[2017] FWC 6867
FAIR WORK COMMISSION

DECISION


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

Fair Work Commission
v
Stephen Long
(RE2016/590)

COMMISSIONER SAUNDERS

NEWCASTLE, 19 DECEMBER 2017

Application of the Commission’s own motion pursuant to s.510 of the Act in response to orders to pay pecuniary penalties in relation to contraventions of Part 3–4 of the Act – whether suspension harsh or unreasonable in the circumstances – whether to suspend or revoke entry permit – suspension and ban for six months.

[1] This decision concerns whether I should revoke or suspend Mr Stephen Long’s entry permit pursuant to s.510 of the Fair Work Act 2009 (Cth) (Act). The Fair Work Commission (Commission) commenced this matter on its own initiative.

Background

[2] Mr Long is an official of the Construction, Forestry, Mining and Energy Union (CFMEU) and is currently employed by the CFMEU as an Organiser. Mr Long is also currently the holder of an entry permit issued by the Commission pursuant to s.512 of the Act. Mr Long was issued with an entry permit on 20 May 2015 which expires on 20 May 2018 (RE2015/663).

[3] In judgments delivered on 20 November 2015 1 and 22 April 20162, Justice White of the Federal Court of Australia declared, inter alia, that:

[4] Justice White ordered that Mr Long pay total pecuniary penalties of $4,400 ($2,200 for each contravention of s.500 of the Act) and the CFMEU pay total pecuniary penalties of $50,000 ($25,000 for each contravention of s.500 of the Act) in relation to the contraventions by Mr Long of s.500 of the Act on 30 and 31 October 2013. 7

[5] The Full Court of the Federal Court (North, Besanko and Flick JJ) on 17 May 2017 dismissed appeals by Mr Long and the CFMEU against the earlier decisions by Justice White. 8

[6] The Director of the Fair Work Building Industry Inspectorate (now known as the Australian Building and Construction Commissioner (ABCC)) gave notice to the Commission that it intended to make submissions in this matter pursuant to s.72 of the Fair Work (Building Industry) Act 2012 (Cth).

[7] Directions requiring the filing of statutory declarations, submissions and other documents were issued by the Commission on 30 August 2017. Amended directions were issued at the request of the CFMEU on 27 September 2017. Mr Long and the CFMEU filed and served an outline of submissions dated 29 September 2017. Mr Long and the CFMEU did not file any statutory declarations or other documents, or otherwise adduce any evidence, in relation to this matter. The ABCC filed an outline of submissions dated 27 October 2017.

[8] The parties made oral submissions in relation to the matter on 15 November 2017. Mr Long and the CFMEU were represented by Mr R Reitano, of counsel, and the ABCC was represented by Mr B Avallone, of counsel.

Legislative framework

[9] Section 510 of the Act provides as follows:

“510 When the FWC must revoke or suspend entry permits

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:

(a) the permit holder was found, in proceedings under this Act, to have contravened subsection 503(1) (which deals with misrepresentations about things authorised by this Part);

(b) the permit holder has contravened section 504 (which deals with unauthorised use or disclosure of information or documents);

(c) the Information Commissioner has, under paragraph 52(1)(b) of the Privacy Act 1988, found substantiated a complaint relating to action taken by the permit holder in relation to information or documents obtained under section 482, 483, 483B, 483C, 483D or 483E;

(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;

(e) a court, or other person or body, under a State or Territory industrial law:

(i) cancelled or suspended a right of entry for industrial purposes that the permit holder had under that law; or

(ii) disqualified the permit holder from exercising, or applying for, a right of entry for industrial purposes under that law;

(f) the permit holder has, in exercising a right of entry under a State or Territory OHS law, taken action that was not authorised by that law.

(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

(4) 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 entry permits

(5) 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).

(6) The ban period must:

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

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

Agreed matters

[10] There is no dispute between the parties that Mr Long and the CFMEU have been ordered to pay pecuniary penalties under the Act in relation to contraventions of Part 3–4 by Mr Long. Accordingly, the Commission must revoke or suspend Mr Long’s entry permit 9 unless it is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.10

Long’s contravening conduct

[11] Mr Long’s conduct which gave rise to his contraventions of s.500 of the Act was described in the following way by Justice White in the Liability Judgment:

“Adelaide Oval site: 30 October 2013 – findings as to the conduct

[177] On 30 October 2013, six CFMEU officials entered the Adelaide Oval site. They were the seventh respondent (Mr McDermott), the eighth respondent (Mr Long), the ninth respondent (Mr Harrison), the tenth respondent (Mr Roberts), the eleventh respondent (Mr Stephenson) and the twelfth respondent (Mr Kirner). None of these officials had given forewarning of their intention to visit the site that day, let alone notice of entry pursuant to s 487. This was unusual because, before 30 October 2013, CFMEU officials had always provided notices of entry at least 24 hours in advance of their proposed visits.

