In the matter of the Entry Permit of Mr James John William Simpson
[2022] FWC 2074
•8 AUGUST 2022
| [2022] FWC 2074 |
| 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 James John William Simpson
(RE2021/1027)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 8 AUGUST 2022 |
Revocation/suspension of entry permit of Mr James John William Simpson
A right of entry permit was issued to Mr James John William Simpson pursuant to s 512 of the Fair Work Act 2009 (Act) on 6 February 2020. Mr Simpson is an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2)[1] Snaden J imposed pecuniary penalties on Mr Simpson and the CFMMEU for contraventions of ss 499 and 500 of the Act in respect of conduct in which Mr Simpson engaged on 29 and 30 April 2017, and on 9 May 2017 at a road construction site (Project site) occupied by Fulton Hogan Construction Pty Ltd (Fulton Hogan). The finding of a s 500 contravention by Mr Simpson on 9 May 2017 and the penalty imposed on him (and the CFMMEU) in relation to that contravention were set aside by the Full Court of the Federal Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Monash Freeway Widening Case).[2] In the result, the Court imposed penalties on Mr Simpson and the CFMMEU for the ss 499 and 500 contraventions on 29 and 30 April 2017 in the amounts of $3,240 and $21,600, respectively.
As to the contravening conduct, in the evening of Saturday, 29 April 2017 and the early morning of Sunday, 30 April 2017, Mr Simpson exercised at the Project site a State or Territory OHS right. While doing so he failed to comply with reasonable requests that he abide by occupational health and safety requirements that applied at the Project site, in contravention of s 499 of the Act and he acted in an improper manner in contravention of s 500 in that he contravened s 499, refused multiple Fulton Hogan demands that he vacate the Project site and by his presence and conduct, diverted the attention of multiple Fulton Hogan managers from the tasks upon which they would otherwise have been focused.
The imposition of the pecuniary penalties on Mr Simpson and the CFMMEU for contraventions of ss 499 and 500 of the Act which are found in Part 3-4, are events which occurred since Mr Simpson was issued with his entry permit and thus enliven the Commission’s jurisdiction pursuant to s 510(1)(d) of the Act in respect of that entry permit. The proceeding under s 510(1) 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 17 September 2021 that he intervenes in the proceeding pursuant to s 110 of the BCIIP Act.
Action to suspend or revoke the entry permit held by Mr Simpson must be take 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 is not the case. I am 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 499, 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.
The proper approach to the exercise of the powers in s 510 is not seriously in contest. 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 permit would be harsh or unreasonable, but the exercise of that discretion is naturally affected by the nature, scope and purpose of the enactment which confers it. To that end, 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,[3] taking into account the overall object of Part 3-4 – the balancing of the rights of various stakeholders therein identified. 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.[4] 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 may be 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.[5] Whether there has been any expression of remorse or contrition for the contravening conduct may also be relevant. But these matters are not an exhaustive list of considerations that may in a given case be relevant.
The contravening conduct in which Mr Simpson engaged occurred in the following circumstances:
· The road construction project at issue is known as the Monash Freeway upgrade project which principally consisted of the addition of lane capacity along the freeway corridor between Warrigal and Koo Wee Rup Roads, south-west of Melbourne.[6] Fulton Hogan had been engaged by VicRoads as the principal contractor to undertake the freeway works.[7]
· The contravening conduct in which Mr Simpson was found to have engaged on the evening of 29 April and the early morning of 30 April 2017 occurred in the vicinity of where the Freeway crossed the Eumemmering Creek, in Endeavour Hills, Victoria. There, works were being undertaken to install a lane to each of the east and west bound corridors of the Freeway and the construction of a third bridge over Eumemmering Creek, which required the installation of support pylons and prefabricated ‘cross heads’ that would sit on top of the pylons and act as the supports on which the widened road would sit.[8]
· The installation of the ‘cross-heads’ was scheduled to take place in the late evening of 29 April and early morning of 30 April 2017. The out-bound lanes of the Freeway were closed to allow the works to take place.[9]
· On 29 and 30 April 2017 Mr Simpson attended at the Project site and exercised a State or Territory OHS right and exercised or sought to exercise a right or rights in accordance with Part 3-4 of the Act. Fulton Hogan required that those in attendance at the Eumemmering Creek Site area of the Project site wear safety glasses and full-length, white reflective overalls and required that visitors in attendance be escorted at all times by Fulton Hogan personnel. When Mr Simpson arrived at that Project site, he was asked to (or told that he must) observe these requirements. The Court concluded that these requests were reasonable, and that Mr Simpson did not comply with those requests, in that he remained at the Project site despite not wearing safety glasses or full-length, white reflective overalls and he moved about the Project site unescorted by Fulton Hogan personnel. Having failed to comply with the requests, Mr Simpson exercised, or continued to exercise, a State or Territory OHS right, and Mr Simpson conducted himself improperly in the course of exercising, or seeking to exercise, rights in accordance with Part 3-4 of the Act.[10]
