Paul Taylor

[2021] FWC 431

[2021] FWC 431

FAIR WORK COMMISSION

DECISION

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

Paul Taylor
(RE2020/1012)

DEPUTY PRESIDENT COLMAN MELBOURNE, 29 JANUARY 2021

Revocation or suspension of entry permit under s 510.

[1] Mr Paul Taylor is an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). On 28 March 2018 Mr Taylor was issued a right of entry permit under s 512 of the Fair Work Act 2009 (the Act). The permit expires on 28 March 2021. This decision concerns whether the Commission must revoke or suspend Mr Taylor’s permit under s 510(1)(d) and, if so, for what period a ban should be imposed on the issue of any further permit to Mr Taylor.

[2] Section 500 of the Act provides that a permit holder exercising, or seeking to exercise, rights in accordance with Part 3-4 of the Act (which concerns right of entry) must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

[3] On 2 October 2020, the Federal Court made declarations 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. 1

[4] 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.

[5] 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.

[6] Acting on its own initiative under s 510 of the Act, the Commission commenced matter RE2020/1012 to determine whether Mr Taylor’s permit should be revoked or suspended under that section as a consequence of penalties having been imposed on him by the Court. The Commission also commenced action under s 510 in respect of another CFMMEU official, Mr Arturo Menon, who in the same proceedings was found to have contravened s 500. Each party’s submissions in the s 510 matter concerning Mr Menon were similar in certain respects to its submissions in the matter concerning Mr Taylor. The present decision therefore bears certain resemblances to the decision that concerns Mr Menon’s matter.

[7] Mr Taylor is represented by the CFMMEU. The Australian Building and Construction Commissioner (ABCC) gave notice to the General Manager of the Commission pursuant to s 110 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) that he was intervening in the matter. On 18 November 2020, the Commission issued directions for the parties to file and serve submissions and materials. The parties complied with the directions. They requested that the Commission determine the matter on the papers. Having read the submissions I consider that it is appropriate to do so.

Statutory Framework

[8] Section 510 of the Act relevantly provides as follows:

“When the FWC must revoke or suspend entry permits

(1) The FWC must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that any of the following has happened since the first of those permits was issued: …

(d) the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of this Part by the permit holder; …

(2) Despite subsection (1) the FWC is not required to suspend or revoke an entry permit under paragraph (1)(d) or (f) if the FWC is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.

(3) Subsection (1) does not apply in relation to a circumstance referred to in a paragraph of that subsection if the FWC took the circumstance into account when taking action under that subsection on a previous occasion.

Minimum suspension period

(1) A suspension under subsection (1) must be for a period that is at least as long as the period (the minimum suspension period) specified in whichever of the following paragraphs applies:

(a) If the FWC has not previously taken action under subsection (1) against the permit holder – 3 months;

(b) If the FWC has taken action under subsection (1) against the permit holder on only one occasion – 12 months;

(c) If the FWC has taken action under subsection (1) against the permit holder on more than one occasion – 5 years.

Banning issue of future permits

(1) If the FWC takes action under subsection (1) it must also ban the issue of any further entry permit to the permit holder for a specified period (the ban period).

(2) The ban period must:

(a) begin when the action is taken under subsection (1); and

(b) be no shorter than the minimum suspension period.”

[9] It is relevant to note that the object of Part 3-4 of the Act, set out in s 480, is to establish a framework for officials of organisations to enter premises that will balance the rights of various persons: the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of the Act, OHS laws and industrial instruments; the right of employees to receive, at work, information and representation from officials of organisations; and the right of occupiers of premises and employers to go about their business without undue inconvenience.²

Submissions

[10] The ABCC submitted that the entry permit of Mr Taylor should be revoked and that a ban should be imposed on the issue of further permits to Mr Taylor for a twelve month period.

