Mark Travers
[2011] FWA 7247
•21 OCTOBER 2011
[2011] FWA 7247 |
|
DECISION |
Fair Work Act 2009
s.510 - Upon referral, revoke or suspend an entry permit
Mark Travers
(RE2011/3434)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT | MELBOURNE, 21 OCTOBER 2011 |
Consideration as to whether action to be taken by Fair Work Australia under s.510 following decision of the Federal Magistrates Court in Gregor v CFMEU & Anor [2011] FMCA 562 - revocation or suspension of entry permits - exception where harsh or unreasonable.
[1] This matter relates to action to be taken by Fair Work Australia under s.510 of the Fair Work Act 2009 (FW Act) in circumstances where a permit holder has been ordered to pay a pecuniary penalty in relation to a contravention of the right of entry provisions.
[2] On 22 July 2011 the Federal Magistrates Court of Australia (Reithmuller FM) in Gregor v CMFEU & Anor [2011] FMCA 562 ordered inter alia that a penalty of $1,000 be imposed upon Mr Mark Travers, an elected organiser with the CFMEU, for conduct contravening s.767(1) of the Workplace Relations Act 1996 (WR Act).
[3] The application before the Court was made by an Australian Building and Construction Inspector. The facts of the matter relating to Mr Travers (the second respondent in the proceedings) are set out in the judgment of the Court as follows:
“[3] .. the second respondent breached s.767(1) of the Act on 24 February 2009 at the Melbourne Airport Tullamarine construction project (‘the site’) by entering onto the site, without authorisation, for a stop work meeting with workers on the site. The second respondent then refused to leave, despite repeated requests by management to do so, and swore at management. The total duration of the breach appears to have been of approximately 25 minutes.”
[4] In considering the penalty imposed upon Mr Travers for the contravention, the Court noted:
“[20] In the scheme of things it seems to me to be significant that this was a relatively minor contravention. It occurred over a short period of time and involved a relatively small number of workers. The absence of any penalties imposed against the second respondent for breaches under the Act is also significant.”
[5] In the circumstances, the Court decided to impose a penalty of $1,000 on Mr Travers. It is noted that the maximum penalty provided for a contravention of s.767(2) of the WR Act by an individual is 60 penalty units 1.
[6] Section 510 of the FW Act requires that FWA revoke or suspend an entry permit if a pecuniary penalty has been imposed in relation to a relevant contravention by the permit holder. An exception is provided in s.510(2) where FWA is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.
[7] In the present matter it is not contested that the order of the Federal Magistrates Court provides an appropriate basis for the operation of s.510. However it was submitted that the revocation or suspension of Mr Travers’ entry permit would be “harsh or unreasonable in the circumstances”. In this regard, statements were provided to FWA from Mr Ralph Edwards, Divisional State President of the Victorian Divisional Branch of the CFMEU and from Mr Travers. In addition, several character references were provided.
[8] When the present matter was called on for mention and directions, a representative of the Australian Building and Construction Commissioner (ABCC) appeared and indicated that any submissions it made would be to the effect that the penalty placed on Mr Travers by the Federal Magistrates Court was sufficient and that the ABCC did not see this as a basis to revoke or suspend the permit. This submission was later confirmed by the ABCC in a letter dated 19 October 2011.
[9] I have followed the same approach in consideration of this matter as was adopted in Re Parker & Others [2011] FWA 2577.
[10] Having regard to the contravention committed by Mr Travers, the training undertaken by him in relation to entry rights and the position taken by the ABCC, I am satisfied that it would be unreasonable to suspend or revoke his entry permit. In reaching this conclusion I have also taken into account that Mr Travers has been an organiser with the CFMEU since 2003 and has not previously been found to be in breach of right of entry provisions of the FW Act or other legislation.
SENIOR DEPUTY PRESIDENT
Appearances:
T. Roberts of the CFMEU for Mr Mark Travers.
Hearing details:
2011.
Melbourne:
October 21.
1 A penalty unit is presently around $110 per unit.
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