation to Mr Seiffert’s entry permit.
Mr Seiffert entered the construction site area of the Toowoomba Second Range Crossing Project on 30 April 2018 and 1 May 2018 relying on s 81(3) of the Work Health and Safety Act 2011 (Qld) (WHS Act). That section provides that a representative of a party to an issue (being an unresolved matter about work health and safety arises at a workplace) may enter the workplace for the purpose of attending discussions with a view to resolving the issue. Mr Seiffert refused to show his entry permit and leave the site in accordance with requests by the occupier of the site. His refusal was based on an erroneous belief that his entry pursuant to s 81(3) of the WHS Act did not involve the exercise of a State or Territory OHS right.
As already noted, Rangiah J ordered Mr Seiffert and the CFMMEU to each pay a pecuniary penalty because Mr Seiffert contravened s 500 of the Act. That section provides that a person “must not intentionally hinder or obstruct any person, or otherwise act in an improper manner” while exercising, or seeking to exercise, rights as a permit holder in accordance with Part 3-4.
Section 510 of the Act relevantly provides:
510 When the FWC must revoke or suspend entry permits
When the FWC must revoke or suspend entry permits
(1) The FWC must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that any of the following has happened since the first of those permits was issued:
....
(d) the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of this Part by the permit holder;
...
(2) Despite subsection (1), the FWC is not required to suspend or revoke an entry permit under paragraph (1)(d) or (f) if the FWC is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.
(3) Subsection (1) does not apply in relation to a circumstance referred to in a paragraph of that subsection if the FWC took the circumstance into account when taking action under that subsection on a previous occasion.
Minimum suspension period
(4) A suspension under subsection (1) must be for a period that is at least as long as the period (the minimum suspension period) specified in whichever of the following paragraphs applies:
(a) if the FWC has not previously taken action under subsection (1) against the permit holder—3 months;
(b) if the FWC has taken action under subsection (1) against the permit holder on only one occasion—12 months;
(c) if the FWC has taken action under subsection (1) against the permit holder on more than one occasion—5 years.
Banning issue of future entry permits
(5) If the FWC takes action under subsection (1), it must also ban the issue of any further entry permit to the permit holder for a specified period (the ban period).
(6) The ban period must:
(a) begin when the action is taken under subsection (1); and
(b) be no shorter than the minimum suspension period.
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 be found in s 480 which provides:
480 Object of this Part
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.
In Maritime Union of Australia v Fair Work Commission[3] a Full Court of the Federal Court made the following observations about Part 3-4 of the FW Act:
Although the questions for resolution may be stated simply, it is important to recognise at the outset that Part 3-4 of the Fair Work Act fundamentally modifies common law rights.
A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62 thus observed:
The right of entry contemplated by s 42A of the FW Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.
See also: Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 439 to 440 per von Doussa J.
Section 480, extracted at [8] above, sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.
It is thus not surprising that the legislature has confined the category of persons who may be clothed with such powers to those persons who are “fit and proper”.[4]
The occurrence of an event identified in ss 510(1)(a) to (f) since the date on which the first of any entry permits held by a permit holder was issued, results in a suspension or revocation of the relevant permit or permits, unless s 510(1) does not apply by reason of s 510(3) or the Commission exercises a discretion under s 510(2) not to suspend or revoke an entry permit because of the happening of an event in s 510(1)(d) or (f) once it is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.
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 power in s 510 is protective and corrective, not penal.[5] 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.[6]
Other relevant matters in 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.[7] None of this was controversial in this proceeding.
The CFMMEU and Mr Seiffert contend that no action should be taken under s 510(1) of the Act because suspension or revocation of Mr Seiffert’s entry permit would be harsh or unreasonable. In support of this contention, they rely cumulatively on the following matters:
· The contravening conduct was premised on an honest and reasonable mistake of law. The conduct was neither deliberate nor contumacious, but the result of a reasonable misunderstanding of s 81(3) of the WHS Act which had been engendered by the Branch and which, until the Bruce Highway litigation leading to the decision in CFMMEU v ABCC (The Bruce Highway Caloundra to Sunshine Upgrade Case), had not been challenged by the Commissioner.
· The contravening conduct was not serious. It did not occasion any economic loss or otherwise disrupt work. It was not deliberate (in the sense of being knowingly unlawful). Mr Seiffert had a genuine and reasonable belief that what he was doing was lawful.