[11] The ABCC contended that the Commission should have regard to particular observations of White J made in the course of determining the appropriate pecuniary penalties to impose on Mr Taylor. In relation to Mr Taylor’s conduct generally, the ABCC pointed to the following observations of his Honour:

•  The respondents are entitled to some credit for their cooperation in the proceedings. I refer in this respect to the extensive admissions in the amended defence and the manner of the conduct of the proceedings thereafter. The extent of the credit to which the respondents would be entitled would be greater if it was accompanied by genuine contrition and regret, but even in the absence of those factors, the respondents’ cooperation has a utilitarian value in the facilitation of the course of justice.” (at [99])

•  There is no evidence of any contrition or regret by any of the respondents for their conduct. Apart from the formal admissions in the pleadings, there has been no acknowledgement by any of the respondents of the wrongfulness of their conduct. Absence of contrition or regret is not an aggravating factor but the respondents are not entitled to any leniency on this account.” (at [98])

[12] The ABCC submitted that, in respect of the first contravention, the Commission should have regard to the following statement of White J:

•  ... it occurred shortly after the arrival of Mr Moran at the Site at around 11.45 am on 14 May 2018. It was constituted by Mr Taylor’s statements to Mr Moran that “you need to shut the Site”. This was a continuation of the conduct comprising Mr Menon’s third contravention, albeit directed to Mr Moran. I impose a penalty of $2,200.” (at [110])

[13] Regarding the second contravention, the ABCC submitted that the Commission should have regard to the following statement of White J:

•  [The contravention] “...followed a few minutes later when he told Mr Moran “you will pay the price if you don’t shut the site”. As is the case in relation to Mr Menon, this was improper conduct of a serious kind. After making allowance for the mitigatory matters mentioned above and for the place of Mr Taylor’s actions in the course of conduct, I impose a penalty of $3,000.” (at [111])

[14] The ABCC contended that a twelve month ban period was appropriate having regard to the following matters:

•  The nature of Mr Taylor’s conduct being defiant, deliberate, prolonged and not unintentional or accidental;

•  Mr Taylor’s lack of contrition and his failure to take corrective action to avoid further contraventions or make a statement of determination to ensure that he will comply with his legal obligations in the future; and

•  The need for the Commission to uphold the statutory regime that only fit and proper persons have an entitlement to hold entry permits, and that conduct found to breach the right of entry regime will not be tolerated.

[15] The ABCC further submitted that a twelve month ban would adequately balance the competing rights in Part 3-4 of the Act, and that such an order would be appropriate having regard to other decisions of the Commission made under s 510, including In the matter of the Entry Permit of Blake Patrick Hynes[2020] FWC 97; Fair Work Commission v Stephen Long[2017] FWC 6867; Fair Work Commission v Darren Roberts [2016] FWC 4052; Director of the Fair Work Building Industry Inspectorate v Vink [2016] FWC 2512; Director of the Fair Work Building Industry Inspectorate v Perkovic[2015] FWC 4062; and Director of the Fair Work Building Industry Inspectorate v Smart[2015] FWC 3656.

[16] The CFMMEU recognised that the Commission is required to take action under s 510 in respect of Mr Taylor’s permit and did not contend that suspension or revocation would be ‘harsh or unreasonable’ for the purpose of s 510(2). It submitted however that the Commission should suspend, rather than revoke Mr Taylor’s permit, and that the period of suspension and the associated ban on issuing a new permit should be the minimum period of three months.

[17] The CFMMEU submitted that the Commission’s jurisdiction under s 510 is protective or rehabilitative, not punitive, as the punitive function has already been performed by the Court through its imposition of pecuniary penalties. It said that the Commission’s power under s 510 is not to be exercised for the purpose of deterrence or for the purpose of the Commission publicly noting its disapproval of the conduct, as this too is the preserve of the Court. The union further submitted that the Commission should have regard to the approach taken to s 510 by Boulton J in Parker and others,³ which has been adopted in various other decisions, including by Gostencnik DP in Kalem,⁴ where five matters were regarded as relevant: the object of Part 3-4; the nature and gravity of the underlying contravention of Part 3-4; the impact that the revocation or suspension of the entry permits might have on the union concerned, its members and the permit holder; whether training has been undertaken by the entry permit holders since the events; and general character evidence.

[18] The CFMMEU noted that Mr Taylor has been a CFMMEU official and the holder of a permit since January 2016, and that the decision of the Federal Court on 2 October 2020 is the only occasion on which Mr Taylor has been found to have contravened the Act. The CFMMEU submitted that the exercise of the Commission’s discretion under s 510 should be informed by a range of matters, including the likelihood of further contravening conduct. It said that where a contravention is truly unique, out of the ordinary or out of character, as is the case in the present matter, the Commission can be confident that the conduct will not recur. The CFMMEU said that it was significant that Mr Taylor was a first time contravener, and that the scheme of s 510 reveals a legislative intention to afford leniency towards such persons, which is reflected in the shorter minimum suspension period prescribed for such cases. It contended that sound reasons would be required to depart from the course envisaged by the legislature.

