Mr Darren Roberts v Office of the Fair Work Building Industry Inspectorate T/A Fair Work Building and Construction
[2016] FWCFB 6696
•28 SEPTEMBER 2016
| [2016] FWCFB 6696 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Office of the Fair Work Building Industry Inspectorate T/A Fair Work Building and Construction
(C2016/1535)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 28 SEPTEMBER 2016 |
Appeal against decision [2016] FWC 4052 of Senior Deputy President O'Callaghan at Adelaide on 29 June 2016 in matter number RE2016/591.
[1] This decision concerns an appeal against a Decision 1 (Decision) and subsequent Order2 of Senior Deputy President O’Callaghan whereby, pursuant to s.510 of the Fair Work Act 2009 (the Act), he suspended Mr Roberts’ right of entry permit for four months from the date of the Decision, and prohibited the issue of any further right of entry permit over the same period. The Order was stayed without opposition by Senior Deputy President Drake on 11 July 2016.
[2] The appeal was listed before this Full Bench on Tuesday, 23 August 2016 in Sydney. Permission to appear was granted to the legal representatives of the parties prior to the listing. Mr Reitano of Counsel, with Mr Boncardo legal officer of the CFMEU, appeared for the CFMEU. Mr Mahendra of Counsel, instructed by Mr Keller of Clayton Utz, solicitors, appeared for the Director of the Office of Fair Work Building Industry Inspectorate (the Director). Both parties provided a written Submission and addressed those submissions at the hearing.
BACKGROUND
[3] Mr Reitano summarised the background to this appeal in the Appellant’s Outline of Submissions 3 and we have extracted that summary below.
“2. The background to the matter is fully set out in the Decision at [1] to [20] (AB201-212). The brief version of the background is as follows. The proceedings were initiated by O’Callaghan SDP of his own motion. They arose under s510 of the Fair Work Act 2009 (Cth) (Act) following a pecuniary penalty being imposed on Mr Roberts by White J sitting as the Federal Court of Australia. The penalty was imposed because Mr Roberts had contravened s500 of the Act on 30 October 2013. White J concluded that Mr Roberts had behaved improperly on a site controlled by the constructor Lend Lease and imposed a penalty of $2,200.00. The maximum penalty able to be imposed by the Court on Mr Roberts was $10,800.00.
3. In late 2013 O’Callaghan SDP on his own motion had initiated proceedings under s508 of the Act. Those proceedings considered, in so far as Mr Roberts was concerned, substantially the same facts and circumstances that gave rise to the contravention found and penalty imposed by White J. The only difference was in nomenclature with one styled as a ‘contravention’ and the other as a ‘misuse’. O’Callaghan SDP found that the relevant events giving rise to the misuses and the contravention were the same (AB213 at [27]).
4. On 13 June 2014, O’Callaghan SDP as result of the misuses found against Mr Roberts made an order that, amongst other things, suspended Mr Roberts’ permit under Part 3-4 of the Act for a period of 6 months on Lend Lease sites in South Australia [see [2014] FWC 3097]. This is referred in the Decision at [14] (AB209-211). The suspension of Mr Roberts permit was itself suspended on condition Mr Roberts not misuse rights under part 3-4 of the FW Act with respect to any building or construction site in South Australia controlled by Lend Lease.
5. The effect of this was, objectively viewed, a promise by the Commission to Mr Roberts that if he complied with the legal obligations imposed upon him as a permit holder no other action would be taken against him. It was in effect a ‘good behaviour bond’. Mr Roberts complied with the conditions that were imposed. Further, although of only tangential relevance, the s508 order required Mr Roberts to notify Fair Work Building and Construction (FWBC) if he sought entry to any Lend Lease site.
6. Mr Roberts had been an organiser with the CFMEU and held entry permits under both Federal and State industrial and/or work health and safety laws since 2001. Mr Roberts had an unblemished record as a permit holder and had never before or after 30 October 2013 contravened any industrial law. Mr Roberts had a good understanding of his rights and obligations as a permit holder and intended to do the best he possibly could to comply with his obligations as a permit holder moving forward. In fact, after the misuse on 30 October 2013, Mr Roberts of his own volition undertook further training which specifically dealt with the findings of misuse by him and others as found by the Full Bench of the Commission which had dealt with an appeal from a decision of O’Callaghan SDP.
