In the matter of the Entry Permit of Travis Brook
[2024] FWC 2411
•5 SEPTEMBER 2024
| [2024] FWC 2411 |
| 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 Travis Brook
(RE2024/789)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 5 SEPTEMBER 2024 |
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
Mr Travis Brook is employed as an organiser by the Construction, Forestry and Maritime Employees Union, Construction and General Division, South Australian Branch (CFMEU). Mr Brook is also currently the holder of an entry permit issued under s 512 of the Fair Work Act2009 (Cth) (Act).
On 5 July 2024, Justice O’Sullivan imposed a penalty of $7,200 on Mr Brook for a contravention of s 500 of the Act which occurred on 31 August 2021 when Mr Brook acted in an improper manner whilst exercising rights in accordance with Part 3-4 of the Act by entering an exclusion zone when requested not to do so.[1] O’Sullivan J found that the CFMEU was liable as an accessory to Mr Brook’s contravening conduct and imposed a penalty of $53,460 on the CFMEU.
This decision concerns whether I should revoke or suspend Mr Brook’s entry permit pursuant to s 510 of the Act.
Mr Brook and the CFMEU filed an outline of submissions, together with a witness statement made by Mr Brook on 20 August 2024, which I have read, considered and taken into account.
Initial matters
Mr Brook 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 Penalty Judgment. Accordingly, the Commission must revoke or suspend Mr Brook’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]
Because the Commission has not previously taken action under s 510(1) against Mr Brook, 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 Brook’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 Brook 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 CFMEU and Mr Brook
Mr Brook and the CFMEU submit that:
(a)it would be harsh or unreasonable to suspend or revoke Mr Brook’s entry permit; and
(b)alternatively, the Commission should suspend his entry permit for the minimum three month period prescribed by s 510(4) of the Act.
Mr Brook’s contravening conduct
On 31 August 2021, Mr Brook and another CFMEU permit holder attended a worksite occupied by Mossop Group Pty Ltd (Mossop) at the Yatala Labour Prison in Northfield, South Australia. Construction works were being performed at the site to reinforce prison infrastructure. Additional cell blocks were also being built. Mr Brook entered the site by exercising the right conferred on him by s 117 of the Work Health and Safety Act 2012 (SA) to investigate suspected contraventions of work health and safety legislation. The suspected contraventions were set out on entry notices supplied to Mossop.
In the course of exercising entry rights, Mr Raymount and Mr Brook entered a building at the site known as ‘Building E’. When they entered the building, no exclusion zone was in place. A concrete pour was scheduled to occur in Building E. Mr Raymount and Mr Brook raised an issue about the adequacy of stretcher access to the pour area with a representative of Mossop. The representative thought the issue had been attended to and authorised the concrete pour to occur.
They then walked through Building E and towards its exit and reached an exclusion zone which was blocked off by a water filled plastic orange barrier and a steel barrier. The Building E exclusion zone was in place to protect people from entering the area as welding was being conducted above it causing sparks to fly in the area. Mr Raymount lifted the steel barrier and entered this exclusion zone with Mr Brook. As they were doing so, a representative from Mossop said to them in words to the effect that the area was an exclusion zone and they needed to come back. Mr Raymount and Mr Brook each refused to comply with the Building E exclusion zone request and remained in the Building E exclusion zone for no more than 20 seconds. In so acting, Mr Brook acted in an improper manner whilst exercising rights in accordance with Part 3-4 of the Act and therefore contravened s 500 of the Act. By operation of ss 793 and 550 of the Act, the CFMEU was knowingly concerned in Mr Brook’s contravention and taken itself to have contravened s 500 of the Act.
Justice O’Sullivan made the following relevant observations and findings in determining to impose a penalty on Mr Brook:
(a)Mr Brook’s contravening demonstrated he was prepared to ignore reasonable health and safety requirements at the site when it suited him;
(b)the area entered by Mr Brook was one where hot works were being undertaken. The entry was at best irresponsible and at worst demonstrative of a complete disregard of his safety and others who may have been likely distracted;
(c)the contravening conduct was significant but brief, and deliberate rather than inadvertent;
(d)a penalty in the medium range was appropriate for objectively serious conduct that had the potential to result in injury to Mr Brook and his colleague as well as others;
(e)the conduct was reckless and irresponsible and was within the medium range and the consequences of Mr Brook and his colleague’s actions could have been far worse; and
(f)a discount of 10% should be provided to Mr Brook in light of his admission to the contravening.
