In the matters of the Entry Permits of Mr Paul Fitzpatrick and Mr Matthew John Clark
[2023] FWC 1189
•20 JUNE 2023
[2023] FWC 1189
The attached document replaces the document previously issued with the above code on 20 June 2023.
Date of orders at [15] corrected.
Associate to Deputy President Gostencnik
Dated 20 June 2023
| [2023] FWC 1189 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.510 - Upon referral, revoke or suspend an entry permit
In the matters of the Entry Permits of Mr Paul Fitzpatrick and Mr Matthew John Clark
(RE2023/303 and RE2023/304)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 20 JUNE 2023 |
In the matter of the Entry Permits of Mr Paul Fitzpatrick and Mr Matthew John Clark – whether action must be taken to revoke or suspend permits.
This decision deals with the action, if any, that should be taken under s 510 of the Fair Work Act 2009 (Act) in relation to entry permits held by Mr Paul Fitzpatrick and Mr Matthew John Clark (Permit Holders), who are officials of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) . On separate instances, detailed further below,[1] the Permit Holders have been found by a court to have contravened provisions in Part 3-4 of the Act and each has been ordered to pay a pecuniary penalty in relation to the contraventions. The circumstance in s 510(1)(d) is triggered for both Permit Holders and so consideration must be given to whether any action must be taken to revoke or suspend Mr Fitzpatrick’s and/or Mr Clark’s entry permits under s 510(1).
The relevant principles applicable to the exercise of power under s 510(1) are not in dispute. As I observed in In the matter of the Entry Permit of Mr Beau Richard Seiffert:[2]
“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.[3] 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]
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.[5]…”[6]
Mr Fitzpatrick
Mr Fitzpatrick’s current entry permit was issued on 13 October 2020.[7] On 23 May 2022 in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Pacific Highway Upgrade Case) (No 3)[8] Judge Humphreys found that Mr Fitzpatrick contravened s 500 of the Act at a building site on 22 August 2019 by engaging in conduct that was said to amount to intentionally hindering or obstructing. On 4 August 2023 in the penalty judgment[9] a penalty of $5,040 was imposed on Mr Fitzpatrick for his breach. However, the penalty order was stayed pending the filing of an appeal. The CFMMEU, Mr Fitzpatrick and the other respondent lodged an appeal against the liability decision and consequential orders. The Court has now dismissed the appeal in Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Pacific Highway Upgrade Case).[10]
The CFMMEU and Mr Fitzpatrick contend, having regard to the protective and corrective nature of the Commission’s jurisdiction under s 510, that there is no utility or necessity for an order revoking Mr Fitzpatrick’s permit or for an imposition of a suspension of more than the minimum three-month period. They contend that:
·While the contravening conduct was objectively serious, it was for a short period of time and in direct response to concerns about serious safety matters. It was not gratuitous behaviour or unprovoked, rather it was reactive. The contravening conduct needs to be viewed within context.
·Almost four years have passed since the contravening conduct occurred. Mr Fitzpatrick has not been found to have contravened the Act on any other occasion and his conduct should therefore be viewed as an aberration.
·Mr Fitzpatrick has completed further training since the contravening conduct. He was not directed to complete the further training; rather, upon learning that further training had been provided to Mr Rielly, Mr Fitzpatrick requested that the same training be provided to him.
·The Commission has never taken action against Mr Fitzpatrick under s.510(1).[11]
As Judge Humphreys noted, and I accept, Mr Fitzpatrick played a lesser role in the contraventions, and he has no previous history of contraventions of the Act. But there was also no evidence before the Court, nor any put before me, that Mr Fitzpatrick has exhibited any contrition or remorse. I accept that Mr Fitzpatrick has undertaken retraining. No submission is made that suspension or revocation would be harsh or unreasonable in the circumstances and so the exception in s 510(2) does not arise. And as there is no suggestion that the triggering circumstances applicable to Mr Fitzpatrick have been considered by the Commission on a previous occasion when acting under s 510(1), the exception in s 510(3) does not arise.
Consequently the issues requiring determination are whether the action taken should be a suspension or revocation of the permit, the period of any suspension, and the length of the associated ban period. I accept, considering the gravity of the contravening conduct, the retraining undertaken, the time that has passed since Mr Fitzpatrick engaged in the conduct, and the fact that he appears not to have engaged in any further contravening conduct, that suspension rather than revocation is the appropriate action to be taken. For the same reasons I do not consider that a period of suspension longer than the minimum suspension period in s 510(4)(a) is warranted. The ban period will correspond with the period of suspension that will be imposed.
Mr Clark
Mr Clark’s current entry permit was issued on 30 September 2021.[12] On 16 March 2023, in Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union(The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 3)[13] Collier J ordered Mr Clark (formerly known as Matthew Parfitt, the seventh respondent) to pay a pecuniary penalty of $10,000 (comprising $5,000 for each contravention for contraventions of s 497 and s 500 of the Act) on 13 and 17 April 2018.[14]
Mr Clark was found to have acted improperly whilst relying on s 81(3) of the Work Health and Safety Act 2011 (Qld) (WHS Act) to support entry to a workplace. 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 Clark refused to show his entry permit or to leave the site in accordance with requests by the occupier. His refusal was based on an erroneous, but found to be genuine and reasonable,[15] 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.