7. Mr Roberts expressed regret for his actions on 30 October 2013 in an affidavit (AB136 to 178, especially AB138 at [28]) that was read in the hearing which was not subject to objection or challenge. Mr Roberts was not required for cross-examination and his evidence in this and all other respects was uncontested. Mr Roberts accepted that he had behaved on 30 October 2013 in a manner contrary to the standards expected of permit holders.
8. Mr Roberts’ case before O’Callaghan SDP, articulated in written and oral submissions, was that having regard to the totality of the circumstances, which were unique and peculiar, the Commission ought have been satisfied that any suspension or revocation was unreasonable under s510(2). It needs to be emphasised that it was not the case that any one circumstance or fact was of itself determinative and Mr Roberts was eager to point so much out to O’Callaghan SDP (see for example: AB195, PN129 to 134; and AB127 at [10]). Despite this, O’Callaghan SDP dissected the circumstances, considered them one at a time and (wrongly) treated some of the matters as having no relevance to the question of unreasonableness in the circumstances. Other matters put by Mr Roberts were ignored completely. To the extent that he did engage with Mr Roberts’ case, O’Callaghan SDP failed to state any of the grounds on which he relied to reject it and gave no reasons for rejecting it.”
PRINCIPLES GOVERNING AN APPEAL PURSUANT TO S.604 OF THE ACT
[4] This is an appeal for which permission is required pursuant to s.604 of the Act. The Fair Work Commission (the Commission) is required to grant permission to appeal if it is satisfied that it is in the public interest to do so, but the circumstances in which it may grant permission are not limited to situations in which the public interest requires it. 4 It has a residual discretion as to the grant of permission to appeal.
[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 Some of the considerations relevant to determining whether the public interest is attracted were identified by a Full Bench of the Commission in GlaxoSmithKline Australia Pty Ltd v Makin. Itidentified some of the considerations that may attract the public interest as follows:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 6
[6] It will rarely be appropriate to exercise the discretion in favour of the grant of permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 7 However, the mere identification of some error in the decision under appeal may not by itself constitute a sufficient basis for the grant of permission to appeal.8
[7] An appealable error in a decision involving the exercise of a discretion is an error of the kind identified in House v The King.
"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 9
[8] In Minister for Aboriginal Affairs v Peko-Wallsend and Others (Peko-Wallsend) 10 the High Court considered the implications on appeal of a failure by a decision maker to take into account a relevant consideration. Mason J (with whom Gibbs CJ and Dawson J agreed) identified the following principles:
● the ground of failure to take into account a relevant consideration can only be made out if the decision maker fails to take into account a consideration which he or she was bound to take into account;
● the factors a decision make is bound to consider is determined by construction of the statute conferring the discretion, and it will often be necessary to decide whether enumerated factors are exhaustive or merely inclusive;
● where a statute confers a discretion that is unconfined, the factors that may be taken into account (or not taken into account) are similarly unconfined except where there is a limitation implied by the scope and purpose of the statute;
● Not every consideration that a decision maker is bound to take into account, but fails to take into account, will justify the court setting aside the impugned decision. A factor may be so insignificant that the failure to take it into account could not have materially affected the decision 11;
[9] In relation to the proposition that it is generally a matter for the decision maker, and not the court, to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising statutory power, Mason J went on in that case to observe that:
“I say ‘generally’ because both principal and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance. The preferred ground on which this is done, however, is not the failure take into account relevant considerations or the taking into account of any irrelevant considerations, but that the decision is “manifestly unreasonable.” 12
CFMEU SUBMISSIONS
[10] Senior Deputy President O’Callaghan considered whether a suspension of Mr Roberts’ right of entry permit would be harsh, but Mr Reitano’s submission on behalf of Mr Roberts was that the imposition of a further suspension or penalty would be unreasonable.
