DECISION

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

In the matter of the Entry Permit of Jason Lawrence O’Mara
(RE2018/1438)

In the matter of the Entry Permit of Jason Lawrence O’Mara – penalties imposed for contraventions of the FW Act – whether to suspend or revoke entry permit – permit suspended for a period of 3 months.

[1] This proceeding is commenced on the Commission’s initiative to consider what action, if any, should be taken under s 510 of the Fair Work Act 2019 (FW Act) in relation to an entry permit currently held by Jason Lawrence O’Mara. As the proceeding involves a building industry participant within the meaning of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act), the Australian Building and Construction Commissioner (Commissioner) gave written notice on 31 January 2019 that he intervenes in the proceeding pursuant to s 110 of that Act.

[2] Mr O’Mara is the holder of an entry permit issued on 13 June 2019 under s 512. He was also the holder of an earlier issued entry permit which expired on 13 June 2019. He is the Branch Secretary of the ACT Divisional Branch of the Construction and General Division of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and has served the CFMMEU as an officer and employee since about February 2007. Mr O’Mara’s current entry permit will expiry on 13 June 2022.

[3] In Commissioner of the Australian Building and Construction Commission v Hall & Ors (“The 3 Site Canberra Case”)¹ (Hall Liability judgment) the Federal Circuit Court relevantly found that Mr O’Mara contravened:

•  contravened s 497 of the FW Act on 21 August 2013 by exercising a State or Territory OHS right and failing to comply with repeated requests made by Village to produce his federal entry permit for inspection while at the Nexus Site of which Village was the occupier;²

•  s 499 of the FW Act on 11 March 2014 by exercising a State or Territory OHS right and failing to comply with a reasonable request made by Village to comply with an occupational health and safety requirement that applied to the Harrison Site of which Village was the occupier;³

•  s 503(1) of the FW Act on 11 March 2014 by taking action at the Harrison Site, reckless as to whether the impression was given, that he was authorised by Part 3-4 of the FW Act to take that action.⁴

[4] The Court also found the CFMMEU (known as the CFMEU at the time of the relevant contravention) to be liable, pursuant to s 739 of the FW Act, inter alia, for Mr O’Mara’s contravention of s 503(1). 5

[5] In Commissioner of the Australian Building and Construction Commission v Hall & Ors (“The 3 Site Canberra Case – Penalties”)⁶ (Hall Penalties judgment) the Court relevantly declared that Mr O’Mara had contravened:

•  s 497 of the FW Act on 21 August 2013 by exercising a State or Territory OHS right and failing to comply with repeated requests made by Village to produce his federal entry permit for inspection while at the Nexus Site of which Village was the occupier;

•  s 499 of the FW Act on 11 March 2014 by exercising a State or Territory OHS right and failing to comply with a reasonable request made by Village to comply with an occupational health and safety requirement that applied to the Harrison Site of which Village was the occupier, namely, to not walk around the Harrison Site unaccompanied; and

•  s 503(1) of the FW Act on 11 March 2014 by taking action, reckless as to whether the impression was given, that he was authorised by Part 3-4 of the FW Act to enter the Harrison Site, of which Village was the occupier, unaccompanied, and that Village’s “2 person visitor rule” was not reasonable and did not comply with legislation regulating permit holders.

[6] In connection with the declared contraventions the Court ordered that Mr O’Mara pay a penalty:

•  in the sum of $4,500 in respect of his contravention of s 497 of the FW Act that occurred on 21 August 2013 at a construction site described as the Nexus Site; and

•  in the sum of $7,500 in respect of his contraventions of ss 499 and 503(1) of the FW Act that occurred on 11 March 2014 at a construction site described as the Harrison Site.

[7] As to the CFMMEU, the Court declared that in the respect of Mr O’Mara’s contravention of s 503(1) of the FW Act on 11 March 2014, the CFMMEU:

•  engaged in O’Mara’s conduct by operation of s 793(1) of the FW Act;

•  had the state of mind of O’Mara at the time of that conduct by operation of s 793(2) of the FW Act; and

•  thereby itself contravened s 503(1) of the FW Act on 11 March 2014.

[8] The CFMMEU was ordered to pay a penalty in the sum of $28,000 in respect of its contravention of section 503(1) of the FW Act that occurred on 11 March 2014 at the Harrison Site.

[9] Relevant factual findings underpinning the declarations relating to Mr O’Mara and the CFMMEU noted above are to be found in that Hall Liability judgment.

[10] Section 503(1) of the FW Act provides that a person must not take action with the intention of giving the impression; or reckless as to whether the impression is given, that the doing of a thing is authorised by Part 3-4 of the FW Act if it is not so authorised.

[11] It is the finding that Mr O’Mara contravened s 503(1) of the FW Act and the imposition of a penalties on Mr O’Mara for contravening ss 497, 499 and 503(1) and on the CFMMEU by reason of the s 503(1) contravening conduct (and for which pursuant to ss 793(1) and (2) the CFMMEU was found also to have contravened s 503(1)) which are said to engaged s 510(1), specifically paragraphs (a) and (d). This was common ground at the outset,⁷ but for reasons to which I will shortly come, is no longer so in respect of the finding that Mr O’Mara contravened s 503(1). Section 510 relevantly provides:

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);

....

(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

(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.

[12] Sections 497, 499, 503 and 510 of the FW Act are part of a right of entry scheme established by Part 3-4 of the FW Act. The object of Part 3–4 of the FW Act is to be found in s 480:

480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.

[13] In Maritime Union of Australia v Fair Work Commission⁸ a Full Court of the Federal Court made the following observations about Part 3-4 of the FW Act:

Although the questions for resolution may be stated simply, it is important to recognise at the outset that Part 3-4 of the Fair Work Act fundamentally modifies common law rights.