In assessing and determining the appropriate penalty to be imposed on Mr Simpson, Snaden J observed that:
· Mr Simpson’s conduct on 29 and 30 April 2017 was deliberate.[11]
· Mr Simpson knew that that his conduct contravened occupational health and safety requirements that applied at the site—he was told as much.[12]
· He arrogated unto himself a right to elevate his own concerns above the obviously more important measures that Fulton Hogan had put in place at the Project site to ensure that works could progress there safely.[13]
· Although Mr Simpson’s safety concerns were genuinely held, those concerns lent themselves to investigation in ways that did not require his attendance at the Project site in contravention of applicable occupational health and safety protocols.[14]
· Mr Simpson’s conduct throughout the episode left much to be desired. Despite understanding that he was not permitted to venture around the Project site unescorted—and despite agreeing with the police that he would not venture away from the water-filled barriers at the top of the Creek Access Ramp—he did precisely that.[15]
· At one point, Mr Simpson walked down the Creek Access Ramp toward some workers who were working at or near the western shore of the creek and announced to them that the barges upon which they were to work were unsafe and that they were “risking their lives by working on them”. The workers to whom those representations were directed appeared to dismiss them as overblown theatre. Regardless, the statements bore no obvious connection with any of the concerns that had brought Mr Simpson to the site in the first place, nor with any right of entry that he was apparently there to exercise. Rather, Mr Simpson appears to have felt entitled to take it upon himself to venture as he pleased and to make outlandish accusations under the guise of safety. He did not have any such entitlement. That Mr Simpson acted as he did whilst in knowing breach of applicable safety protocols beggars belief.[16]
· On another occasion, Mr Simpson took it upon himself to venture up on to the road deck to speak with the operator of the mobile crane that had been (or was being) set up there. Again, he made no attempt to even pretend to comply with his obligation not to wander unescorted from where he was. Instead, he made a conscious decision to strut around the site like he owned it.[17]
· In these respects, Mr Simpson’s conduct at the Project site was objectively very serious. He arrogantly assumed for himself a right to determine with which of Fulton Hogan’s occupational health and safety requirements he would comply. He knowingly contravened occupational health and safety protocols that were in place. Despite professing to be there to ensure that work was carried out safely, he put himself and others at risk. His conduct was reckless and conceited.[18]
· There were mitigating circumstances:
o Mr Simpson’s conduct was less grave than it could have been. Although he did not wear full-length, white reflective overalls, he did wear a fluorescent-orange safety vest and the Project site the site was well lit. Had he not worn anyhigh-visibility clothing, his conduct would have been all the more serious.[19]
o Mr Simpson’s failure to wear full-length, white reflective overalls been a product of the fact that neither he nor anybody from Fulton Hogan had any for him to wear on the evening in question.[20]
o The Court was not persuaded that Mr Simpson knew that he was not entitled to remain at the Project site given his inability to comply with the occupational health and safety requests. Section 499 of the Act prohibited his exercise of the State or Territory OHS right that he exercised there. Section 499 does not require compliance with all occupational health and safety-related requests. Instead, it requires compliance with reasonable requests. Mr Simpson’s contravention is not in the same category as, for example, freedom of association (or “no ticket, no start”) contraventions, which typically admit of no nuance or “wriggle room” as to what the requirements of the law are. By their nature, the requirements of ss 499 and 500 of the Act are susceptible to debate.[21]
o Mr Simpson was not alive to the fact that his conduct or continued presence at the Project site contravened the Act. His insistence on remaining after he was told of the applicable occupational health and safety requirements (and after he was asked to leave for want of satisfying them) was the product of his mistaken belief that he was entitled to remain.[22]
o Mr Simpson was inexperienced, having begun work as an organiser of the CFMMEU approximately three months prior to the contravening conduct. Had Mr Simpson been a more experienced official, it might have been easier to conclude that he was possessed of greater knowledge about the statutory requirements and, therefore, that he knew that his conduct was offensive to them.[23]
o When Mr Simpson attended at the Project site on 29 and 30 April 2017, he was animated by concerns that he had about the safety practices that were in place there. For the purposes of his contravention of s 500 of the Act, the Court accepted that that is a circumstance that renders his conduct less serious than it might have been had it been animated by less pure motives.[24]
o Mr Simpson was not alive to the fact that his conduct or continued presence at the site contravened the Act. His insistence on remaining after he was told of the applicable occupational health and safety requirements (and after he was asked to leave for want of satisfying them) was the product of his mistaken belief that he was entitled to remain. That, in turn, informs the Court’s assessment of the gravity of his conduct.