· Mr Seiffert has been disabused of the erroneous construction of s 81(3) of the WHS Act which undergirded the contraventions.
· Mr Seiffert has been directed by the CFMMEU to comply with Division 3 of Part 3-4 of the FW Act in relation to entries to premises under s 81(3) of the WHS Act.
· Mr Seiffert is, for the above reasons and consistently with His Honour’s conclusion in the Toowoomba Bypass Case, unlikely to ever contravene Part 3-4 of the Act again on the basis of the incorrect understanding of s 81(3).
· The contravening conduct occurred over 3 years ago.
In these circumstances the CFMMEU and Mr Seiffert contend that no protective and corrective purpose will, in the circumstances, be served by imposition of a suspension or revocation.
The Commissioner does not contend for revocation, nor would I be inclined in the circumstances to do so, but he says that suspension of Mr Seiffert’s entry permit is the proper course.
I am not persuaded that the circumstances contended by the CFMMEU and Mr Seiffert would render a suspension of Mr Seiffert’s entry permit harsh or unreasonable. My reasons for that conclusion follow.
First, although I accept that Mr Seiffert held a belief that his entry under s 81(3) of the WHS Act did not involve the exercise of a State or Territory OHS right and thus he was not required to produce his entry permit and that this view was reasonably arguable, the contravention is nevertheless to be regarded as serious, albeit that there is a spectrum of seriousness. Part 3-4 of the Act confers significant powers on permit holders, but it also imposes limitations and checks upon the exercise of those powers. These include s 500 which prohibits a person who is a permit holder exercising, or seeking to exercise, rights in accordance with Part 3-4 from intentionally hindering or obstructing a person, or otherwise acting in an improper manner.
Second, the conduct engaged in furtherance of his belief must be assessed in context and not in a vacuum. Several contextual matters are relevant. At the time of the contravening conduct the outcome in Australian Building and Construction Commissioner v Powell[8] was known. In Powell the Full Court considered ss 58(1)(f) and 70(1) of the Occupational Health and Safety Act 2004 (Vic) and whether there was a conferral of a State or Territory OHS right of entry on a union official who responds to a request for assistance from a health and safety representative. The Full Court concluded that by s 70(1) there was a conferral of a State or Territory OHS right of entry.[9] As Rangiah J observed in the Toowoomba Bypass Case the provisions considered in Powell and those the subject of consideration in the Toowoomba Bypass Case were arguably indistinguishable.[10]
Moreover, as Rangiah J also noted, on 19 April 2018, before the contravening conduct in which Mr Seiffert engaged, the CFMMEU conceded in the application for an injunction before Collier J (in the Bruce Highway Caloundra to Sunshine Upgrade Case in which Seiffert was a respondent), in circumstances relevantly indistinguishable from those in the Toowoomba Bypass Case, that the Commissioner had demonstrated a prima facie case of contravention of s 500 of the Act.
In these circumstances both the view of the CFMMEU and that of Mr Seiffert as to the effect of s 81(3) WHS Act was by no means certain. As Rangiah J observed, the CFMMEU therefore knew that its officials (including Mr Seiffert) were at risk of contravening ss 494(1) or 500 of the Act by entering the site without permits, or refusing to show their permits and refusing to leave the site when asked to do so.[11] Moreover, Mr Seiffert as a respondent in the Bruce Highway Caloundra to Sunshine Upgrade Case must also have known that he was at risk of contravening s 500 of the Act.[12]
It is relevant also that Rangiah J found that both the CFMMEU and relevantly Mr Seiffert knew that they were risking contravening s 500 of the Act but decided to engage in that conduct regardless of the risk.[13] Both the CFMMEU and Mr Seiffert could have avoided the risk of contravention by awaiting the outcome of Bruce Highway Caloundra to Sunshine Upgrade Case and by Mr Seiffert producing his entry permit in the meantime, even if he maintained that he was not required to do so. Instead, as His Honour noted, the CFMMEU and Mr Seiffert can be described as having “taken the odds”.[14] And as the Commissioner points out, correctly in my view, by reference to Universal Music Australia v Australian Competition and Consumer Commission[15], if a person “takes the odds”, the person must expect serious consequences if they miscalculate.[16] Here, one of those consequences is action taken under s 510(1).