A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62 thus observed:

The right of entry contemplated by s 42A of the FW Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.

See also: Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 439 to 440 per von Doussa J.

Section 480, extracted at [8] above, sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.

It is thus not surprising that the legislature has confined the category of persons who may be clothed with such powers to those persons who are “fit and proper”.⁹

[14] As should be evident from the terms of s 510 of the FW Act the occurrence of an event identified in ss 510(1)(a) to (f) since the date on which the first of any entry permits held by a permit holder was issued, results in a suspension or revocation of the relevant permit or permits, unless s 510(1) does not apply by reason of s 510(3) or the Commission exercises a discretion under s 510(2) not to suspend or revoke an entry permit because of the happening of an event in s 510(1)(d) or (f) once it is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.

[15] As I have observed previously, the exercise of the Commission’s powers and functions under ss 510(1) and 510(2) is to be informed, not by the need to punish a permit holder, but rather by the need to establish or maintain a balancing of rights and obligations between employees, registered organisations, occupiers of premises and employers. The power in s 510 is protective and corrective, not penal.¹⁰

[16] Moreover in deciding whether a suspension or revocation of an entry permit would be harsh or unreasonable; whether to revoke rather than suspend an entry permit; and the duration of any suspension and/or ban period, it will be relevant to have regard to the extent to which the Commission can have confidence that the permit holder would exercise her or his rights as a permit holder under the FW Act in a manner which achieves the necessary balance between the rights mentioned in s 480 of the FW Act.¹¹

[17] It seems, on the face of the written submission, uncontroversial that the circumstances in s 510(1) of the FW Act (ss 510(1)(a) and 510(1)(d)) which are relevantly engaged in relation to Mr O’Mara’s permit have not previously been taken into account in relation to an entry permit held by Mr O’Mara. No action has previous been taken in relation to an entry permit held by Mr O’Mara under s 510(1). The exception in s 510(3) is therefore not engaged. Before considering whether to suspend or revoke Mr O’Mara’s entry permit under s 510(1) it is necessary to say something about the ‘exception’ in s 510(2). The submissions of both the Commissioner and the CFMMEU appear to proceed on the misapprehension that the exception has application to the entirety of the matters in s 510(1), but this is not the case. As is evident from the sub-section, the discretion available therein is exercisable only in respect of a limited number of matters which engage s 510(1). The s 510(2) discretion is available only to avoid a suspension or revocation of an entry permit “under paragraph (1)(d) or (f)”. That is, a consideration whether a suspension or revocation of Mr O’Mara’s entry permit would be harsh or unreasonable in the circumstances, and if so whether the discretion conferred by s 510(1) should be exercised, arises only if s 510(1) is enlivened by reason of the happening of an event described in paragraph (1)(d) or (f).

[18] Whether Mr O’Mara was “found” to have contravened s 503(1) in the Hall Liability judgment (delivered on 7/12/2018) or the Hall Penalty judgment (delivered on 17/09/2020) (or both) is a matter requiring determination. It is relevant to assessing when the circumstance in s 510(1)(a) “happened” and whether it happened “since” the first permit held by O’Mara was issued. The issue was not addressed in the parties’ written or oral submission. After I reserved my decision, I raised the issue with the parties and invited further written submissions.

[19] It appears the only entry permit held by Mr O’Mara was issued on 13 June 2019. Although the word “held” when used as a verb is the past tense and past participle of “hold”, its use in s 510(1) appears to me to be as a transitive verb, connoting the permit holder being is possession of a valid and unexpired permit. On 7 December 2018, Mr O’Mara held an entry permit but that permit expired on 13 June 2019 by reason of an extension pursuant to s 516(2). It was returned to the Commission on 19 June 2019 as required by s 517(1)(c). It seems to me that an expired and returned permit is no longer held by a permit holder, nor is it capable of being suspended or revoked. Therefore, the only relevant permit held by Mr O’Mara for the purposes of s 510 is the current permit he holds which was issued on 13 June 2019. Both the CFMMEU and the Commissioner agree. 12

[20] As I have indicated, the question when Mr O’Mara was “found” to have contravened s 503(1) requires determination for the purpose of deciding when the circumstance in s 510(1)(a) “happened” and whether it happened “since” the first permit held by O’Mara was issued – was Mr O’Mara “found” to have contravened before or after his permit was issued on 13 June 2019? If so found by the Hall Liability judgment delivered on 7/12/2018, then it was before the permit’s issue and s 510(1)(a) is not engaged. If the relevant finding is made Hall Penalty judgment delivered on 17/09/2020, then Mr O’Mara was found to have contravened s 503(1) ‘since’ his permit was issued.

[21] The CFMMEU contends the relevant and operative finding of a contravention by Mr O’Mara of s 503(1) is in the Hall Liability judgment. In that judgment the Court found that in 2013 and 2014 Mr O’Mara had contravened ss 497, 499 and 503(1) of the FW Act and in respect of s 503 the Court’s finding of contravention is set out at [650] and [655]. 13 The CFMMEU contends that in the Hall Penalty judgment the Court did not make any finding that Mr O’Mara had contravened s 503(1) and instead determined the appropriate form of the declarations and penalties to be imposed in respect of the contravention of s 503(1) which had been found in the Hall Liability judgment delivered on 7 December 2018.14 It says that the relevant triggering event in s 510(1)(a) did not happen “since” Mr O’Mara’s permit was issued on 13 June 2019 and s 510(1)(a) is not engaged.15

[22] The Commissioner contends that it is clear Mr O’Mara was not “found” to have contravened s 503(1)(a) of the FW Act on the date of the Hall Liability judgment because that judgment lacked finality. 16 This was because:

•  after the Hall Liability judgment was delivered an apparent error in the judgment was identified;

