Paul Taylor

[2021] FWC 4333

[2021] FWC 4333

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Paul Taylor
(RE2021/644)

DEPUTY PRESIDENT COLMAN MELBOURNE, 21 JULY 2021

Application for a right of entry permit for Mr Paul Taylor

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application under s 512 of the Fair Work Act 2009 (Act) for the issuance of a right of entry permit to Mr Paul Taylor.

[2] The Australian Building and Construction Commissioner (ABCC) was informed of the application but did not wish to be heard. The CFMMEU filed a written submission in support of its application and advised that it was content for the Commission to determine the application on the papers. I consider it appropriate to do so.

[3] Section 512 of the Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation, if it is satisfied that the official is a ‘fit and proper person’ to hold the entry permit. The Commission’s discretion to issue an entry permit must be exercised having regard to the ‘permit qualification matters’ set out in s 513(1) of the Act. That section provides as follows:

“513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law;

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.”

[4] The materials filed by the CFMMEU in support of the application for the grant of an entry permit to Mr Taylor attested to the following matters:

•  Mr Taylor has never been convicted of an offence against an industrial law (s 513(1)(b));

•  Mr Taylor has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, fraud, dishonesty, intentional use of violence against another person or intentional damage or destruction of property (s 513(1)(c));

•  save as specified below, Mr Taylor has not been ordered to pay a pecuniary penalty under the Act or any other industrial law in relation to action taken by him (s 513(1)(d));

•  save as specified below, Mr Taylor has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s 513(1)(e)); and

•  Mr Taylor has not had a State or Territory entry permit cancelled, suspended or made subject to conditions, nor has he been disqualified under State or Territory laws from exercising or applying for an entry permit (s 513(1)(f)).

[5] The CFMMEU also provided to the Commission a certificate of achievement that it had issued to Mr Taylor to certify that on 19 January 2021 he completed the course ‘Federal Right of Entry’, which appears to me to be appropriate training for the purpose of s 513(1)(a).

[6] The declarations submitted by the CFMMEU make disclosures in relation to the permit qualification matters referred to in ss 513(1)(d) and (e). In relation to the permit qualification matter in s 513(1)(d), the declarations note that on 2 October 2020 the Federal Court declared that Mr Taylor had, on 14 May 2018, contravened s 500 of the Act on two occasions by acting in an improper manner while exercising, or seeking to exercise, entry rights at a site in Farrar in the Northern Territory where Sitzler Pty Ltd (Sitzler), the occupier of the site, was constructing the Palmerston police station(Australian Building and Construction Commissioner v Menon and others [2020] FCA 1418).

[7] First, the Court declared that Mr Taylor had contravened s 500 by saying to a representative of Sitzler words to the effect of ‘You’re in breach of safety and you will be held responsible if you do not shut the site’, and ‘You’re in breach and you will pay the price if you don’t shut the site’ (first contravention). Secondly, Mr Taylor was declared to have contravened s 500 by repeatedly demanding of a Sitzler representative that Sitzler shut the site down, when there was no requirement or obligation on Sitzler to do so (second contravention). The Court ordered Mr Taylor to pay pecuniary penalties of $3,000 in respect of the first contravention and $2,200 in respect of the second contravention. The Court also declared that, by reason of ss 793 and 550 of the Act, the CFMMEU had contravened s 500 of the Act on two occasions by virtue of the conduct of Mr Taylor, and imposed pecuniary penalties on the union in respect of those contraventions in the amounts of $30,000 and $25,000 respectively.

[8] In relation to the permit qualification matter in s 513(1)(e), the declarations acknowledge that on 29 January 2021, as a result of the proceedings referred to above, the Commission issued a decision revoking Mr Taylor’s permit pursuant to s 510(1) of the Act. The Commission also imposed a ban under s 510(5) of the Act on the issue of a further entry permit to Mr Taylor for a period of 4 months (Paul Taylor [2021] FWC 431). The four month period expired on 1 June 2021.