Thirdly, though it might readily be accepted that Mr Seiffert has been disabused of the erroneous construction of s 81(3) of the WHS Act, has been directed by the CFMMEU to comply with Division 3 of Part 3-4 of the Act in relation to entries to premises under s 81(3) of the WHS Act and that he will not be likely to contravene Part 3-4 of the Act again on the basis of the incorrect understanding of s 81(3), there is nothing in the materials which would suggest that Mr Seiffert has learned to take a more risk averse approach to disputes about entry rights. Mr Seiffert produced no statement nor gave evidence in this proceeding. As I have already noted, prior to the contravening conduct in the Toowoomba Bypass Case, Mr Seiffert was a party to a proceeding in which interlocutory orders were made, requiring him to show his permits on a different site on each occasion on which he entered under s 81(3) of the WHS Act. He was thus on notice that his understanding of the law was not uncontroversial, that there was an alternative view and that the interlocutory orders, which concerned entry to a different site, was consistent with the alternative view.
Finally, that the contravening conduct occurred over 3 years ago, without more, is not a particularly weighty consideration. No action may be taken under s 510(1) until a triggering event. The process of litigation for a civil penalty and the imposition of a penalty will necessarily mean that there will be some not insignificant time that elapses between the contravening conduct and the triggering event. This will be so in a preponderance of matters with which the Commission is required to deal under s 510.
There is no evidence about any adverse impact that a revocation or suspension of the entry permit might have on the CFMMEU, its members or Mr Seiffert. There is no evidence about whether any training has been undertaken by Mr Seiffert since the contravening conduct nor is there evidence about general character evidence. This is not mentioned as a criticism, but simply as an observation with the result that such matters cannot not be weighed in the balance in assessing whether suspension would be harsh or unreasonable. For these reasons I am not persuaded, in the circumstances advanced by the CFMMEU and Mr Seiffert, that suspension of Mr Seiffert’s entry permit under s 510(1) of the Act would be harsh or unreasonable. I consider that suspension of Mr Seiffert’s entry permit in the circumstances of the triggering events is appropriate and is consistent with maintaining a balancing of rights and obligations between employees, registered organisations, occupiers of premises and employers and the protective and corrective purpose underpinning the exercise of power under s 510.
The Commissioner contends that the period of suspension should be three months. The CFMMEU and Mr Seiffert contend (in the event that I was against them on the s 510(2) grounds) that a suspension should be for the “the minimum period” which is three months. Taking into account the agreement as to the appropriate period of suspension and the circumstances of the contravening conduct discussed earlier, I consider that the period proposed by the parties is appropriate.
I therefore propose to suspend Mr Seiffert’s entry permit for a period of three 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 three months. Mr Seiffert is reminded of his obligation under s 517(1) to return the suspended permit to the Commission within 7 days of the date of this decision. At the end of the suspension period, the permit (if it has not expired) will be returned to Mr Seiffert on application by him or the CFMMEU.
Orders
I order:
1. Pursuant to s 510(1) the entry permit held by Beau Richard Seiffert is suspended for a period of 3 months commencing on the 10 February 2022;
2. Pursuant to s 510(5) I ban the issue of any further entry permit to Beau Richard Seiffert for a period of 3 months commencing on the 10 February 2022.
DEPUTY PRESIDENT
Written submissions:
CFMMEU, 28 October 2021 and 21 November 2021
Commissioner, 8 November 2021
[1] [2021] FCA 1128
[2] (2019) 292 IR 259
[3] [2015] FCAFC 56, 230 FCR 15, 321 ALR 248
[4] Ibid at [13]-[16]
[5] 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]
[6] Fair Work Commission v Stephen Long[2017] FWC 6867 at [25]
[7] Parker and others [2011] FWA 2577 at [26]-[28], [33] and [34]
[8] [2017] FCAFC 89, 251 FCR 470
[9] Ibid at [33]-[36], [56]-[61]
[10] [2021] FCA 1128 at [75 (5)(a)]
[11] Ibid at [75 (6)]
[12] Ibid at [75 (7)]
[13] Ibid at [77]
[14] Ibid at [80]
[15] [2003] FCAFC 193; (2003) 131 FCR 529
[16] Ibid at [303]
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