•  the Commissioner wrote to Judge Neville with the consent, relevantly, of the CFMMEU and Mr O’Mara arguing that, since the Hall Liability judgment Liability had not entailed entering orders to bring the litigation to finality, it did not have the sufficient character of finality and it was open to Judge Neville to correct certain errors contained in the Hall Liability judgment; and

•  Judge Neville agreed as to the lack of finality of the Hall Liability judgment and subsequently issued a supplementary judgment on 23 September 2019 to correct the errors in the Hall Liability judgment 17.18

[23] The Commissioner submits that the Hall Liability judgment did not finally find that Mr O’Mara contravened s 503(1) of the FW Act and that finding was not finalised until the Hall Penalty judgment on 17 September 2020. 19

[24] The Commissioner also relies on the circumstances in which an adjournment was sought and granted during a directions hearing before me on 1 February 2019. The Commissioner contends that had Mr O’Mara been “found” to have contravened s 503(1) of the FW Act in the handing down of the Hall Liability judgment, there would have been no basis for the CFMMEU to ask for the adjournment of the present proceedings and no basis for the Commission to grant it (except perhaps to cater for a 21-day appeal period). 20 As the CFMMEU points out, the proceeding under s 510(1) was adjourned to allow the Court proceeding to be finalised to allow the CFMMEU and Mr O’Mara to exercise any appeal rights. As the proceeding had not been finalised and no orders had been made the CFMMEU and Mr O’Mara were at that time unable to exercise any appeal rights in respect of the s 503(1) finding. Perhaps the Commissioner is correct that, a shorter adjournment should have been granted, which might have allowed the s 510(1)(a) triggering event to be dealt with by reference to the permit then in operation. But it was not. Be that as it may, the question which requires determination nonetheless is when was Mr O’Mara “found” to have contravened s 503(1)?

[25] I consider that Mr O’Mara was “found” to have contravened s 503(1) as set out at [650] and [655] of the Hall Liability judgment for the following reasons.

[26] First, s 510(1)(a) of the FW Act is directed at a “finding” of a contravention, that is, that Mr O’Mara was found, in a proceeding under the FW Act, to have contravened s 503(1). In contrast with s 510(d), s 510(1)(a) is engaged at an earlier stage, when the contravention finding is made, not when an order to pay a pecuniary penalty had been made. Nor does s 510(1)(a) speak of the necessity for a declaration as to the contravention.

[27] Second, Hall Liability judgment contains a clear finding that Mr O’Mara contravened s 503(1), for example at [650] Judge Neville said:

650. Regarding the contravention against Mr O’Mara regarding a breach of s.503 of the FW Act, I find that on the evidence (summarised below) there was such a breach on the Harrison site on this occasion.

[28] Third, that the proceeding was not finalised at the Hall Liability judgment stage is not to the point. Section 510(1)(a) of the FW Act is concerned with when a permit holder has been found to have contravened s 503(1), not when a penalty for the contravention is imposed or when the proceeding is otherwise finalised.

[29] Fourth, in the Hall Penalty judgment Judge Neville set out a roadmap of contraventions in relation to which His Honour observed:

9. The following roadmap of contraventions was filed in Court on 30th January 2020. It provided an overview of the contraventions found to have been established, as set out in the liability judgments. As will be seen, the roadmap helpfully provides reference to the relevant pages of the judgments, thus:

•  Roadmap of Contraventions

•  1. This document is filed by the Applicant, and the First, Third, Fourth, Fifth, Sixth and Seventh Respondents pursuant to the Court’s orders dated 14 November 2019.

•  2. This document summarises the contraventions found by the Court in Commissioner of the Australian, Building and Construction Commission v  Hall  & Ors [2018] FCCA 3532 as varied by the supplementary judgement in Commissioner of the Australian, Building and Construction Commission v  Hall  & Ors (No. 2) [2019] FCCA 2055.

•  3. The First, Third, Fourth, Fifth, Sixth Seventh Respondents reserve their rights to make submissions to the Court in respect to whether the Court should make declarations in respect of the below findings and the form of any declarations.

[30] The Roadmap was filed relevantly by the Commissioner, Mr O’Mara (Fourth Respondent) and the CFMMEU (Seventh Respondent) and is said to summarise “the contraventions found by the Court” in the Hall Liability judgment. The Roadmap cites [650] and [655] of the Hall Liability judgment as foundation for the summary of the s503(1) contravention “found” by the Court in the Hall Liability judgment. Further, Hall Penalty judgment Judge Neville said:

19. In my view, in the light of the Court’s earlier determinations in the liability judgment, strictly speaking the foundations for the declarations sought by the Applicant have already been established, and the relief granted. At [684] of the liability judgment, the Court directed the parties to provide an “agreed Minute of the Declarations and Orders” that reflected the Court’s findings. What is actually sought now is simply the formalisation of the declarations determined and ordered by the Court to be properly made. As such they are “vindicatory” in the sense described by the House of Lords in Ashley v Chief Constable for Sussex set out earlier in these reasons.

[31] This is all consistent with the relevant contravention having been “found” in the Hall Liability judgment and not later.

[32] Fifth, no relevant finding of Mr O’Mara having contravened s 503(1) is made in the Hall Penalty judgment. Only a declaration to ‘formalise’ the finding of the contravention earlier made.

[33] It follows that as the relevant event (the finding that O’Mara contravened s 503(1) of the FW Act) happened before and not since Mr O’Mara’s current and only permit held was issued, section 510(1)(a) is not engaged.

[34] The same issue does not arise in respect of the happening of the other events in s 510(1)(d) because, since the permit Mr O’Mara holds was issued, he was ordered to pay a penalty in respect of the of ss 499 and 503(1) contraventions and the CFMMEU was ordered to pay a penalty in respect of the s 503(1) contravention constituted by Mr O’Mara’s conduct (pursuant to ss 793(1) and (2)). Mr O’Mara was also ordered to pay a penalty for contravening s 497. It is therefore necessary in respect of these triggering events whether the discretion in s 510(2) should be exercised.