[19] The union further submitted that the Commission should take into account that the penalty imposed by the Court contains a component for deterrence, and that it ought to be assumed that the imposition of the penalty has had a deterring effect on Mr Taylor such that any reoffending is unlikely. The CFMMEU further contended that the following matters were relevant to the period of the suspension, revocation or ban that the Commission might impose:

•  Mr Taylor was found to have acted in an improper manner. He was not found to have intentionally hindered or obstructed any person. Mr Taylor had otherwise entered the site in a lawful manner. There was no physical interference with any work being performed. There was no loss or damage suffered as a consequence of Mr Taylor’s contravening conduct.

•  The conduct occurred in the context of there being legitimate safety issues at the site which were of genuine concern to Mr Taylor. His response to those issues was a genuine, albeit disproportionate and unlawful, response to the risk to which he believed the workers were exposed.

•  The conduct was isolated, constituted by one relatively short period of outbursts, and was not premeditated. Mr Taylor lost control of his behaviour for a brief period. There is no allegation of any similar conduct either before or since the relevant event.

•  Mr Taylor admitted the conduct during mediation and cooperated in the proceedings, which is indicative of insight into the seriousness of the conduct and weighs in favour of a finding that there is unlikely to be any repetition of the conduct.

[20] As to the relevance of other decisions of the Commission in matters under s 510, the union contended that, whilst it is difficult to make comparisons with prior decisions, a suspension of Mr Taylor’s permit for three months would be in accordance with comparable cases, including Parker and Kalem, referred to earlier, and also Kirner.⁵

Consideration

[21] Mr Taylor has been ordered to pay a pecuniary penalty under the Act in relation to a contravention of Part 3-4 of the Act. The Commission is therefore required by s 510 to revoke or suspend Mr Taylor’s permit unless it is satisfied that the suspension would be harsh or unreasonable in the circumstances (see s 510(1)(d) and 510(2) – note that s 510(3) is not presently relevant). Further, because the Commission has not previously taken action under s 510 against Mr Taylor, a suspension of his permit must be for a minimum period of three months (s 510(4)). If the permit is suspended or revoked under s 510(1), the Commission must also ban the issuance of any further permit to Mr Taylor for a minimum period of three months, commencing when the revocation or suspension begins (ss 510(5) and (6)).

[22] I consider that the five matters referred to in Parker are relevant to the exercise of power under s 510. Although in Parker and other cases such as Kalem these considerations were framed with particular reference to whether it would be harsh or unreasonable to suspend a permit, I accept that they may also be relevant to the consideration of the period of the suspension of a permit and the length of any associated ban on the issuing of a new permit.

[23] I accept that the exercise of the Commission’s power under s 510 should be informed by the object of Part 3-4, and, as noted in Kalem and numerous other cases, that the power is not punitive in nature. The court has already determined and ordered condign punishment for the contraventions in question, and punishment is not ordinarily a function of an arbitral body. The Commission’s function under s 510 should be understood as being protective and corrective in nature.⁶

[24] Having considered all of the circumstances, I am not satisfied that the suspension or revocation of Mr Taylor’s permit would be harsh or unreasonable in the circumstances. Therefore the exception in s 510(2) does not apply.

[25] It is necessary to determine whether Mr Taylor’s permit should be revoked or suspended. It is difficult to see how the permit could be suspended for the three month minimum term, as the union proposes, because the permit now has less than three months’ validity, expiring on 28 March 2021. Of course, an associated three month ban on the issuing of a new permit would bring about the same practical effect as a suspension of the permit for three months. Mr Taylor could not simply apply for a new permit immediately upon the expiry of the current permit. However the suspension would, in substance, be for a period that is less than the minimum period required by s 510. Even if it were possible for me to suspend the permit for the minimum three month period in the present circumstances, I would not do so. I consider that in the present case the appropriate course is to revoke the permit. The CFMMEU contended that it would be unfair to Mr Taylor to revoke his permit rather than suspend it, because he would need to apply for a new permit, which would take time, and he would therefore be without a permit for a longer period. However, because his permit will shortly expire, he would need to apply for a new permit in any event.

