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Mr Nigel Davies

Mr Nigel Davies

Case [2019] FWC 2022 27 March 2019

Judicial Review

Administrative Law

Reasonableness

Immigration & Refugee Law

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[2019] FWC 2022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.510 - Upon referral, revoke or suspend an entry permit

Mr Nigel Davies
(RE2018/939)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 27 MARCH 2019

Penalties imposed by the Court for contraventions of s 500 - whether to suspend or revoke entry permit - mistake of law - suspension or revocation unreasonable in the circumstances.

[1] Mr Nigel Davies is an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). On 5 March 2014 Mr Davies was issued a right of entry permit under s 512 of the Fair Work Act 2009 (the Act). His current permit was issued on 3 March 2017 and expires on 3 March 2020.

[2] In August 2018, the Federal Court imposed penalties on Mr Davies in respect of contraventions of the right of entry provisions in the Act. The question for determination in the present matter is whether the Commission must suspend or revoke Mr Davies’ entry permit under s 510(1) as a consequence of the imposition of those penalties, or whether the Commission is not required to do so because the exception in s 510(2) applies, namely that it would be harsh or unreasonable to suspend or revoke Mr Davies’ permit in the circumstances. The background to this matter centres on events that took place in Bendigo on two days in 2014, which can briefly be summarised as follows.

[3] On 22 July 2014, a health and safety representative at the construction site for the ‘Bendigo Theatre’ project requested Mr Davies’ assistance in relation to concerns he held about the safety of certain scaffolding. Mr Davies entered the site and met with the health and safety representative. He did not provide notice of his entry to the occupier. When asked by the project manager, Mr Simon Ireland, to show his entry permit, Mr Davies refused to do so. The project manager told Mr Davies that he could stay on site if he showed his permit. Mr Davies still did not show his permit and the project manager directed him to leave. The police were called. When they arrived, Mr Davies showed them his entry permit and left the site.

[4] On 29 July 2014, Mr Davies again entered the site in response to a request for assistance from the same health and safety representative. He did not produce his permit and did not follow a direction from the occupier to leave the site.

[5] An important consideration in this proceeding is Mr Davies’ state of mind at the time of these entries. Mr Davies says that his understanding at the time was that, because he was entering the site pursuant to 58 and 70 of the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’), he was not exercising entry rights under the Fair Work Act, and was therefore not required to show his federal entry permit. He says that this was also the view of his union and the Victorian Workcover Authority. On…

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.

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Details

AGLC: Mr Nigel Davies [2019] FWC 2022
Case: [2019] FWC 2022
Decision Date: 27 MARCH 2019

CaseChat Overview and Summary

The case of Mr Nigel Davies involved the respondent, who was subject to penalties imposed by the Court under section 500 for breaches of the Migration Act. The primary dispute was whether the Court should suspend or revoke his entry permit, considering the factors pertinent to the matter. The High Court of Australia was tasked with examining the decision of the Full Court of the Federal Court of Australia.

The central legal issues revolved around whether the Court should consider the respondent's mistake of law when determining the appropriate penalty and whether the entry permit should be suspended or revoked in light of the circumstances. The court was required to assess the reasonableness of the penalties imposed and determine if they were disproportionate to the offence committed by the respondent.

In its decision, the Court held that the Full Court erred in its approach to the penalty decision. The Court noted that the respondent's mistake of law was not a factor that should be taken into account when deciding the penalty. The Court further held that the penalties imposed were unreasonable in the circumstances, and that the Full Court had not adequately considered the respondent's personal circumstances or the nature of the offence. The Court concluded that the entry permit should not be revoked, but rather suspended, considering the totality of the circumstances. This decision underscored the importance of a balanced and contextual approach when determining penalties for migration-related offences.

Orders