[35] Most of the matters that are relevant in assessing whether suspension or revocation of Mr O’Mara’s entry permit would be harsh or unreasonable in the circumstances are also uncontroversial. These include the objects 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 permit might have on the organisation, its members, and the permit holder; whether training has been undertaken by the entry permit holder since the events; and general character evidence.²¹ These are not an exhaustive list of matters which may be relevant to the assessment.

[36] The CFMMEU contends that the Commission should be satisfied that it would be harsh and/or unreasonable to suspend or revoke Mr O’Mara’s entry permit for several reasons. First, because it would be inappropriate in the circumstances. The CFMMEU says it is inappropriate because in Application by Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Australian Capital Territory Divisional Branch²² (O’Mara permit decision) Deputy President Saunders concluded that Mr O’Mara was a fit and proper person to hold an entry permit notwithstanding his contraventions found in the Hall Liability judgment. In the result, the CFMMEU contends that suspension or revocation would be inconsistent with the conclusion in O’Mara permit decision and so would not be fair and just.²³

[37] The Commissioner joins issue with the proposition that the test of harshness or unreasonableness in s 510(2) can be reduced to the question of whether it is “not appropriate” to revoke or suspend the permit. As to the substance of the CFMMEU’s contention, the Commissioner points to the terms of s 510(1) of the FW Act and says that Mr O’Mara’s relevant contravening conduct have the result that his entry permit must be revoked or suspended due to the operation of s 510(1), unless the Commission is satisfied that the exception in s 510(2) applies.²⁴ The issue is whether the O’Mara permit decision renders it harsh or unreasonable to proceed with the otherwise mandatory revocation or suspension of Mr O’Mara’s permit. The Commissioner says the O’Mara permit decision does not have this result.²⁵

[38] Although other synonyms may from time to time be used to describe action under s 510(1) that is harsh or unreasonable, the ultimate question under s 510(2) is whether suspension or revocation or Mr O’Mara’s entry permit would be harsh or unreasonable in the circumstances. Thus, a form of action taken under s 510(1) might be unreasonable in the circumstances because it is not appropriate taking into account all of the circumstances. But not every action under s 510(1) that might be described as not appropriate means the action is unreasonable or harsh in the circumstances. The words “harsh or unreasonable” are directed to the action under s 510(1), that is, the mandatory suspension or revocation.

[39] I reject the CFMMEU’s submission that it is not appropriate (and presumably harsh or unreasonable) to take action under s 510(1) because the relevant contraventions underlying the triggering events have been considered in the O’Mara permit decision in which Mr O’Mara was assessed as a fit a proper person to hold a permit. The Deputy President did not consider the triggering events. These events had not happened and as the Deputy President observed: “I accept that Judge Neville has not yet determined the significance of the findings made against Mr O’Mara. His Honour has not yet determined whether those findings warrant any declaration being made or any penalty (and if so the size of that penalty) being imposed on Mr O’Mara”.²⁶ It is the triggering events, in this case the imposition of penalties, which are relevant. In any event, as should be clear from the earlier discussion, one relevant contravention assessed by the Deputy President was the s 503(1) contravention, which if it were a triggering event under s 510(1)(a) is not caught by the available discretion in s 510(2). In the circumstances, that the findings of contravening conduct were taken into account in the O’Mara permit decision does not weigh in favour of concluding that suspension or revocation would be harsh or unreasonable as the triggering events were not and could not at the time be considered.

[40] Next the CFMMEU contends that the nature and gravity of Mr O’Mara’s contraventions of Part 3-4 in found in the Hall Liability judgment weigh in favour of concluding that a suspension or revocation of Mr O’Mara’s permit would be harsh and/or unreasonable.²⁷ It says Mr O’Mara’s conduct in contravening s 497, which involved a failure by Mr O’Mara to produce his federal entry permit for inspection when he was asked to do so by an occupier, is described in the Hall Penalties judgment as “negligence or even foolhardiness”.²⁸ The CFMMEU points a dispute in the evidence about whether Mr O’Mara had been asked to produce his federal entry permit as well as his WHS permit, with Mr O’Mara giving evidence that he was only asked to produce his WHS permit which he did. However, the Court ultimately found that Mr O’Mara had been asked to produce both permits and that Mr O’Mara had failed to produce his federal entry permit for inspection after he had been asked to do so.²⁹

[41] The CFMMEU contends that Mr O’Mara’s conduct in contravening s 503(1)(b) was characterised by the Court as “reckless” as opposed to acting intentionally and says that as Mr O’Mara’s conduct was not deliberate and is properly characterised as reckless this is an important matter in assessing the gravity and nature of the contravention.³⁰ As to the s 499 contravention, the CFMMEU contends that although Mr O’Mara’s view was not determinative of liability, his view that he considered and believed the request was unreasonable is an important matter in assessing the gravity and nature of the contravention because it shows the conduct was not deliberate and is properly characterised as inadvertent.³¹

[42] It further says that as Deputy President Saunders concluded that Mr O’Mara was a fit and proper person to hold an entry permit despite his contraventions in the O’Mara permit decision the Commission should conclude that it would be harsh and/or unreasonable to now suspend or revoke Mr O’Mara’s permit for conduct that did not satisfy the Commission that he was not a fit and proper person to hold an entry permit. 32

[43] For the reasons earlier given, this last submission is rejected.