o Mr Simpson’s conduct at the Project site on 29 and 30 April 2017, although serious, was apparently of little practical moment. Mr Simpson’s conduct would have been all the more serious—and more deserving of sterner penalty—had it materially interfered with the work that was to be transacted when he engaged in it. That circumstance properly informs the Court’s assessment of the gravity of his misconduct.[25]
o Mr Simpson undertook training provided by Mr Brian Lacy AO, an experienced barrister and former Senior Deputy President of the forerunner to this Commission, which was said to establish some effort on the part of the Mr Simpson and the CFMMEU to understand the limits of statutory entry powers and to ensure that they are not breached in the future.[26] Mr Simpson’s apparent willingness to undertake the training speaks to the deterrent effect that the setting of penalties must strive to achieve. And the CFMMEU, having organised the training, should be understood to have exhibited a desire to ensure that Mr Simpson and its other organisers conduct themselves lawfully in the future.[27]
o The training that Mr Lacy administered can only be seen as a welcome development; and as one that reflects well on the CFMMEU for organising it and on Mr Simpson for agreeing to undertake it. It reflects an acknowledgment of wrongdoing—of a problem requiring corrective action.[28]
In summary, the CFMMEU contends that suspension or revocation of Mr Simpson’s entry permit will be harsh or unreasonable in the circumstances as a suspension or revocation will not serve any protective or corrective purpose. This is because:
· the contravening conduct in which Mr Simpson engaged was premised on a mistaken belief by Mr Simpson that he was entitled to engage in the conduct he engaged in at the site on 29-30 April 2017. Mr Simpson has now been well and truly disabused of the misapprehension which underpinned his contravening;
· following the Court’s findings of contravention in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case), Mr Simpson undertook training with Mr Lacy which was corrective and remedial action and directed to ensuring that Mr Simpson was apprised of his obligations as a permit holder, the reasons his conduct contravened ss 499-500 of the Act and the means by which he could ensure he adhered to his obligations as a permit holder in the future;
· Mr Simpson understands why his conduct on 29-30 April 2017 was contrary to the obligations imposed by ss 499-500 of the Act and regrets that he acted in the manner he did;
· Mr Simpson was, at the time of the contravening, an inexperienced organiser and permit holder. He is a far more experienced organiser and permit holder now and, importantly, has not been found to have contravened his obligations under Part 3-4 of the Act in the over 5-year period since 29-30 April 2017;
· Mr Simpson is committed to complying with his obligations under Part 3-4 of the Act moving forward.
The Commissioner contends that the appropriate action to be taken under s 510(1) of the Act is to suspend Mr Simpson’s entry permit for a period of 3 months, and that there be a ban on the issue of any further entry permit to Mr Simpson for the same period. The Commissioner contends that I should not accept that the contentions advanced by the CFMMEU have the result a suspension of Mr Simpson’s entry permit would harsh or unreasonable.