[178] The Director alleges that each of the respondents was exercising, or seeking to exercise, the s 484 right and that, in doing so, each acted in an improper manner.

…

[181] Mr Ising saw the CFMEU officials enter through Gate 6 and go to the site office. He recognised Mr McDermott, Mr Roberts, Mr Stephenson and Mr Kirner as they had attended previously. All the officials were wearing clothing and hard hats with CFMEU logos and insignia. Each of the officials completed the signin register (but none provided a contact telephone number).

[182] Mr Ising approached the group and spoke to them outside the site office. Mr Long and Mr Harrison then introduced themselves to him. Mr Long was from Melbourne and Mr Harrison from Canberra. Mr Ising then had a conversation with Mr McDermott to the following effect:

Mr Ising: What is the purpose of this visit?

Mr McDermott: We are taking a look around your site.

Mr Ising: Neither you or any of the other visitors have an entry notice.

[183] While Mr Ising was having this conversation with Mr McDermott, the other officials were standing in a group nearby within “a couple of metres”. I am satisfied that each heard the conversation between Mr Ising and Mr McDermott as each immediately started walking away from Mr Ising and toward the eastern stand. I infer that they were responding to Mr Ising’s statement by this conduct.

[184] Mr Ising followed the officials. He observed them speaking briefly to workers as they walked along. Mr Kirner told Mr Ising “I want to catch up with the seating contractor”. This was Sebel.

[185] On the eastern stand level one concourse, some of the CFMEU officials spoke to some workers. Mr McDermott and possibly some of the other officials said to the workers words to the effect of “there’s going to be a meeting at 9.30”.

[186] The CFMEU officials then split in to smaller groups. Mr McDermott and Mr Long walked to the plaza level and transport corridor. Mr Jackson followed them. There were a number of workers in these areas and Mr McDermott and Mr Long stopped to speak briefly to several. Mr Roberts went to the basement. Mr Ising located him there and began to accompany him. The remaining officials were unescorted and the evidence did not disclose their movements.

…

[189] Workers began gathering for a meeting with the CFMEU officials outside the basement lunchrooms. The meeting commenced at approximately 9:40 am, by which time the other officials had also arrived at the lunchroom.

[190] On 30 October 2013, there were approximately 500-600 workers on site, and of these, 100-150 attended the meeting in the basement lunchroom area. Some of these, 6 to 8, were employees of Lend Lease and some were employees of contractors carrying out work on the site. The meeting continued until about 10:00 am.

…

[192] While the CFMEU officials were waiting for the 12:30 meeting, they stayed in the area near to the lunchroom or walked around the surrounding area. At one stage while the officials and Mr Ising and Mr Jackson were standing in a group, Mr Roberts said, in relation to not having provided notices of entry, “this is the new way of the world”. He also described rights of entry as a “farce”.

…

[198] Mr McDermott and Mr Long arrived on the concourse at about 12:20 pm. Mr Ising then spoke to Mr McDermott, Mr Long and Mr Roberts, saying words to the following effect:

Mr Ising: Lend Lease is prepared to double up drink fountains at the current locations in the east stand and to add a drink fountain in the middle of the east stand level 1. In relation to the dust, currently there’s a street sweeper being used and this gets attended to on an as need basis. Lend Lease is also prepared to add a further two single toilets to level 1 of the east stand. There are already some in the basement.

Mr Roberts: We’ll address the workers at 12.30 and advise.

[199] In fact, the meeting between the workers and the CFMEU officials commenced at about 1:00 pm outside the lunchroom. Mr Roberts and Mr McDermott spoke to the workers during the meeting. It concluded at about 1:15 pm and the workers returned to work.

[200] All of the officials other than Mr Kirner were at the meeting…

[202] Mr Jackson also deposed to the attitude of the CFMEU officials while on site as follows:

While they were on site, the officials were quite aggressive and direct in their approach towards Lend Lease’s management staff. It was not a comfortable environment. The officials were being arrogant, highhanded and dismissive and disregarded instructions given by the Lend Lease management. They did not seem to care that they were on site illegally.