[11] In his oral submissions Mr Reitano further submitted that the matrix of circumstances before Senior Deputy President O’Callaghan, when considered as a whole, did not support the proposition that it was reasonable to impose a period of suspension of Mr Roberts’ right of entry permit. It was not put before the Senior Deputy President, and it was not put before this Full Bench, that any one circumstance, considered separately, supported such a finding.
[12] Senior Deputy President O’Callaghan summarised the combination of circumstances relied upon by Mr Roberts in paragraph 18 of the Decision. Those circumstances (the included matters) are set out below.
“ Mr Roberts’ admission of certain of the contraventions addressed in the Court decisions,
• Mr Roberts’ compliance with right of entry obligations before and after the October 2013 events,
● The extent to which the s.508 Orders imposed a suspension of his entry rights which was itself, then suspended,
● The extent to which those s.504 Orders imposed additional obligations on him, with which he complied,
● The extent to which the events addressed in the Court decisions happened nearly three years ago,
● Section 510 should not be construed as a penalty provision but should be regarded as protective in the context of the role of the Court,
● Further suspension, or other action taken under s.510 would be unreasonable in that it would constitute a third “penalty” against Mr Roberts.”
[13] Mr Reitano submitted that Senior Deputy President O’Callaghan erred in that he did not take into account factors that he ought to have taken into account. These are the factors which were not in the list set out in paragraph 18 of the Decision (the excluded matters). In oral submissions Mr Reitano expanded upon a number of particular relevant matters.
An otherwise clear record
[14] Until the offence in 2013 Mr Roberts had had an entirely clear record. Since that offence there has been no other incident to give rise to the imposition of a penalty. These two aspects of Mr Roberts’ unblemished record were important circumstances in support of the submission that imposition of a penalty was unreasonable.
The likelihood of any reoffending by Mr Roberts
[15] It would be contrary to the objects of the Act, balancing the rights of all parties, and unreasonable to impose a further period of suspension on a permit holder who was unlikely to commit another offence. Given that Mr Roberts had not offended before or after the 2013 offence, his history of conduct was against the likelihood of his reoffending.
Mr Roberts accepted responsibility for his conduct, made admissions, was contrite and remorseful and accepted responsibility for his actions
[16] The uncontradicted evidence of Mr Roberts demonstrated his understanding of the offence, the standards required of a permit holder and his own failings in relation to that standard in 2013. He expressed regret for his conduct. He dealt with these issues in his affidavit at first instance. 13
Training in relation to right of entry matters
[17] Mr Roberts had undertaken training before the 2013 offence. After the 2013 offence he had engaged in further voluntary training. These are matters of which Senior Deputy President O’Callaghan was aware because of other proceedings. The Senior Deputy President referred to Mr Roberts’ uncontested evidence on this issue at paragraph 16 of the Decision where he quoted Mr Roberts’ affidavit as follows:
“41. I consider I have a good understanding of the right of entry regime and the obligations placed upon me.
42. My overall history as a permit holder shows that I understand my obligations as a permit holder and that except for on a single occasion I have complied with these obligations.
43. It is my intention to do my best to comply with all my right of entry obligations in the future.” 14
Compliance with penalties imposed
[18] In prior proceedings Mr Roberts had had a suspension suspended. He had been of good behaviour since then and ought not, there being no further breach, have had a further period of suspension applied. Mr Roberts had also had a condition imposed upon him to the effect that he would notify the Director before he exercised any right of entry on to Lend Lease sites. He had not breached that condition.
The lapse of time since the 2013 offence
[19] Mr Reitano conceded that this matter was not persuasive considered separately, but was a proper matter to be taken into account with all other matters.
[20] Some of the matters expanded upon by Mr Reitano were dealt with by Senior Deputy President O’Callaghan in the summary contained in paragraph 118 of the Decision. However, Mr Reitano submitted that the excluded issues, being a clear record prior to the 2013 offence and thereafter, Mr Roberts’ contrition and his training in the relevant area, were matters that ought to have been taken into account. He submitted that the excluded matters would have, when considered with the non-excluded matters, caused the Senior Deputy President to reach a different and more balanced conclusion.
