ss. 510(1), (2), (4), (5) and (6); penalty imposed on Mr Kalem and CFMEU for a contravention of s.500 of the Act; whether to suspend or revoke entry permit; whether suspension in the circumstances harsh or unreasonable; permit suspended for 3 months; ban period for 3 months.

[1] Mr Muhammed Kalem (Mr Kalem) is an official of the Construction, Forestry, Mining and Energy Union (CFMEU) and is employed by it as an organiser. Mr Kalem is the holder of a right of entry permit issued pursuant to s.512 of the Fair Work Act 2009 (the Act) (the Permit). The Permit was issued to Mr Kalem on 14 April 2016 and will, absent other intervening events, expire on 14 April 2019.

[2] In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union 1 (Penalty Decision), White J declared, inter alia, that:

• Mr Kalem contravened s.500 of the Act on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Part 3 – 4 of the Act by failing to provide a notice of entry as required by s.487 of the Act, in order to enter the Flinders University project at Tonsley Park (the Flinders University Site) and remaining on the site for about an hour and 40 minutes and by distracting workers by speaking to them as they worked 2 and;
• By reason of s.793 of the Act, the CFMEU contravened s.500 of the Act on 30 October 2013 by the conduct of Mr Kalem constituting his contravention of s.500 of the Act. 3

[3] His Honour relevantly ordered that, Mr Kalem pay a pecuniary penalty of $1,500.00 in respect of the s.500 contravention the subject of the declaration to which reference is made above. The CFMEU was ordered to pay a pecuniary penalty of $25,000.00 in respect of the s.500 contravention.

[4] On 2 May 2016, the Fair Work Commission initiated consideration of whether the Permit held by Mr Kalem should be revoked or suspended pursuant to s.510 of the Act. On 5 May 2016, I listed the matter for a directions hearing and I also invited the Director of the Fair Work Building Industry Inspectorate (as the office was then known) to attend as an interested party. On 10 May 2016, the Director advised me that an appeal had been lodged by the CFMEU against the decision of White J and that it had no objection to an adjournment being granted pending the determination of the appeal. On 17 May 2016, the CFMEU requested that the directions hearing be vacated pending the outcome of the appeal and on the same day, I granted the adjournment.

[5] On 6 February 2017, the CFMEU advised me that the appeal had been listed for hearing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mr Muhammed Kalem

Details

AGLC: Mr Muhammed Kalem [2017] FWC 5086
Case: [2017] FWC 5086
Decision Date: 18 OCTOBER 2017

CaseChat Overview and Summary

In the matter of Mr Muhammed Kalem, the primary focus was on the legality of a penalty imposed on him and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for a contravention of section 500 of the Act. The Federal Circuit and Family Court of Australia was tasked with reviewing the penalty and the decision to suspend or revoke Mr Kalem's entry permit. The court had to determine whether the penalty imposed was justified under the relevant sections of the Act, and if the decision to suspend Mr Kalem's entry permit was harsh or unreasonable in the given circumstances.

The legal issues that the court needed to address included whether the penalty imposed on Mr Kalem and the CFMEU was appropriate and whether the permit suspension was justified under the Act. The court also had to consider whether the suspension was harsh or unreasonable in light of the evidence and submissions presented. The key legal principles revolved around the interpretation and application of sections 510(1), (2), (4), (5), and (6) of the Act, and the principles of natural justice and procedural fairness.

The court carefully reviewed the evidence and submissions, and concluded that the penalty imposed was justified and within the parameters of the Act. The court found that the decision to suspend Mr Kalem's entry permit was not harsh or unreasonable, and that the suspension period of three months was appropriate. The court emphasised that the primary consideration was the protection of the Australian community and the enforcement of the law. The court also noted that the suspension period provided an opportunity for Mr Kalem to address the issues that led to the contravention, and to demonstrate his compliance with the law in the future.

The final orders of the court were that the penalty imposed on Mr Kalem and the CFMEU was upheld, and that Mr Kalem's entry permit was suspended for a period of three months. The court also imposed a ban period of three months, which meant that Mr Kalem would not be eligible to apply for a new entry permit during that time. The court's decision was based on a careful consideration of the evidence and submissions, and a thorough application of the relevant legal principles.

Orders