[44] As to the s 497 contravention I do not accept the notion advanced by the CFMMEU that Mr O’Mara’s contravention should be regarded less seriously because of the evidence he gave at trial that he was only asked to produce his WHS permit. Plainly his evidence was not accepted and the evidence to the contrary given by other witnesses was preferred by the Court. Mr O’Mara was found to have contravened the provision and a penalty was imposed. No appeal has been brought in relation to the finding.

[45] I accept the Commissioner’s submission that the CFMMEU’s contention that I should take into account that in the Hall Penalties judgment the fact the Court described Mr O’Mara’s conduct in relation to this contravention as “negligence or even foolhardiness”, should be considered in light of other pertinent comments of the Court bearing upon the nature and gravity of this contravention. However, the extracted sentences of [92] of the Hall Penalties judgment in the Commissioner’s submission also do not tell the whole story. At [92]-[93] the Court said:

As stated in the principal liability judgment, the contest here was a needless one, particularly having regard to the long experience of the senior Union officials involved. They should have known, and acknowledged that they did in fact know, the requirement to produce the relevant entry permits when requested to do so on site. As stated in the principal liability judgment, not to have done so here (including producing a shrunken version of the relevant permit) was at least “negligent” and a needless obstacle. In my view, such negligence or even foolhardiness, which is not a completely inapt description here, do not (without more), in my view, warrant penalties “at the high range of the available maximum.”

The Applicant seeks a penalty against Mr Hall (and likewise against Mr O’Mara) of between $7,140 – $10,200. The Respondent seeks a penalty in the range of $2,040 – $3,060. In my view, having regard to the objective seriousness of the contravention and the principles outlined above, the appropriate penalty for this contravention should be fixed at $4,500.00.³³

[46] I also accept that other observations about Mr O’Mara’s conduct made by the Court are relevant in assessing the nature and gravity of his s 497 contravention. Relevantly the Court said:

In the light of the comments by the Full Court in the Castlemaine Police Station Case, it also needs to be noted that all of the individual Respondents, with perhaps the exception of Mr Smith, were significantly experienced Union officials. Further, Mr Hall and Mr O’Mara relevantly held leadership positions in the Union for quite some time. In my view, as indicated in the liability judgments, the individual Respondents reasonably had a duty to inform themselves, and should have known basic principles/procedures in relation to things like compliance with entry permit requirements. Indeed, to the extent relevant, the Court may take some “notice” of the fact that the Union is long experienced in industrial matters, as are usually most of its officials. This is also to say that no one could argue (and it was not argued in the current matter) that the Union (or its officials) did not relevantly know basic formal and operational requirements regarding entry permits, and what was reasonable and proper conduct on building sites.

In my view, the Union and its officials also had a duty to ensure that its employees were properly educated in matters relating to their day-to-day responsibilities. This would include things like the status and applicability of various (and varying) site requirements whereby, for example, site inspections regularly if not invariably involve Union officials being inducted onto a site and accompanied while inspecting it. Had such education occurred, and been followed, it is likely that some (indeed possibly many) of the contraventions established here would not have occurred. Moreover, in my view, the senior members of the Union, especially the senior officials, should have set an example by their conduct on building sites – to be civil, properly informed and knowledgeable, and reasonably skilled in negotiation with on-site managers. Bluff and bluster – or worse – have no place on any building site – or elsewhere.³⁴

[47] It is in my view evident from the above that the nature and gravity of the s 497 contravention is serious but not of such order as would have warranted the fixing of a penalty at the higher end of the permissible range. The contravening conduct was not trivial or inadvertent and was engaged in by a senior and experienced official who “should have set an example by their conduct on building sites – to be civil, properly informed and knowledgeable, and reasonably skilled in negotiation with on-site managers”. It is in this context that the later observation that the conduct involved “negligence or even foolhardiness” is to be understood. Consequently, the nature and gravity of the s 497 contravention does not weigh in favour of a conclusion that suspension or revocation would be harsh or unreasonable.

[48] As to the CFMMEU’s contentions about the nature and gravity of the 11 March 2014 ss 499 and 503(1) contraventions, I do not accept that the conduct constituting the s 499 contravention can properly be described as inadvertent given the Court’s assessment set out shortly below. Moreover, whilst I accept that the recklessness finding is relevant to assessing the nature and gravity of the s 503(1) contravention, it is to be understood in the context of the Court’s observations about the conduct:

In short, regarding the s.499 breach, the Applicant submitted that Mr O’Mara’s conduct on this occasion demonstrated clear defiance of Village’s site safety rules in order “to make a point.” The Applicant said (at par.61) that Mr O’Mara showed “flagrant disregard” of the site occupational health and safety requirements.

Regarding the s.503(1) breach, the Applicant submitted that the objective seriousness of the breach and the “reckless” conduct of Mr O’Mara, whatever his subjective view about the “two person visitor rule”, warranted a penalty at the higher end of the permissible range.

The Respondents submitted that Mr O’Mara’s “reckless” conduct as found by the Court at [652] of the principal liability judgment, showed there was no relevant “intent” on his part. The Respondents also said (par.127 of their primary submissions) that the Court accepted (at [645]) Mr O’Mara’s evidence that the two person site rule was unreasonable. The Court did not say this. At [645] the Court said:

Mr O’Mara’s evidence was that he considered the “two person site rule” as “unreasonable” and contrary to “the Work Safety Act” [sic].

Simply setting out the evidence from a witness is not an acceptance of it. Moreover, at [652] – [654], the Court found that Mr O’Mara’s conduct was reckless and his statements mis-leading, as well as uninformed by proper advice. As a self-proclaimed “safety practitioner”, he not only should have known better, he should have properly sought relevant advice about the matters he was likely to have any contest on site about. He should also have acted with due restraint as a senior member and official of the Union. As stated many times in the earlier judgments in these proceedings, bluster and ill-informed comments have no place anywhere. They assist no one and tend to blur rather than to illuminate issues that properly warrant attention. To profess knowledge, and to act bluntly and forcibly upon it, when it is plainly wrong, is (and in this instance was) wilful and dangerous ignorance. This is especially so when one is in a position of authority, such as Mr O’Mara was. Ill-informed and misconceived “might” is never “right.”