SUBMISSIONS OF THE DIRECTOR
[21] At the appeal Mr Mahendra addressed the Director’s written submissions 15 . He submitted that the CFMEU had failed to establish that the Senior Deputy President’s reasoning was unintelligible, not supported by the evidence, illogical or irrational. It had not established that the outcome of the Senior Deputy President’s reasoning was unjust or unreasonable. He submitted that there is no error of law in the Decision and that permission to appeal should be refused and the appeal dismissed.
CONCLUSION
[22] We have considered the grounds of appeal addressed in the Notice of Appeal, the appellant’s written submissions and Mr Reitano’s oral submissions.
[23] Paragraph 118 of the Decision sets out particular matters relied upon by Mr Roberts and considered by Senior Deputy President O’Callaghan in his conclusion. This list of matters contains a reference to Mr Roberts’ compliance with right of entry obligations before and after the 2013 offence. We consider that it is clear that the matters identified in paragraph 118 were considered by His Honour. 16
[24] Mr Roberts’ contrition and his training in right of entry matters were not dealt with in paragraph 118. Mr Reitano submits that we should interpret the Decision of the Senior Deputy President as having excluded consideration of these matters and that we should consider paragraph 118 as setting out a comprehensive list of all matters considered by the Senior Deputy President. Mr Reitano also submits that any other reference in the Decision to the entirety of the circumstances surrounding this application cannot be intended to refer to circumstances other than the included matters particularly referred to in paragraph 118.
[25] We do not accept that submission. In the Decision we are satisfied that Senior Deputy President O’Callaghan was alert to and referred to the CFMEU’s submission that he should consider and take into account the entirety of the relevant circumstances. 17 In paragraph 23 Senior Deputy President O’Callaghan said:
“[23] As the Director has asserted, various other decisions have addressed some of the circumstances relied upon by Mr Roberts. I have considered each of these factors, but have particularly taken the entirety of the circumstances into account, consistent with Mr Roberts’ submissions in this regard.”
[26] We have considered the transcript before Senior Deputy President O’Callaghan. We are persuaded that when the Senior Deputy President referred to having “… particularly taken the entirety of the circumstances into account, consistent with Mr Roberts’ submissions in this regard”, he was referring to all the circumstances referred to and relied upon by the CFMEU on behalf of Mr Roberts in these and earlier proceedings. We do not accept that the Senior Deputy President was limiting himself to a consideration of the matters identified in paragraph 118. We are satisfied that in paragraph 23 Senior Deputy President O’Callaghan was referring to all matters relied upon by Mr Roberts as relevant, including the excluded matters and was referring to the full matrix of issues surrounding this application.
[27] We can identify no appellable error in the decision of the Senior Deputy President. We do not consider that Deputy President O’Callaghan failed to take into account or gave insufficient weight to a relevant consideration..
[28] If a Full Bench considers insufficient weight has been given to a relevant consideration it will still not substitute its decision for that of the decision maker at first instance, unless it can clearly conclude that, because of that insufficient weight, the decision maker’s discretion has been exercised wrongly.
[29] We are not persuaded that the Senior Deputy President’s discretion was exercised wrongly or that his Decision was manifestly unjust or unreasonable.
[30] For these reasons permission to appeal is refused, the appeal is dismissed and the Stay Order of 11 July 2016 is set aside.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr Reitano for the appellant.
Mr Mahendra for the respondent.
Hearing details:
Sydney
August
23
1 [2016] FWC 4052
2 PR581894
3 Exhibit CFMEU 1
4 Australian Commercial Catering Pty Ltd v Fair Work Commission [2015] FCAFC 189 at [61]
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46]
6 [2010] FWAFB 5343 at [27], 197 IR 266
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26] – [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
9 (1936) 55 CLR 499, at pp 504-505
10 (1985-86) 162 CLR 24.
11 Ibid at 39 – 41.
12 Ibid at 41.
13 Exhibit R1 PN28
14 Exhibit R2 PN41-43 before O’Callaghan SDP
15 Exhibit Respondent 2
16 [2016] FWC 4052 at para 25
17 Ibid at para 17
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