[203] As can be seen, this passage of evidence was conclusionary in nature and did not particularise the CMFEU officials who were said to have acted in the ways described. Accordingly, I consider it appropriate to regard this as evidence of Mr Jackson’s perception of the attitude of the CFMEU officials without attributing his description to any particular official.

[204] The CFMEU officials left the site at approximately 1:35 pm.

Adelaide Oval site: 30 October 2013 – the contraventions

…

Long and Harrison

[213] Each of Mr Long and Mr Harrison denied they were seeking to exercise rights in accordance with s 484 of the FW Act at Adelaide Oval on 30 October 2013, and denied that they acted in an improper manner. In particular, each denied that he spoke at, or in any other way participated actively in, either of the two meetings with the workers near the lunchrooms that day.

[214] Counsel for the respondents referred to Mr McDermott’s statement to Mr Ising “we are taking a look around the site” and submitted that this reflected the purpose of Mr Long and Mr Harrison. I reject that submission. The words “taking a look around” appear to be in the nature of a euphemism. Even if the notion of “taking a look around” is understood literally as a statement of the purpose of Mr Long and Mr Harrison, it is belied by their conduct. Mr Long and Mr Harrison entered with, and accompanied, the CFMEU officials who were entering to have discussions with workers; they were wearing clothing and hard hats with the CFMEU logos and insignia; they entered during their own working hours; and they did, very soon after entering, speak to workers. Mr Long and Mr Harrison could not have thought that they had any entitlement to enter the site simply to look around. They had no more entitlement to do so than any other member of the public. Their behaviour was not that of persons entering out of curiosity.

[215] I refer to what I said earlier concerning the meaning of the word “discussions” in s 484. I am satisfied that each of Mr Long and Mr Harrison did, very shortly after entry, engage in discussions of the requisite kind. This too is revelatory of their true purpose in entering. It is pertinent that Mr Long accompanied Mr McDermott both before and after the 9:30 meeting and Mr McDermott’s purpose was to have discussions with workers.

[216] Each of Mr Long and Mr Harrison attended both the 9:30 and 12:30 lunchtime meetings and they, like the other organisers, remained in the vicinity of the lunchrooms between the two meetings. That is strongly suggestive that they had no purpose in attending the site other than participating in those two meetings.

[217] Further again, Mr Ising’s evidence was that all of the CFMEU officials (other than Mr Kirner) stood in front of the workers, and I infer facing them, at the 12:30 meeting. That too is indicative of them having engaged in discussions with the workers even if they did not themselves speak. That is especially so given that they had waited specifically for the 12:30 meeting and there being no other apparent purpose for their attendance.

[218] Counsel made the same submission in respect of Mr Long and Mr Harrison as he had made in respect of Mr Kalem and Mr Lomax at the Flinders University site. That is, that the Director had not established that the workers to whom Mr Long and Mr Kalem spoke were employees at all, let alone employees whose industrial interests the CFMEU was entitled to represent. This submission fails for the same reasons as it did in respect of Mr Kalem and Mr Lomax. In fact, given the greater number of workers on the Adelaide Oval site, the submission is even less plausible. It is fanciful to suppose that the CFMEU officials went to the Adelaide Oval site and spent their entire morning there in order to hold discussions with workers for whom the CFMEU had no rights of representation.

[219] Accordingly, I am satisfied that the Director has established the contraventions of s 500 by Mr Long and Mr Harrison and, in consequence, by the CFMEU itself. There will be declarations accordingly.

Adelaide Oval site: 31 October 2013

[220] The Director alleges contraventions of s 500 by Mr Beattie, Mr McDermott and Mr Long at the Adelaide Oval site on 31 October 2013. By an amendment to the Defence filed on the first day of trial, Mr McDermott admitted his contravention, and the CFMEU admitted its contravention constituted by Mr McDermott’s admitted conduct. However, Mr McDermott and the CFMEU did not admit all aspects of the conduct alleged by the Director.

[221] The witness who gave evidence concerning the events on this day was Mr Jackson. As previously indicated, he was a reliable witness. I accept his evidence and, on that basis, and on the basis of the pleaded admissions, make the following findings of fact.

[222] Mr Beattie, Mr McDermott and Mr Long entered the Adelaide Oval site at about 11:00 am on 31 October 2013 and signed in the visitors’ book (but did not provide telephone contact details). Mr Jackson was alerted to their presence shortly afterwards. He left the work on which he was then engaged and went to meet the three officials. It took him about 15 minutes to find them as they had not remained at the site office. Instead, the three officials were near the northern entry stairs of the eastern stand.