For the following reasons the CFMMEU and Mr Clark contend that it would be harsh or unreasonable to suspend or revoke Mr Clark’s permit:
·The contravening conduct was premised on an honest and reasonable mistake of law. It 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, had not been challenged.
·The contraventions were not serious, did not occasion any economic loss, and were not deliberate (in the sense of being knowingly unlawful). And Mr Clark believed (albeit erroneously) that what he was doing was lawful.
·Mr Clark has been disabused of the erroneous construction of s 81(3) of the WHS Act which undergirded the contraventions.
·Mr Clark has been directed by the Branch 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.
·The contravening conduct occurred over five years ago.
·There is no suggestion that Mr Clark engaged in further conduct of this kind upon becoming aware of the Court’s position. Unlike the circumstances the subject of In the matter of the Entry Permit of Mr Beau Richard Seiffert [2022] FWC 222, which also involved contravening conduct as a result of an honest and reasonable mistake of law insofar as s 81(3) of the WHS Act is concerned and resulted in a three month suspension of Mr Seiffert’s permit, Mr Clark did not continue to enter premises in accordance with the provision after Collier J granted the injunction.[16]
For the same reasons as outlined above, the CFMMEU and Mr Clark alternatively submit that it is appropriate for the Commission to impose the minimum suspension period available under s 510(4)(a) of the Act.
In the circumstances I accept that no protective and corrective purpose will be served by suspending or revoking Mr Clark’s permit by reason of the triggering event. His misapprehension about s 81(3) of the WHS Act has been corrected by the Bruce Highway litigation and reinforced by the union’s direction to him. Apart from contraventions of Part 3-4 premised on Mr Clark’s misunderstanding of s 81(3) of the WHS Act, there is no evidence that he has any susceptibility or proclivity to contravene or not comply with his obligations as a permit holder. I accept that Mr Clark’s history as a permit holder since 2015 indicates that the contrary is the case. I am satisfied that Mr Clark will exercise the rights and obligations of a permit holder found in Part 3-4 of the Act and in the circumstances, it would be unreasonable to suspend or revoke his permit. I consider that Mr Clark’s circumstances quintessentially demonstrate a case where suspension or revocation would not be reasonable or rational because of the absence of any protective and corrective purpose. Instead, a suspension or revocation of Mr Clarke’s entry permit in the circumstances would be punitive and nothing more. I am therefore satisfied that suspension or revocation would be unreasonable in the circumstances.
Since the condition for the exercise of my discretion in s 510(2) is made out I consider that taking no action in this case achieves the necessary balance of rights set out in the objects of Part 3-4 (s 480). I therefore do not propose to take any action in relation to Mr Clark’s permit.
Conclusion
For the reasons stated I propose to suspend Mr Fitzpatrick’s permit for a period of three months and to impose a corresponding ban period. Mr Fitzpatrick is reminded of his obligation under s 517(1) of the Act 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 Fitzpatrick on application by him or the CFMMEU.
I am also satisfied that it would be unreasonable in the circumstances to suspend or revoke Mr Clark’s entry permit. Consequently, I am not required, and for the reasons stated do not propose, to take any action under s 510(1) of the Act in relation to Mr Clark’s entry permit.
Order
I order:
1. Pursuant to s 510(1) of the Fair Work Act 2009 (Act) the entry permit held by Paul Fitzpatrick is suspended for a period of 3 months commencing on the 20 June 2023; and
2. Pursuant to s 510(5) of the Act I ban the issue of any further entry permit to Paul Fitzpatrick for a period of 3 months commencing on the 20 June 2023.
DEPUTY PRESIDENT
Determined on the papers
Submissions:
Mr Paul Fitzpatrick: 12 May 2023
Mr Matthew Clark: 12 May 2023
[1] Australian Building and Construction Commissioner vConstruction, Forestry, Maritime, Mining and Energy Union (Pacific Highway Upgrade Case) (No 3) [2022] FedCFamC2G 388 and Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union(The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 3) [2023] FCA 219
[2] [2022] FWC 222
[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] In the matter of the Entry Permit of Mr Beau Richard Seiffert [2022] FWC 222 at [12]-[14]
[7] RE2020/810
[8] [2022] FedCFamC2G 388
[9] Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Pacific Highway Upgrade Case) (No 4) [2022] FedCFamC2G 608
[10] [2023] FCA 202
[11] Submissions of the CFMMEU and Mr Fitzpatrick dated 12 May 2023 at 18-21
[12] RE2021/810
[13] [2023] FCA 219
[14] Ibid at [22]
[15] The Bruce Highway Caloundra to Sunshine Upgrade Case (No 3) [2023] FCA 219 at [22]-[25].
[16] Submissions of the CFMMEU and Mr Clark dated 12 May at 26-31
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