[9] The CFMMEU contended that the only permit qualification matters that would weigh against the granting of a permit to Mr Taylor were those in s 513(1)(d) and (e), and that various factors should be taken into account in assessing the significance of these matters. First, the union emphasised that White J had found that Mr Taylor had reasonably suspected that a contravention was occurring of the Work Health and Safety Act 2011 (Qld) and that Mr Taylor had otherwise entered the site in question in a lawful manner. The union submitted that Mr Taylor held legitimate safety concerns, and that his contravening conduct was not capricious but genuine, albeit disproportionate and unlawful.

[10] Secondly, the CFMMEU submitted that the penalty imposed on Mr Taylor amounted to some twenty percent of the maximum penalty available, that there were no significant aggravating circumstances such as abuse or damage to property, and that the conduct was isolated and limited to a brief outburst made by Mr Taylor to the representative of Sitzler. The union submitted that the two contraventions were minutes apart and were found by his Honour to have comprised a single course of conduct. Mr Taylor did not physically interfere with any work being performed and there was no evidence of any loss or damage suffered as a consequence of Mr Taylor’s contravening conduct.

[11] Thirdly, the CFMMEU noted that Mr Taylor and the union had admitted the conduct during mediation and cooperated in the proceedings, which it said was indicative of insight into the seriousness of the conduct, and that Justice White had noted that, whilst Mr Taylor’s conduct was serious, it was mitigated by the utilitarian value of his cooperation in the proceedings.

[12] Fourthly, the CFMMEU submitted that the Commission should take into account that Mr Taylor had not been found to have contravened the Act before the conduct that was the subject of the proceedings before White J, that the contravening conduct occurred over 3 years ago, and that there has been no further contravening conduct by Mr Taylor since that time.

[13] Fifthly, the CFMMEU submitted that the revocation of Mr Taylor’s permit and the four-month ban imposed by the Commission on the issue of a new permit has had the effect that Mr Taylor has now been prevented from exercising entry rights for over six months, and that this was a significant punishment. It submitted that the Commission could readily infer that this had instilled in Mr Taylor an enhanced appreciation of the importance of compliance with the right of entry provisions in the Act.

[14] The CFMMEU submitted that the Commission could be satisfied that Mr Taylor’s contravening conduct in 2018 was a once-off, isolated incident which will not be repeated, and that Mr Taylor is a fit and proper person to hold a permit.

Consideration

[15] I do not agree that the Commission’s decision to impose a four month ban on the grant of a new permit to Mr Taylor was in the nature of punishment. My decision of 29 January 2021 made clear that proceedings under s 510 are not punitive in nature, as the court has already determined and ordered punishment for relevant contraventions, and punishment is not ordinarily a function of an arbitral body (at [23]).

[16] In my decision of 29 January 2021, I noted that the Commission’s function under s 510 should be understood as being protective and corrective in nature (at [23]). I stated, at [32], that I considered a ban period that exceeded the minimum period in s 510(6)(b) to be likely to have a more reliable corrective effect and provide a surer basis for the Commission to be confident that the contravening conduct will not recur, and hence have a protective effect. Consistent with that view, and taking into account all of the material before me, including the fact that Mr Taylor had not previously engaged in contravening conduct and has not done so since the incident that was the subject of the proceedings before White J, I consider that it is not likely that Mr Taylor will engage in contravening conduct in the future.

[17] In the present case, the permit qualification matters in s 513(1)(a), (b), (c), and (f) weigh in favour of granting the application. As to the permit qualification matters in s 513(1)(d) and (e), the fact that Mr Taylor was ordered to pay a penalty under the Act, and that his permit was revoked, weigh against the granting of a permit. However, these matters are moderated by the considerations I have identified above. I note that the Commission’s imposition under s 510(5) of the ban on a new permit being issued to Mr Taylor for a four month period is not referable to a permit qualification matter. In all the circumstances, I am satisfied that Mr Taylor is a fit and proper person to hold an entry permit.

[18] I therefore exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Taylor with an entry permit. The application is granted and an entry permit will be issued to Mr Taylor separately.

DEPUTY PRESIDENT

Determined on the papers

Written submissions of the CFMMEU: 20 July 2021

Printed by authority of the Commonwealth Government Printer

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