[26] Next, it is necessary to consider the period of the ban that should be imposed on the issuance of any new permit to Mr Taylor. I take into account the fact that Mr Taylor has been a union official and permit-holder for several years and that the contraventions of the Act declared by White J are Mr Taylor’s first contraventions. I take note of the passages of the decision of White J referred to by the ABCC, and of the quantum of the penalties imposed by the court. I also take into account that Mr Taylor’s conduct was evidently deliberate.

[27] I find the parties’ references to other decisions of the Commission of some assistance in relation to the consideration of principle, but of little relevance when it comes to applying those principles to the facts and determining an appropriate ban period, because each decision is the outcome of a deliberative process that has weighed all of the facts and circumstances, which invariably differ from case to case. Even if one could identify cases that were factually closely analogous to the present matter, I would be required to make my own assessment as to what ban period I consider to be appropriate in the circumstances, rather than simply adopting the bans imposed by other members.

[28] I accept the CFMMEU’s contention that it is appropriate to take account of the fact that the penalty imposed by the Court contains a component for specific deterrence, but I do not accept that I should assume that the imposition of the penalty necessarily has had a deterring effect, and that the risk of Mr Taylor reoffending is, for this reason, unlikely. I do not see any proper basis to make such an assumption.

[29] I am not persuaded that to be found to have acted in an ‘improper manner’, rather than to have ‘intentionally hindered or obstructed any person’, is necessarily a lesser contravention of s 500. The provision states that a permit holder must not ‘intentionally hinder or obstruct any person, or otherwise act in an improper manner’. Intentional hinderance or obstruction are therefore simply particular modes of acting in an ‘improper manner’, and there is no apparent reason why they should be considered graver than others. I note however that there was no physical interference with any work, nor was there any loss or damage suffered as a consequence of the contravening conduct.

[30] I accept, as the CFMMEU contended, that Mr Taylor was genuinely concerned about safety issues on site, but as the union rightly conceded, this does not diminish the gravity of the conduct. And although Mr Taylor admitted the conduct during mediation and cooperated in the proceedings, I do not accept the union’s contention that this must be indicative of insight into the seriousness of the conduct, or that it necessarily suggests that there is unlikely to be a repetition of the conduct. An equally available inference is that the decision to admit the contravening conduct was a pragmatic decision made in the light of the available evidence, and one that might work in Mr Taylor’s favour in the Court’s assessment of an appropriate penalty.

[31] I take account of the fact that Mr Taylor acknowledged his contraventions of the Act, but also that he did not express contrition for his actions. Through the submissions of his representatives, Mr Taylor states that the Commission can be satisfied that he will not contravene again. But that is not the same thing as recognising that his conduct was wrong. I consider that, in the Commission’s deliberations on the application of s 510, the absence of contrition is not an ‘aggravating’ factor. It is however a relevant factor. A person who has expressed remorse for a contravention can more persuasively assert that there will be no recurrence of the relevant conduct. The contrite person wishes that the contravention had not occurred, for reasons of conscience or other matters related to their own personal value system. Remorse is a powerful motivator that may weigh in favour of a conclusion that further contraventions are unlikely. But there has been no expression of remorse in this case.

[32] I consider that a ban period that exceeds the minimum period in s 510(6)(b) is 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.

[33] Mr Taylor was ordered to pay penalties in respect of two contraventions of the Act. He recognises his contraventions but has not said that he regrets them. The contraventions were serious matters. I am mindful that these are Mr Taylor’s first contraventions. In all the circumstances I consider that it would be in keeping with the protective purpose of s 510, and the object of Part 3-4, to impose a ban period that exceeds the minimum period of three months. I consider that a ban period of four months is appropriate in all the circumstances.

Conclusion

[34] For the reasons set out above, I order that Mr Taylor’s entry permit be revoked on the first business day following the date of this decision, and that from that day there be a ban on the issue of any further permit to Mr Taylor for a period of four months.

DEPUTY PRESIDENT

Determined on the papers

Written submissions:

ABCC: 1 December 2020

Mr Taylor: 23 December 2020

Printed by authority of the Commonwealth Government Printer

<PR726501>

 1   Australian Building and Construction Commission v Menon and others [2020] FCA 1418

2 See also the observations of the Full Federal Court in Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 at [14] and [15]

3 [2011] FWA 2577

4 [2017] FWC 5086

5 [2017] FWC 5514

6 Mr Muhammed Kalem [2017] FWC 5086 at [19], Gostencnik DP