[223] In his affidavit evidence, Mr Jackson said that he approached the three officials and asked each of them individually “do you have any entry notice?” to which each answered “No”. Mr Jackson then said to them as a group “you are all not permitted to enter the site” to which Mr McDermott replied by saying “Yes”. Mr Jackson could not recall whether either Mr Beattie or Mr Long had responded.

[224] However, in his cross-examination Mr Jackson said that his question about the entry notice was directed to the group. He also said that he could not now recall whether any of the officials, other than Mr McDermott, had answered the question. It may well be that Mr Jackson’s affidavit evidence is more reliable in this respect than his oral evidence. His affidavit was made at a time when the events of 31 October 2013 are likely to have been fresher in his memory (the affidavit was made on 15 September 2014). Further, Mr Jackson had been asked to recall the events of the day in relation to evidence he gave in the Fair Work Commission concerning those events in December 2013. Despite these matters, I consider it more likely, and so find, that Mr Jackson addressed a single question to the group by speaking to Mr McDermott, the only one of the officials whom he knew.

[225] After the conversation described above, the three CFMEU officials continued to walk down the path into the eastern stand level one. Mr Jackson shadowed them. He and Mr McDermott had the following conversation:

Mr McDermott: We’re here to follow up on yesterday’s issues. Have the improvements been made?

Mr Jackson: Yes they have.

[226] Mr McDermott then walked away from the group and proceeded further into the site, unescorted by Mr Jackson. Mr Long and Mr Beattie remained at level one. Mr Jackson telephoned Mr McDermott on his mobile phone at 11:46 am and a conversation to the following effect occurred:

Mr Jackson: You have to return to the group.

Mr McDermott: I am going up to the level 5 east stand.

[227] Mr McDermott did not comply with Mr Jackson’s direction. He did not return to the group until about 12:20 pm.

[228] In the meantime, Mr Jackson, Mr Long and Mr Beattie sat in the stadium seats on the concourse of the eastern stand and engaged in conversation of an informal kind. At one stage, Mr Jackson acceded to the request of Mr Long and Mr Beattie that they be shown the old Adelaide Oval scoreboard.

[229] On Mr McDermott’s return, the three CFMEU officials went to the lunchroom area in the eastern stand basement where a group of workers were congregating for their lunch break. Mr Jackson accompanied them. The three officials then held a meeting with the workers for about 1015 minutes, but it was only Mr McDermott who addressed the meeting. At the end of the meeting Mr McDermott went to Mr Jackson and said words to the effect of “we want more eyewashing stations at this site”. The three officials then left the site via Gate 6.

[230] Mr Jackson was satisfied that Lend Lease already had more than enough eye-washing stations but did arrange for additional stations to be placed around the site in order to avoid a reason for further industrial issues.

[231] Counsel for the respondents submitted that the Director had not established that Mr Beattie and Mr Long had entered the Adelaide Oval site on 31 October 2013 for the purpose of holding discussions with workers to whom s 484 refers. He relied on the same matters which Mr Long and Mr Harrison had relied upon in relation to their entry the previous day, and upon which Mr Kalem and Mr Lomax had relied in respect of their entry onto the Flinders University site. In addition, counsel emphasised that Mr Beattie and Mr Long had spent much of their time on the site that day simply sitting and waiting for Mr McDermott and that neither had addressed the meeting at 12:30 pm.

[232] My conclusions for rejecting this submission are similar to those which I gave in respect of the entry of Mr Long and Mr Harrison on 30 October. It is true that the entry of Mr Beattie and Mr Long has the additional feature that, for much of their period on the site, they did little more than sit waiting for Mr McDermott and inspected, apparently in the manner of tourists, the old Adelaide Oval scoreboard. However, they were accompanying Mr Dermott, who was entering pursuant to s 484. And they did attend the 12:30 meeting with workers. To my mind, it is immaterial in these circumstances that they themselves did not speak at that meeting. For the reasons given earlier, I consider that persons may enter for the purpose of holding discussions with workers of the defined kind when they enter as a group, even if they do not intend themselves to be speakers at the meeting.

[233] For these reasons, I consider that the Director has established the contraventions of s 500 at the Adelaide Oval site on 31 October 2013 by Mr Beattie and Mr Long and, in consequence, by the CFMEU. There will be declarations to that effect.