Suspension harsh or unreasonable?
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]
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]
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 Brook and the Union
Mr Brook and the Union submit that suspension or revocation of Mr Brook’s right of entry permit would be harsh or unreasonable for the following reasons.
First, Mr Brook admitted his contravening and accepts responsibility for it. He accepts that his conduct should not have occurred and that he ought not to have entered the exclusion zone.
Secondly, Mr Brook regrets and has insight into his contravening. He has read and considered the Penalty Judgment and considered Justice O’Sullivan’s comments and findings. He accepts full responsibility for his contravening and regrets it unequivocally.
Thirdly, Mr Brook has participated in directed and focused training to ensure he does not contravene s 500 in the future. Mr Brook participated in right of entry training with Brian Lacy AO on 24 October 2023. Mr Lacy is a highly experienced employment and industrial relations advocate and former jurist. During the training, Mr Lacy explained to Mr Brook:
(a)the requirements of ss 499 and 500 of the Act, including what is meant by improper conduct and what kind of conduct could be considered improper;
(b)how it was imperative that Mr Brook comply with all conditions of the entry permit including s 499 of the Act in relation to occupational health and safety requirements that are reasonable and apply to a worksite; and
(c)how future contraventions of ss 499 and 500 could be avoided.
Following the training and O’Sullivan J’s judgment, Mr Brook says that he has further reflected upon and now has an even greater understanding of how his conduct on 31 August 2021 contravened s 500 of the Act. He attests to having thought deeply about his contravening conduct and knowing that it was improper.
Fifthly, Mr Brook is committed to complying with his obligations as a permit holder moving forward and has committed to the Commission that he will do so. He says that he is committed to complying with s 499 of the Act and not acting improperly in contravention of s 500 of the Act.
Sixthly, a significant period has elapsed since the contravening and Mr Brook has not re-contravened. Whilst the effluxion of time is not, in and of itself, particularly probative of whether a suspension or revocation will be harsh or unreasonable, a not insubstantial period of unimpeachable conduct by a permit holder is relevant to an assessment of whether the contravening was aberrant and whether any protective or corrective purpose would be served by the imposition of a suspension or revocation. In the present case, Mr Brook had not committed any further contraventions in circumstances where his evidence is that he exercises entry rights 10-15 times a week. At the time the CFMEU’s submissions were filed, some 1,085 days have elapsed since this contravening, being about 155 weeks. Mr Brook admitted (and was penalised) for contraventions of ss 499 and 500 of the Act which occurred post the conduct the subject of the Penalty Judgment which occurred on 15 December 2021, some 979 days ago and some 139 weeks. This was the last occasion Mr Brook did not comply with his obligations.
Presuming Mr Brook works 48 weeks a year, this number should be reduced down 134 weeks. Mr Brook has, therefore, exercised entry rights between 1,340 - 2,010 times since 15 December 2021. It is submitted that this underscores the aberrant nature of the contravening and the fact that Mr Brook is unlikely to re-contravene. It is also significant that Mr Brook’s contravening occurred when he was a relatively new and inexperienced organiser.
Seventhly, revocation or suspension of Mr Brook’s permit would cause prejudice to his duties as an organiser and the operations of the South Australian Branch of the CFMEU. The branch presently has six permit holders. It follows that suspending or revoking Mr Brook’s entry permit is likely to have the effect of limiting the organisation’s representation of members in the future. Mr Brook accepts responsibility for the invidious position his contravening has put the South Australian Branch in. This is a further matter pointing to the Commission having confidence that he will comply with his obligations moving forward.
While Mr Brook’s responsibilities are not limited to one industry, he is responsible for representing CFMEU members and employees whose industrial interests the CFMEU is entitled to represent in regional areas such as Whyalla and across the civil and commercial construction industries. Members in these sectors will be impacted by Mr Brook no longer being able to conduct his basic duties as an Organiser. Mr Brook is, accordingly, most concerned that he will not be able to do his job properly without an entry permit.
Mr Brook is acutely conscious of this and accepts responsibility for this potential state of affairs. Prejudice to Mr Brook’s capacity to fulfil his responsibilities and prejudice to the CFMEU and its members is, it is accepted, not itself a matter that establishes harshness or unreasonableness. However, combined with Mr Brook’s consciousness of this potential reality, regret for it and commitment to comply with his obligations moving forward the Commission can be confident that he will comply with his obligations as a permit holder into the future.