As should be evident from the Court’s reasons for judgment in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2), Mr Simpson’s contravening conduct was objectively very serious[29] and his conduct was reckless and conceited.[30] His conduct was deliberate, he did not comply with the requests that he comply with Project site occupational Health and safety requirements and he knew he was breaching the requirements.[31] The Court concluded that these requests were reasonable.[32] But the mitigating circumstance identified by the Court[33] were relevant in assessing the overall gravity of the contravening conduct.
The Court accepted that Mr Simpson was not alive to the fact that his conduct or continued presence at the Project site contravened the Act and that his insistence on remaining after he was told of the applicable occupational health and safety requirements (and after he was asked to leave because he did not satisfy the requirements was the product of his mistaken belief that he was entitled to remain on the Project site. It is also plain that the Court accepted that Mr Simpson’s relative inexperience was a factor that contributed to that mistaken belief. That is not to say that a mistaken belief or his inexperience entitled Mr Simpson to act as he did and to remain on the Project site. The better course, particularly for an inexperience official, when asked to comply with an OHS requirement and challenged about remaining on site without complying would be to seek advice before acting as though he was entitled to not comply and to remain on site. So much is accepted by Mr Simpson, as his evidence discussed further below demonstrates. But his inexperience and mistaken belief are factors relevant to assessing the overall gravity or seriousness of the contravening conduct in which Mr Simpson engaged as are the other mitigating factors identified by the Court and which I have earlier set out.
In my assessment, the gravity of the conduct in which Mr Simpson engaged is a matter that weighs against a conclusion the action taken under s 510(1) would be harsh or unreasonable, but I accept the CFMMEU’s contention that having regard to the mitigating factors which the Court assessed as relevant to the overall gravity of the contravening conduct that the particular circumstances of the contravening conduct do not militate appreciably against such a conclusion.
Mr Simpson gave evidence in this proceeding,[34] and he was cross examined.[35] Mr Simpson has worked in the construction industry since he was 15 years of age. He is a bricklayer by trade and commenced employment with the CFMMEU as an organiser in early 2017, some three months before he engaged in the contravening conduct. After the Court delivered judgement in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case), Mr Simpson undertook remedial training with Mr Lacy at the suggestion of the CFMMEU. Mr Simpson’s evidence detailed the training that he received from Mr Lacy, which covered not only entry rights training but was directed to enhancing Mr Simpson’s appreciation of why his conduct contravened ss 499 and 500 of the Act.
Mr Simpson gave evidence that he regretted his conduct on 29-30 April 2017. He said that his contravening could easily have been avoided if he had complied with the occupational health and safety requirements that Fulton Hogan had imposed. And although he thought at the time that he was entitled to do what he did, he now appreciates, particularly after the Court proceedings and the training with Mr Lacy, that he was wrong. The acknowledgement and acceptance of wrongdoing on Mr Simpson’s part is not newly found. As Snaden J observed agreeing to undertake and undertaking the training that reflects well on Mr Simpson. It reflects an acknowledgment of wrongdoing and of a problem requiring corrective action. Moreover, that he contested the proceedings commenced by the Commissioner (and noting that he was successful in some respects at first instance and in another on appeal), is not to diminish the sincerity of his express acceptance of wrongdoing. In another context, but not less apt, in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2),[36] the Full Court observed that:
It is in the nature of an exercise of judicial power that an outcome has a clarity in hindsight that it may not have in prospect.[37]
Mr Simpson’s evidence was that he has done his best to ensure that he learned from his mistakes and that he complies with his obligations as a permit holder including under ss 499-500. He said that the silver lining of the Court proceedings and Mr Lacy’s training is that he is now much better equipped to ensure he does not put himself in the kind of situation he did on 29-30 April 2017 again. Mr Simpson said that a result of having undertaken training with Mr Lacy, he is better equipped to avoid situations that could result in him departing from his obligations as a permit holder in the future. He said that he has used what he and Mr Lacy discussed during the training session to ensure that he complies with his obligations as a permit holder and that he will continue to do so. He said that he would seek advice when in doubt or challenged about the exercise of his entry powers. Mr Simpson appears also to be using his learned experience in the national office of the CFMMEU “to help young organisers across the country to not do what [he] has done”.[38]
I accept this evidence. Mr Simson has expressed regret for his contravening conduct and accepts that he was wrong. He has undertaken remedial training aimed at increasing his understanding of the operation of Part 3-4 of the Act and why his conduct contravened ss 499 and 500. Mr Simpson is now a far more experienced official. He has not committed the same errors of judgment, nor has he been found to have engaged in any other contravening conduct, nor am I aware of any proceeding involving Mr Simpson or the CFMMEU in which it is alleged that Mr Simpson has engaged in contravening conduct. I am satisfied on the evidence that Mr Simpson has taken on board the lessons he learned during his training with Mr Lacy and those arising from the Court proceedings. Given these considerations, I am satisfied that the training undertaken by Mr Simpson and his stated and to date exhibited commitment to complying with his obligations as a permit holder mean that I can have confidence he will continue to comply with his obligations and seek advice where he is not certain or is challenged, without further incident. These matters weigh in favour of a conclusion that taking action would be unreasonable in the circumstances.