[12] Justice White made the following comments, observations and findings regarding the conduct of Mr Long in the Penalty Judgment:

“Long (Eighth Respondent)

[169] Penalties are to be imposed on Mr Long for his contraventions of s 500 at the Adelaide Oval site on 30 and 31 October 2013. The circumstances of those contraventions are set out in the Liability Judgment in the paragraphs to which I referred in relation to Mr McDermott, namely, [177]-[204] and [220]-[233]. Mr Long’s contraventions of s 500 were comprised on his entering the site without having provided a notice of entry and without permission, his defiance of the respective challenges by Mr Ising and Mr Jackson and by his being one of the group which held discussions with workers on the site on each day.

[170] Mr Long is employed by the CFMEU as an organiser. He has no prior contraventions of s 500.

[171] However, on 7 March 2011, Kenny J imposed a single penalty of $5,000 on Mr Long for contraventions of ss 38 and 43 of the BCII Act on 28 May 2008: White v CFMEU [2011] FCA 192. Mr Long had contravened s 38 by engaging in unlawful industrial action and s 43 by organising or taking action with the intention of coercing an employer to employ employees who had been made redundant and to allocate particular responsibilities to those employees. Although contraventions of s 500 involve conduct which is different from such conduct, I do consider it appropriate to have regard to Mr Long’s record in this respect.

[172] The Director also referred to two other matters in which the Court has imposed penalties for contraventions of ss 38 and 43 of the BCII Act. These were Gregor v CFMEU [2011] FCA 808 (Marhsall J) and DFWBII v CFMEU [2013] 1014 (Gordon J). The reasons in each of those cases record admissions by the CFMEU that Mr Long had engaged in particular conduct amounting to contraventions of ss 38 and 43 even though he had not been charged personally with those contraventions. As the admissions in those cases were made by the CFMEU and not by Mr Long personally, he is not, strictly speaking, bound by them. However, the respondents did not dispute the Director’s submission that it was appropriate for the Court to have regard to these two matters when considering penalty in Mr Long’s case. That being so, I will take them into account as part of Mr Long’s history.

[173] The respondents emphasised the evidence from Mr Jackson that his interactions with Mr Long on 30 October 2013 had been cordial and polite. They also submitted that there had been no contravention of industrial legislation alleged against Mr Long since an occurrence on 20 May 2014 which, it was said, that indicated a determination on his part to comply with industrial law.

[174] The Director submitted that penalties in the range $2,000-$3,000 were appropriate for each of Mr Long’s contraventions. The respondents on the other hand submitted that penalties in the range of $800-$1,400 were appropriate in each case.

[175] Mr Long’s record makes it appropriate for a higher penalty to be imposed on him than I have imposed on other organisers. I consider that the penalties of $2,200 are appropriate for each of the contraventions. There should not be any reduction for totality.”

[13] Also of relevance to Mr Long’s conduct are the following comments, observations and findings made by Justice White in the Penalty Judgment regarding the conduct of the CFMEU officials, including Mr Long, as a group:

“A concerted campaign by the CFMEU

…

[71] … I am satisfied that, in late October 2013, the CFMEU had decided upon a form of concerted action which involved deliberate entry onto Lend Lease building sites without providing a notice of entry. It is not necessary to make findings about the purpose of the campaign but I note that, on several occasions during the subject entries, reference was made, whether expressly or by implication, to the CFMEU wish that Lend Lease employ a permanent CFMEU delegate on each site. Whatever its purpose, I am satisfied that the CFMEU and its officials were engaged in a concerted campaign at Lend Lease sites in Adelaide in deliberate defiance of the requirements in the FW Act regarding the exercise of rights of entry. I agree that the conduct of the respondents on 30 and 31 October 2013 should be assessed in that light. It means that the contraventions are to be regarded as deliberate and premeditated. This is a significant matter of aggravation.

…

[73] The respondents did not concede that their conduct at the Lend Lease building sites was the implementation of a concerted campaign. They did not, however, advance any submission to the contrary.

…

[101] The Director did not allege that Lend Lease suffered quantifiable economic loss or damage at any of the four sites by reason of the unlawful entries. It is, however, appropriate to take into account that senior managers at each site were distracted from their normal duties by having to deal with the CFMEU officials. In some cases, the periods involved were relatively short but in others, for example, at the Adelaide Oval site on 30 October 2013, the period extended over several hours. The distraction of the managers from their duties included the time they later spent in making reports to their upper management concerning the unlawful entries, but the evidence did not disclose the times involved in doing so.

[102] In addition, workers carrying out their normal duties at each site were distracted from their work by the CFMEU officials speaking to them. In relation to the Flinders University site, I will mention separately the stoppage of work with the crane while the CFMEU flag was relocated.