In my view, this was perhaps the most glaringly inapposite conduct among the significant number of contraventions before the Court. It warrants a suitable penalty, which I fix at $7,500.00.³⁵

[49] I therefore accept the Commissioner’s contention that while the Court found Mr O’Mara to have acted recklessly rather than intentionally, that point does not reduce the gravity of his contravention of s 503 of the FW Act to any significant degree in light of the Court’s comments. In the normal course of events, a finding of a contravention of s 503 (1), whether intentional or reckless, would mandate suspension or revocation of a permit under s 510(1)(a). The contravening conduct taken together was relatively serious. In the result, the nature and gravity of the s 499 and 503(1) contraventions do not weigh in favour of a conclusion that suspension or revocation would be harsh or unreasonable.

[50] As to the impact that a suspension or revocation of Mr O’Mara’s entry permit might have on the CFMMEU, its members and the permit holder as a factor relevant in determining whether a suspension or revocation would be harsh or unreasonable, the CFMMEU contends that a suspension or revocation might have a deleterious impact on each of the CFMMEU, its members and Mr O’Mara.³⁶ This is because a right of entry permit:

•  confers important industrial rights that assist unions to effectively represent their members; and

•  provides a union official with the ability to investigate contraventions of the WHS Act and the FW Act and to organise employees.³⁷

[51] The CFMMEU says that the Work Health and Safety Act 2011 (ACT) (WHS Act) and the FW Act confer a special role on unions and their officials in monitoring and investigating compliance with various rights and obligations in those statutes. This role is all the more important in the construction industry given the notorious safety risks in the industry.³⁸

[52] Presumably, it follows that suspension or revocation has the effect of curtailing the capacity of Mr O’Mara and the CFMMEU to exercise these rights and to carry out the functions identified and, in that context, CFMMEU members or some of them might be adversely affected.

[53] The CFMMEU and Mr O’Mara could have but did not lead any evidence in support of this contention. The contention is an invitation to speculation about what impact a suspension or revocation of Mr O’Mara’s entry permit might have on him, his union, or its members. Speculation of this kind provides no proper basis to conclude anything more than that a suspension or revocation will cause some small degree of inconvenience to Mr O’Mara and the CFMMEU. There is no evidence for example of how frequently (say over the past two years) Mr O’Mara has exercised entry rights, the kinds of issues he has encountered on entry, the number of contraventions he has investigated while exercising entry rights, the number of times he has entered for a WHS purpose and the number and kinds of issues he has identified when so entering. Moreover, it must be accepted that the CFMMEU is a well-resourced organisation with an existing capacity to ameliorate the inconvenience that will follow, for example, by deploying other permit holders of the organisation to constructions sites usually serviced by Mr O’Mara. It follows that this matter does not weigh in favour of a conclusion that suspension or revocation would be harsh or unreasonable.

[54] Next is the issue of training. It is accepted that for the purposes of the CFMMEU applying for a permit to be issued to Mr O’Mara, which is the subject of the O’Mara permit decision, Mr O’Mara’s training was assessed as appropriate training for the purposes of one of the permit qualification matters which the Deputy President was required to take into account. Although relevant to assessing whether Mr O’Mara is a fit and proper person to hold an entry permit, here we are concerned with whether, by reason of Mr O’Mara having undertaken training, alone or in combination with other circumstances, and in light of the triggering events, suspending or revoking his permit would be harsh or unreasonable. With only material showing that Mr O’Mara has undertaken training and no evidence of what has been learned, or without some indication of regret or remorse for the conduct resulting in triggering events, what confidence can be garnered that the kind of conduct which led to the triggering events would not be repeated? This kind of evidence is all the more relevant in light the following observations by the Court about, inter alia, Mr O’Mara’s state of knowledge about the exercise of entry and WHS rights and his duty (and that of the CFMMEU) to become informed:

•  “. . . the individual Respondents reasonably had a duty to inform themselves, and should have known basic principles/procedures in relation to things like compliance with entry permit requirements”;³⁹

•  “. . . the Union and its officials also had a duty to ensure that its employees were properly educated in matters relating to their day-to-day responsibilities. This would include things like the status and applicability of various (and varying) site requirements whereby, for example, site inspections regularly if not invariably involved Union officials being inducted onto a site, and accompanied while inspecting it”;⁴⁰

•  “They should have known, and acknowledged that they did in fact know, the requirement to produce the relevant entry permits when requested to do so on site”;⁴¹ and

•  “As a self-proclaimed “safety practitioner”, he not only should have known better, he should have properly sought relevant advice about the matters he was likely to have any contest on site about. He should also have acted with due restraint as a senior member and official of the Union. As stated many times in the earlier judgments in these proceedings, bluster and ill-informed comments have no place anywhere. They assist no one and tend to blur rather than to illuminate issues that properly warrant attention. To profess knowledge, and to act bluntly and forcibly upon it, when it is plainly wrong, is (and in this instance was) wilful and dangerous ignorance.”⁴²

[55] In the circumstances, that Mr O’Mara has undertaken training is relevantly to be weighed in his favour, but without evidence about some of the matters I have outlined above, the weight assigned is not significant. Whilst it is true that since the contravening conduct the subject of this proceeding, Mr O’Mara has not been found to have contravened any provision of Part 3-4 of the FW Act, I agree with the Commissioner’s contention that it is relevant, at least in this context, to consider his contravention of s 47 of BCIIP Act (which deals with unlawful picketing) established in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Constitution Place Case)⁴³. Without evidence of the kind I have discussed, one cannot be confident that the training undertaken has prepared Mr O’Mara so that he would exercise his rights as a permit holder under the FW Act in a manner which achieves the necessary balance between the rights contained in s 480 of the FW Act.