In the circumstances, it is submitted that a suspension or revocation of Mr Brook’s entry permit will not have any protective effect.
Finally, it is noted that a penalty of $4,500 was imposed on Mr Brook for a contravention of ss 499 and 500 of the FW Act in FWO v Brook [2024] FCA 262 by Justice Snaden in relation to conduct that occurred on 15 December 2021. A penalty was imposed on the CFMEU of $40,000 as it was found liable as an accessory to Mr Brook’s contravention. The imposition of these penalties led to proceeding RE2024/595 which were discontinued by the Commission as the Commission ceased to have jurisdiction due to the expiry of Mr Brook’s then permit.
Mr Brook and the CFMEU accept that the findings and conclusions in this matter are relevant to the exercise of the discretion under s 510(2) and any decision to suspend or revoke Mr Brook’s permit. However, it is contended that they should not bear appreciable weight in light of the fact Snaden J made the following salient observations and findings in determining to impose a penalty one-third of the applicable maximum on Mr Brook:[6]
(a)Mr Brook’s contravening , when assessed by itself, was at the lower or middle range of seriousness;
(b)Mr Brook had made some attempt to comply with what he knew was applicable in that after he entered the site, he comported himself appropriately;
(c)Mr Brook’s contravention was of short duration;
(d)Mr Brook had not previously contravened the Act;
(e)Mr Brook had participated in remedial and preventative training; and
(f)Mr Brook had made admissions which bespeak an acceptance of wrongdoing on his part.
Further, it is submitted that Mr Brook’s evidence in this proceeding indicates that he regrets this contravening, has insight into it and is committed to not repeating it. He has complied with his obligations for a substantial and sustained period post 15 December 2021.
Consideration
I accept that the matters summarised in paragraphs [16] to [29] above provide some weight in support of the argument that a suspension of Mr Brook’s entry permit would be harsh and unreasonable. However, my evaluative assessment is that a suspension of Mr Brook’s entry permit would not be harsh or unreasonable in the circumstances.
Mr Brook’s contravening conduct on 31 August 2021 was objectively serious, as demonstrated by the imposition of a penalty in the medium range. Further, Mr Brook puts himself forward as a man who its motivated to ensure that employers in the construction industry are not able to cut corners on safety in the interests of saving money and getting the job completed quickly.[7] Yet, on 31 August 2021, after attending the site because of safety concerns, Mr Brook followed Mr Raymount into an exclusion zone. Mr Brook remained in the exclusion zone (for no more than 20 seconds) after a representative from Mossop said to them in words to the effect that the area was an exclusion zone and they needed to come back. There was no proper basis or reason for Mr Brook to act in this way. He should not have required additional training to understand that his conduct in this regard was improper and in contravention of his obligations as an entry permit holder.
Although the CFMEU will be inconvenienced by a suspension of Mr Brook’s entry permit for three months, it can deploy its resources to ensure that its members are adequately protected and represented during the period of Mr Brook’s suspension. The evidence does not demonstrate that Mr Brook will lose his employment with the CFMEU if his entry permit is suspended for three months.
Mr Brook’s inexperience as an official of the CFMEU at the time he engaged in his contravening conduct on 31 August 2021 does not excuse his conduct. The concept of not entering an exclusion zone on a work site when requested not to do so is not complex, nor does it require experience to appreciate the risks of refusing to comply with such an instruction.
Having regard to all the circumstances, including the nature of the improper conduct the subject of Mr Brook’s contravention of s 500 of the Act, and balancing the rights of organisations to represent their members in the workplace and the rights of employees to receive, at work, information and representation from officials of organisations with the rights of the occupiers of premises to go about their business without undue inconvenience, I am satisfied that a suspension of Mr Brook’s right of entry would not be unreasonable or harsh. I consider that a three month suspension would be protective and corrective, but not penal. I am also satisfied that a suspension (rather than a revocation) and ban for a period of three months would be appropriate in all the circumstances.
Conclusion
For the reasons set out above, I will make an order that Mr Brook’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 Brook for the same period.
DEPUTY PRESIDENT
[1] Fair Work Ombudsman v CFMMEU (The Yatala Labour Prison Case) (No 3) [2024] FCA 732 (Penalty 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] Fair Work Ombudsman v Brook [2024] FCA 262 at [21] – [25]
[7] Witness statement made by Mr Brook on 20 August 2024 at [11]
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