[103] Finally, it is appropriate to keep in mind in each case the affront to the rights of Lend Lease associated with each of the unlawful entries. At some sites this was more obvious than at others. The CFMEU officials acted in defiance of the requirements of Pt 3-4 of the FW Act and, with the possible exception of the entry at the Convention Centre site, in a way which was dismissive of the objections of the Lend Lease managers. Their conduct was a subversion of the balancing of the rights and interests sought to be achieved by Pt 3-4 to which I referred earlier and an affront to the authority of Lend Lease and of its managers.”

Positions of the parties

[14] Mr Long and the CFMEU submit that:

[15] The ABCC submits that the exception under s.510(2) of the Act does not apply and the Commission should:

Suspension/revocation harsh or unreasonable?

[16] The power of the Commission under s.510(1) and (2) of the Act is informed not by the need to punish individuals (which is properly a function of the Court in other proceedings), but by the need to establish or maintain the balancing of rights and obligations between employees, unions, occupiers of premises and employers. 11 The jurisdiction is protective and corrective, not penal.12

[17] In determining whether any period of suspension would be, in the particular circumstances, harsh or unreasonable pursuant to s.510(2) of the Act, the Commission should have regard to all of the relevant circumstances. The following matters are relevant to this consideration: 13

[18] The matters listed in paragraph [17] above are not exhaustive. As submitted by all parties in these proceedings, I accept that the likelihood of a permit holder contravening Part 3–4 of the Act again is relevant to the question of whether a suspension of the permit holder’s right of entry would be unreasonable or harsh in the circumstances.

CFMEU’s submissions

[19] Mr Long and the CFMEU submit that there are a number of circumstances which, when considered together, strongly suggest that taking further action against Mr Long by way of a suspension or revocation would be unreasonable or harsh. In particular, Mr Long and the CFMEU rely in their submissions on the following circumstances:

Conclusion as to suspension or revocation harsh or unreasonable

[20] As to the circumstances referred to in paragraphs [19(a) and (c)] above, it is correct that Mr Long’s conduct the subject of the contraventions happened about four years ago and he has not been found by a court to have contravened any right of entry provisions, save for Justice White’s decision in the Liability Judgment and Penalty Judgment. I accept that a combination of these circumstances weighs to some extent in favour of Mr Long’s argument that a suspension or revocation of his right of entry permit would be harsh or unreasonable in the circumstances.

[21] I do not accept the characterisation given by Mr Long and the CFMEU to his contraventions as being a “low level contraventions”. I accept that Mr Long’s contraventions are towards the lower end of the range of seriousness of contraventions of s.500 of the Act. However, Mr Long’s conduct the subject of the contraventions is nevertheless serious, as is apparent from the following findings made by Justice White:

[22] Mr Long’s conduct on 30 and 31 October 2013 significantly affronts the objects of Part 3–4 of the Act to establish or maintain the balancing of rights and obligations between employees, unions, occupiers of premises and employers. 15 His conduct, and in particular his defiance of the respective challenges by Mr Ising and Mr Jackson, demonstrates a deliberate decision on his part not to comply with his obligations under s.487 to give the occupier of the premises and any affected employer an entry notice for the entry. For these reasons, I find that the nature and gravity of Mr Long’s contravention weighs strongly against a finding that the suspension or revocation of Mr Long’s entry permit would be unreasonable or harsh.

[23] As to the fourth circumstance referred to in paragraph [19(d)] above, I accept that if Mr Long’s entry permit is revoked or suspended there would be some inconvenience caused to Mr Long and members of the CFMEU, albeit no evidence was adduced to explain or substantiate the extent of likely inconvenience. However, such inconvenience is a direct result of Mr Long’s actions. The suspension of an entry permit following contraventions of the kind engaged in by Mr Long is an ordinary consequence of s.510 of the Act and is perhaps something to which Mr Long should have turned his mind before engaging in a deliberate concerted action with other CFMEU officials on 30 and 31 October 2013 to enter the Lend Lease building site at the Adelaide Oval without providing a notice of entry. I find that this factor carries little weight in favour of a finding that the suspension or revocation of his entry permit would be harsh or unreasonable.

[24] The ABCC submits that it is relevant and appropriate to take into account other findings of misconduct against Mr Long in deciding (a) whether a suspension or revocation of his right of entry permit would be harsh or unreasonable, (b) whether to revoke rather than suspend Mr Long’s entry permit, and (c) the duration of any suspension and/or ban. In particular, the ABCC seeks to rely on Mr Long’s conduct the subject of findings made by Vice President Watson to the effect that Mr Long misused his entry rights when attending various Lend Lease sites in 2014, 16 which findings have not been the subject of an appeal and which form the basis for the decision and order to address such conduct made by Vice President Catanzariti in other proceedings.17 The CFMEU and Mr Long submit that these matters should not be taken into account in determining the issues in these proceedings under s.510 of the Act.