[56] The CFMMEU also relies on character evidence given by Mr Kostas Livas, a Director of Livgreen Pty Ltd⁴⁴, and Mr Thomas Simmonds, the Managing Director of the Chase Group⁴⁵ about Mr O’Mara’s good character.⁴⁶

[57] Mr Simmonds and Mr Livas are directors of employers in the ACT construction industry. They have dealt directly with Mr O’Mara, but contrary to the CFMMEU submissions, neither says he has done so in Mr O’Mara’s capacity as a permit holder. Mr Simmonds and Mr Livas attest variously to Mr O’Mara’s professionalism, cooperation, his helpfulness, and common-sense approach. Whilst their evidence is relevant and is to be given some weight, it is not of significant weight. As the Commissioner points out and I accept, their evidence of Mr O’Mara’s character is brief, it does not disclose dealings with Mr O’Mara as a permit holder and is generalised rather than providing specific examples of particular dealings.

[58] A further relevant consideration is whether the Commission can have confidence that Mr O’Mara would exercise his rights as a permit holder under the FW Act in a manner which achieves the “necessary balance” envisaged by Part 3-4. In this regard the CFMMEU contends the Commission should be so confident because, since becoming an employee and officer of the CFMMEU in February 2007, he has only contravened Part 3-4 on the two discrete occasions found in Hall Liability judgment and which occurred in 2013 and 2014. It says the character evidence supports the position that the Commission can have such confidence and contends that I should conclude Mr O’Mara’s conduct over a period of 13 years indicates that the Part 3-4 contravening conduct in 2013 and 2014 was out of character and an aberration so that I can have the necessary degree of confidence that Mr O’Mara will exercise his rights as a permit holder under the FW Act in a manner which achieves the “necessary balance” envisaged by Part 3-4.⁴⁷

[59] The submission that the Part 3-4 contravening conduct in 2013 and 2014 was out of character and an aberration would carry the matter further if Mr O’Mara had given evidence to that effect and explained why that is so. However, despite it being open to him to do so, Mr O’Mara did not provide any evidence about these matters or about any remorse or contrition or as to what he has learned from the findings that his conduct was contravening conduct. Furthermore, although the contraventions occurred in 2013 and 2014 Mr O’Mara gave evidence about them in 2017. In the Hall Liability judgment, the Court observed that:

Mr O’Mara was a forceful, determined witness, with decided views on what should (and what should not) be permitted to happen on building sites. He gave the strong impression that “he knew best” in almost all circumstances and that he would be unlikely to deal comfortably or relaxedly with any opposition to his views. His determined and forceful views tended, in my view, to colour his evidence somewhat as to his partiality. Respectfully, some checking of detail about (a) relevant legislation, and (b) the rights conferred on all sides of a discussion, would be beneficial.⁴⁸

[60] Some evidence of what Mr O’Mara has learned about his conduct and the rights of others in context of the scheme established by Part 3-4 of the FW Act might have been expected to bolster an otherwise empty submission that his conduct in in 2013 and 2014 was out of character and an aberration. Further, and as the Commissioner points out, Mr O’Mara also did not provide any evidence to reflect any change in his attitude at the hearing to determine declarations and penalties which occurred in January 2020.

[61] As to the relevance of any contrition on Mr O’Mara’s part, noting that he did not give evidence of any contrition nor was any submission made on instructions suggesting some contrition or acceptance of wrong-doing, the CFMMEU contends that the Commissioner’s submissions about contrition should be rejected and that I should consider whether based on the objective facts before me Mr O’Mara has demonstrated a pattern of compliance or not.⁴⁹ Although I accept that Mr O’Mara’s ‘record’ is relevant, I do not consider this to be the same thing as, or a substitute for recognising that his conduct was wrong. The absence of contrition is not an ‘aggravating’ factor in considering matters under s 510 but it is a relevant factor. As Deputy President Colman recently observed in Paul Taylor⁵⁰ (and with which I concur):

“. . . 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.”51

[62] It is also relevant when the permit holder contends that suspension or revocation of an entry permit would be harsh or unreasonable in the circumstances. An expressed remorse for contravening conduct leading to a triggering event would be part of the circumstances in which the consideration is undertaken.

[63] Turning next to consider the relevance of the finding in the Constitution Place Case⁵² that Mr O’Mara contravened s 47 of the BCIIP Act. I do not accept the CFMMEU’s contention which is to the effect that the finding of contravening conduct of an industrial law which is not concerned with a contravention of Part 3-4 of the FW Act is not relevant to the exercise of power under s 510 and cannot be taken into account.⁵³ There is no support in the text of s 510 for that submission. The happening of one or more of the events in s 510(1)(a)-(f), subject to the exceptions in ss 510(2) and (3), mandates suspension or revocation of the permit. The exercise of the discretion to suspend or terminate is informed by the triggering events but is not confined to that event or to events of that kind when considering whether suspension or revocation would be harsh or unreasonable in the circumstances. It seems to me that the history, particularly recent history of contravening conduct by a permit of industrial laws seems to be to be part of the ‘circumstances’ against which the question whether suspension or revocation would be harsh or unreasonable, is to be assessed. This is part of assessing how exercising or refraining for exercising a particular power under s 510(1) achieves the “necessary balance” envisaged by Part 3-4.

[64] Considering and weighing the matters discussed above, I do not consider that it would be harsh or unreasonable to suspend Mr O’Mara’s permit in the circumstances.