There is no suggestion that taking action in relation to Mr Simpson’s permit will impact in any material way the CFMMEU or its members. Plainly Mr Simpson would be impacted insofar as his capacity to enter workplaces would be affected, but there is no suggestion that he would suffer some other prejudice such as the loss of his employment.
The considerations discussed above do not weigh in the same direction but taking into account the protective and corrective in nature of the exercise of power under s 510(1) and the overarching object of Part 3-4 which results in the exercise of powers and functions in s 510 in a manner which achieves the necessary balance between the rights mentioned in s 480, I am persuaded that the combination of matters related to Mr Simpson’s subsequent conduct, his acceptance of wrongdoing and his contrition or expression of regret, the training he has undertaken and his desire and determination to operate within the limits of his entry powers, and the assurance that he will comply and seek advice when in doubt, which all weigh in his favour outweigh the seriousness of the contravening which occurred sometime ago, and at a time of relative inexperience.
In all the circumstances, suspension or revocation of Mr Simpson’s entry permit would not be reasonable or rational because of the absence of any protective and corrective purpose and the fact that in my opinion, the necessary balancing of competing rights identified in s 480 of the Act has in my view been achieved though the corrective action undertaken by Mr Simpson, his acceptance of wrongdoing, the corrective training undertaken and his commitment to not engage, nor to put himself in a position where he might engage in any further contravening conduct.
In the result, I am not required, and for the reasons stated I do not propose to take any action under s 510(1) of the Act in relation to Mr Simpson’s entry permit.
DEPUTY PRESIDENT
Appearances:
Mr P Boncardo of Counsel for the CFMMEU and Mr Simpson
Mr M Garozzo of Counsel for the ABCC
Hearing details:
2022
Melbourne
14 July
[1] [2021] FCA 1101
[2] [2022] FCAFC 59
[3] 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]
[4] Fair Work Commission v Stephen Long[2017] FWC 6867 at [25]
[5] Parker and others [2011] FWA 2577 at [26]-[28], [33] and [34]
[6] Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union(The Monash Freeway Widening Case) [2020] FCA 1727 at [6]
[7] Ibid at [5]
[8] Ibid at [10]-[11]
[9] Ibid at [12]
[10] Ibid at [86]
[11] Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union(The Monash Freeway Widening Case) (No 2) [2021] FCA 1101 at [17]
[12] Ibid
[13] Ibid
[14] Ibid
[15] Ibid at [18
[16] Ibid at [19]
[17] Ibid at [20]
[18] Ibid at [21]
[19] Ibid at [22]
[20] Ibid at [23]
[21] Ibid at [24]-[27]
[22] Ibid at [28]
[23] Ibid at [29]
[24] Ibid at [30]-[32]
[25] Ibid at [33]
[26] Ibid at [49]
[27] Ibid at [55]
[28] Ibid at [59]
[29] Ibid at [21]
[30] Ibid
[31] Ibid at [17]
[32] Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union(The Monash Freeway Widening Case) [2020] FCA 1727 at [86]
[33] Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union(The Monash Freeway Widening Case) (No 2) [2021] FCA 1101 at [22]-[33]
[34] Exhibits 1 and 2
[35] Transcript PN33-PN145
[36] [2015] FCAFC 97; (2015) 230 FCR 337
[37] Ibid at at 345, [19]
[38] Transcript PN18, PN140-PN141
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