[25] The trigger for the obligation on the Commission to revoke or suspend an entry permit under s.510(1) of the Act, subject to the limited qualification concerning harshness or unreasonableness, is a contravention of Part 3–4 of the Act or an obligation closely connected with Part 3–4 of the Act. 18 Unlike s.513(1)(g) of the Act, s.510 of the Act does not expressly permit or require the Commission to take into account “any other matters that the FWC considers relevant” in deciding whether to suspend or revoke an entry permit or the duration of any such suspension or ban following a revocation. It is also relevant to bear in mind that the jurisdiction is protective and corrective, not penal.19 These matters provide some support for the argument that it is not appropriate to have regard to Mr Long’s conduct the subject of proceedings before Vice President Watson and Vice President Catanzariti. However, when determining (a) whether a suspension or revocation of Mr Long’s right of entry permit would be harsh or unreasonable, (b) whether to revoke rather than suspend his entry permit, and (c) the duration of any suspension and/or ban, it is relevant to have regard to the extent to which the Commission can have confidence that Mr Long would exercise his rights as a permit holder under the Act in a manner which achieves the necessary balance between the rights associated with the CFMEU’s reputational role, the rights of employees to receive, at work, information and representation from officials of organisations, and the rights of occupiers of premises and employers.20 In the present case, the findings made by Vice President Watson relate to Mr Long’s misuse of his right of entry under the Act at various work sites in 2014.21 Because of the similarity between that conduct and Mr Long’s conduct the subject of the findings made by Justice White in the Liability Decision and the Penalty Decision, I am satisfied that Mr Long’s misuse of his entry rights in 2014, as found by Vice President Watson, is relevant to my assessment as to whether Mr Long is likely to comply with his obligations under Part 3–4 of the Act in the future. Such conduct, together with the orders made in relation to it and Mr Long’s compliance with such orders, is therefore relevant to my determination of (a) whether a suspension or revocation of Mr Long’s right of entry permit would be harsh or unreasonable, (b) whether to revoke rather than suspend Mr Long’s entry permit, and (c) the duration of any suspension and/or ban. In taking this approach, I do not consider than I am punishing Mr Long twice (or even once) for the same conduct. I am endeavouring to take into account relevant considerations for the purpose of balancing the various rights referred to in s.480 of the Act.

[26] Mr Long has not expressed any contrition or remorse in these proceedings for his conduct on 30 and 31 October 2013, nor has he given a promise or undertaking in these proceedings not to engage in similar conduct in the future. There is no evidence that Mr Long has engaged in any training to ensure he understands why his conduct on 30 and 31 October 2013 was not acceptable and what impact his conduct on those days had on others, save for the standard right of entry training undertaken by Mr Long in connection with his application for a right of entry permit in 2015. Further, Mr Long was found by Vice President Watson to have misused his entry rights under the Act on a number of occasions in 2014. Although there is no suggestion that Mr Long has failed to comply with the orders made by Vice President Catanzariti 22 and Vice President Watson23 in other proceedings, these matters24 weigh in favour of a finding that it would not be harsh or unreasonable to suspend or revoke Mr Long’s entry permit.

[27] It is not ascertainable on the material filed whether Mr Long personally paid the penalties imposed on him by Justice White in the Liability Judgment or whether such penalties were paid by the CFMEU on his behalf. In those circumstances, I will treat this matter as a neutral consideration.

[28] Having regard to all the circumstances, individually and collectively, including the deliberate and serious nature of the improper conduct the subject of Mr Long’s contraventions of s.500 of the Act, and balancing the rights of organisations to represent their members in the workplace, the rights of employees to receive, at work, information and representation from officials of organisations, and the rights of occupiers of premises and employers to go about their business without undue inconvenience, I am satisfied that a suspension of Mr Long’s right of entry would not be unreasonable or harsh in the circumstances.

Duration of suspension or revocation

[29] Section 510(1) of the Act provides the Commission with the discretion to decide to either revoke or suspend an entry permit in a particular case. The Commission also has the discretion to decide the length of the suspension and ban subject to the minimum suspension periods and ban period prescribed in ss.510(4) to (6) of the Act. The matters considered in above in relation to whether the suspension or revocation of Mr Long’s permit would be harsh or unreasonable in the circumstances are also relevant to my determination of whether to revoke or suspend Mr Long’s entry permit and the length of the suspension or revocation and ban.