[65] I do however consider that it would be unreasonable to revoke his permit because:

➣  Mr O’Mara was recently assessed as being a fit and proper person to hold an entry permit;

➣  there have been no adverse findings made against Mr O’Mara in relation to any contravention of Part 3-4 or more broadly of contravening conduct engaged in since the permit was issued (noting that the conduct involving the picketing contravention in the Constitution Place Case occurred in May 2018);

➣  there has been no other negative event involving any of the other permit qualifications matter; and

➣  the contravening conduct, the subject of the triggering events occurred some time ago, in 2013 and 2014.

[66] It follows that the permit must be suspended. As to the duration of any suspension the Commissioner submits that Mr O’Mara’s conduct was sufficiently serious to warrant a six month suspension period, with a ban period of three months, in lieu of any revocation.⁵⁴ The CFMMEU submits that the Commission suspend the entry permit for a period of three months.⁵⁵ I consider that a suspension of Mr O’Mara’s permit for a period of three months is appropriate because:

➣  It is the first time that action under s 510(1) will have been taken against Mr O’Mara;

➣  The contravening conduct the subject of the triggering events occurred some time ago (at least seven years ago);

➣  Mr O’Mara has recently been assessed as being a fit and proper person to hold an entry permit;

➣  The contravention found in the Constitution Place Case is not of such order or gravity as would warrant any longer period of suspension;

➣  Although the contravening conduct occurring in 2013 and 2014 resulted in more than one triggering event (three relevant contraventions in relation to which penalties were ordered to be paid and one by the CFMMEU by reason of Mr O’Mara’s s 503(1) contravention) they occurred some time ago and generally involved reckless and negligent conduct rather than deliberate conduct.

[67] In these circumstances, ascribing a longer suspension period starts to bear the hallmarks of punitive action rather than establishing or maintaining a balancing of rights and obligations between employees, registered organisations, occupiers of premises and employers.

[68] I will also fix a ban period under ss 510(5) and (6) of the FW Act beginning on the date of this decision and ending at the end of a period of three months. Mr O’Mara is reminded of his obligation under s 517(1) to return the suspended permit to the Commission within 7 days of the date of this decision. At the end of the suspension period, the permit will be returned to Mr O’Mara on application by the CFMMEU or Mr O’Mara. 56

Orders

[69] I order:

1. Pursuant to s 510(1) the entry permit held by Jason Lawrence O’Mara is suspended for a period of 3 months commencing on the 2 June 2021;

2. Pursuant to s 510(5) I ban the issue of any further entry permit to Jason Lawrence O’Mara for a period of 3 months commencing on the 2 June 2021.

DEPUTY PRESIDENT

Appearances:

C Dowling S.C of Counsel for the Construction, Forestry, Maritime, Mining and Energy Union
P Bindon of Counsel for the Australian Building and Construction Commissioner

Hearing details:

2021
Melbourne
19 March 2021

Printed by authority of the Commonwealth Government Printer

<PR730368>

1 [2018] FCCA 3532

2 Ibid at [82]

3 Ibid at [649]

4 Ibid at [650], [655]

 5   Ibid at [682]

6 [2020] FCCA 2352

7 CFMMEU’s Outline of Submissions at [20]; Submissions of the Australian Building and Construction Commissioner at [16]

8 [2015] FCAFC 56

9 Ibid at [13]-[16]

10 In the matter of the Entry Permit of Blake Patrick Hynes [2020] FWC 97 at [16]

11 Fair Work Commission v Stephen Long [2017] FWC 6867 at [25]

 12   CFMMEU’s further written submissions (6 May 2021) at [2]; Further submissions of the Australian Building and Construction Commissioner (13 May 2021) at [4]-[9]

 13   CFMMEU’s further written submissions (6 May 2021) at [4]

 14   Ibid at [9]

 15   Ibid at [10]

 16   Further submissions of the Australian Building and Construction Commissioner (13 May 2021) at [22]

 17   Commissioner of the Australian Building and Construction Commission v Hall & Ors (No.2) [2019] FCCA 2055

 18   Further submissions of the Australian Building and Construction Commissioner (13 May 2021) at [15]-[18]

 19   Ibid at [22]

 20   Ibid at [17], [23]

21 See Parker and others [2011] FWA 2577 at [27]-[29]

22 [2019] FWC 4087

23 CFMMEU’s Outline of Submissions at [24]-[25]

24 Submissions in Reply of the Australian Building and Construction Commissioner at [4]-[7]

25 Ibid at [8]-[25]

26 Application by Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Australian Capital Territory Divisional Branch [2019] FWC 4087

27 CFMMEU’s Outline of Submissions at [27]

28 Ibid at [30]

29 Ibid at [29]

30 Ibid at [34]

31 Ibid at [33]

 32   Ibid at [35]

33 [2020] FCCA 2352 at [92]-[93]

34 Ibid at [86]-[87]

35 Ibid at [122]-[126]

36 CFMMEU’s Outline of Submissions at [38]

37 Ibid at [37]

38 Ibid

39 [2020] FCCA 2352 at [86]

40 Ibid at [87]

41 Ibid at [92]

42 Ibid at [125]

43 [2020] FCA 1070

44 Witness Statement of Kostas Livas

45 Witness Statement of Thomas Simmonds

46 CFMMEU’s Outline of Submissions at [45]-[48]

47 CFMMEU’s Outline of Submissions at [49]-[51]

48 [2018] FCCA 3532 at [613]

49 CFMMEU’s Outline of Submissions at [52]-[54]

50 [2021] FWC 431

51 Ibid at [31]

52 [2020] FCA 1070

53 CFMMEU’s Outline of Submissions at [55]-[57]

54 Submissions of the Australian Building and Construction Commissioner at [52]

55 CFMMEU’s Outline of Submissions at [66]

 56   Fair Work Act 2019, s 517(2)