In the matter of the Entry Permit of Stephen Barry Parker
[2022] FWC 734
| [2022] FWC 734 |
| 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 Stephen Barry Parker
(RE2022/67)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 1 APRIL 2022 |
In the matter of the Entry Permit of Mr Stephen Barry Parker – whether action must be taken to revoke or suspend permit – no triggering event under s 510(d) – no action required.
Mr Stephen Barry Parker is an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to whom an entry permit was issued on 11 January 2022.[1] On 31 January 2022, in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union[2] (Next DC P2 Project Case) Banks-Smith J declared that the CFMMEU contravened s 500 of the Fair Work Act 2009 (Cth) (Act) on 5 October 2019 and imposed a penalty of $18,000 on the CFMMEU. The CFMMEU’s contravention was the consequence of the operation of ss 550 and 793 of the Act and the attribution to it of the conduct and state of mind of its official, Mr Parker.
Proceedings against Mr Parker had been discontinued by the Australian Building and Construction Commissioner (Commissioner) and the Court did not make declarations of any contravention by Mr Parker. Moreover, Mr Parker did not make any admission to a contravention, and he was not a party to the agreed facts tendered in the proceedings.
A question has arisen whether in the circumstances, action must be taken to revoke or suspend Mr Parker’s entry permit pursuant to s 510(1) of the Act by reason of the triggering event described in paragraph (d) thereof. I directed the CFMMEU and invited the Commissioner to file submissions addressing the question. The Commissioner did not file any submissions.
I do not consider that the circumstances described in s 510(1)(d) of the Act have happened by reason of the judgment in the Next DC P2 Project Case. Consequently, no action is required in relation to Mr Parker’s permit. My reasons for the conclusion are briefly stated below.
Section 510(1)(d) sets out one of the events that will require the Commission, subject to ss 510(2) and (3), to revoke or suspend an entry permit held by a permit holder. In terms, s 510(1)(d) describes the event as:
“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”
It appears from a textual consideration of the above provision, that there must as a minimum be a finding or declaration made by a court of a “contravention” by the permit holder of a provision of Part 3 – 4 of the Act, in relation to which this the permit holder or another person has been ordered to pay a pecuniary penalty.
Contextually, this appears consistent with some other triggering events in s 510(1) which require the permit holder to have been “found” to have contravened s 503(1) of (s 510(1)(a)), to have “contravened” s 504 (s 510(1)(b), to have a complaint against the permit holder “substantiated” by the Information Commissioner under the Privacy Act 1988 (s 510(1)(c). Moreover, where a triggering event does not require a finding or declaration of a “contravention” different language is adopted (see ss 510(1)(e) and (f)).
The description of the triggering event in s 510(1)(d) stands in contradistinction to the description of the permit qualification matter in s 513(1)(d). That permit qualification matter is concerned with “whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official”.
Both provisions may be engaged when another person has been ordered to pay a penalty because of conduct of the permit holder or official. But whereas the triggering event requires the conduct to be “a contravention” by the permit holder, the permit qualification matter requires only the imposition of the penalty in relation to conduct described as “action” by the official. Plainly the legislature has drawn a distinction between the circumstance under s 510(1)(d) requiring the other person to have been ordered to pay a pecuniary penalty in relation to a contravention by the permit holder, and s 513(1)(d) requiring the imposition of a penalty on the other person in relation to action taken by the official. A range of broader conduct will fall into the noun “action” than will fall within the noun “contravention”.
In the Next DC P2 Project Case the conduct the subject of the admitted contravention by the CFMMEU arose out of actions taken by Mr Parker. Specifically, the Court declared as follows:
On 5 December 2019, the respondent (CFMMEU), by operation of ss 550 and 793 of the Fair Work Act 2009 (Cth) (FW Act), contravened s 500 of the FW Act by reason of its permit holder, Mr Stephen Barry Parker, whilst exercising his entry rights in accordance with Part 3-4 of the FW Act at the NEXT DC P2 Project located at 105 Lord Street in Perth, Western Australia (Site), acting in an improper manner by:
(a)remaining on Site without an escort by a Multiplex representative; and
(b)not complying with requests by Multiplex employees to move from where he was standing when the Multiplex employees were unloading doorframes from a truck.
The action taken by Mr Parker described above in relation to which a penalty under the Act was imposed on the CFMMEU clearly engages with the permit qualification matter in s 513(d). But as there is no finding or declaration that Mr Parker contravened s 500 it does not in my opinion result in a triggering event described s 510(1)(d).
Consequently, no action is required to be taken in relation to Mr Parker’s permit under s 510(1) of the Act.
DEPUTY PRESIDENT
[1] Re Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch[2022] FWC 41; PR737412
[2] [2022] FCA 37
Printed by authority of the Commonwealth Government Printer
<PR739935>
0
0
0