[30] I agree with Deputy President Gostencnik’s view that the relevant presumptive minimum suspension period provided for in s.510(4) of the Act (three months, in this case) should only be departed from with good reason. 25

[31] Taking into account and weighing all of the matters set out above, together with those in subparagraphs [31(a), (b) and (c)] below, I am satisfied that, in balancing the rights of organisations to represent their members in the workplace, the rights of employees to receive, at work, information and representation from officials of organisations, and the rights of occupiers of premises and employers to go about their business without undue inconvenience, it is appropriate in the circumstances to exercise my discretion to impose a suspension and ban for a period of six months. I consider that there are good reasons for departing from the presumptive minimum suspension period of three months, namely:

[32] There is little practical difference in this case between a six month suspension and ban, on the one hand, and a revocation and ban for six months, on the other hand. A six month suspension and ban would expire in late June 2018, which is about one month after Mr Long’s current entry permit expires on 20 May 2018. Accordingly, whether a six month suspension and ban or a revocation with a ban for six months is imposed, the result would be that the CFMEU would have to apply to the Commission for the issue of a new right of entry permit for Mr Long and satisfy the Commission that Mr Long is a fit and proper person to hold such a permit. Having regard to all the circumstances, I am satisfied that a six month suspension and ban is appropriate in this case.

Conclusion

[33] An Order PR598901 giving effect to this decision will be separately issued. Pursuant to s.517(1)(a) of the Act Mr Long is required to return the entry permit that is suspended to the Commission within 7 days from the date the permit is suspended.

tle: Seal of the Fair Work Commission with Member's signature - Description: Seal of the Fair Work Commission with Member's signature

COMMISSIONER

Appearances:

Mr R Reitano of Counsel, with Mr M Aird, for the CFMEU and Mr Long.

Mr B Avallone of Counsel, with Ms F Lee, for the ABCC.

Hearing details:

2017.

Newcastle and Melbourne (by video link):

November 15.

Final written submissions:

CFMEU, 29 September 2017

ABCC, 27 October 2017

 1   Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 (Liability Judgment)

 2   Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 (Penalty Judgment)

 3   Ibid at [23]

 4   Ibid at [24]

 5   Ibid at [35]

 6   Ibid at [36]

 7   Ibid at [65]-[66] and [77]-[78]

 8   Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2017] FCAFC 77

 9   Section 510(1)(d) of the Act

 10   Section 510(2) of the Act.

 11   Perkovic v Director of the Fair Work Building Industry Inspectorate [2015] FWCFB 5867 at [27]

 12   Australia Building and Construction Commission v McLoughlin [2007] AIRC 717 at [221]; Fair Work Commission [2011] FWA 5824 at [26]; Perkovic v Director of the Fair Work Building Industry Inspectorate [2015] FWCFB 5867 at [24]

 13   Perkovic v Director of the Fair Work Building Industry Inspectorate [2015] FWCFB 5867 at [24]

 14   Parker & Ors [2011] FWA 2577

 15   Perkovic v Director of the Fair Work Building Industry Inspectorate [2015] FWCFB 5867 at [27]

 16   DFWBII v CFMEU [2015] FWC 6889

 17   ABCC v CFMEU [2017] FWC 3595 at PR595681

 18   s.510(1)(c), (e) and (f) of the Act

 19   Australia Building and Construction Commission v McLoughlin [2007] AIRC 717 at [221]; Fair Work Commission [2011] FWA 5824 at [26]; Muhammed Kalem [2017] 5086 at [34]

 20   Director of the Fair Work Building Industry Inspectorate v Vink [2016] FWC 2512 at [42]; s.480 of the Act

 21   See summary of Mr Long’s conduct the subject of proceedings before Vice President Watson at paragraph [66] of the ABCC’s submissions dated 27 October 2017

 22   ABCC v CFMEU [2017] FWC 3595 at PR595681

 23   ABCC v CFMEU [2017] FWC 3595 at [56]

 24   Lack of contrition/remorse, no promise or undertaking not to engage in similar conduct in the future, lack of specific training, and similar contravening conduct in 2014.

 25   Muhammed Kalem [2017] 5086 at [38]

 26   ABCC v CFMEU [2017] FWC 3595 at PR595681

 27   ABCC v CFMEU [2017] FWC 3595 at [56]

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