[2022] FWC 1146

The attached document replaces the document previously issued with the above code on 16 May 2022.

Appearances set out at end of decision amended to correct details of Counsel appearing for the CFMMEU.

Associate to Deputy President Gostencnik

17 May 2022

[2022] FWC 1146
FAIR WORK COMMISSION

DECISION


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

In the matter of the Entry Permit of Mr Justin Brendon Lee Hobson
(RE2021/1335)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 16 MAY 2022

Revocation/suspension of entry permit of Justin Brendon Lee Hobson

[1] Mr Justin Brendon Lee Hobson is employed as an organiser by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) in its Construction and General Division, NSW Divisional Branch and has been so employed since 5 July 2017. He holds a right of entry permit issued under the Fair Work Act 2009 (Act) on 30 July 2020. He has held a permit under the Act since 4 August 2017 as well as holding WHS entry permits under the Work Health and Safety Act 2011 (NSW) (WHS Act) since 1 August 2017. In Australian Building and Construction Commissioner v Holl (The Wheeler Cranes Case)1 the Federal Court of Australia relevantly declared that Mr Hobson had, pursuant to s 550(1) of the Act, aided and abetted, or was knowingly concerned in or party to:

(i) Mr Brendan Holl’s contravention of s 500 of the Act on 19 October 2018; and

(ii) Mr Holl’s contravention of s 500 of the Act on 22 October 2018.

[2] Mr Holl was at the relevant time also an organiser employed by the CFMMEU and a permit holder under the Act. He has since cease employment with the CFMMEU and has returned his permit to the Commission. In the Wheeler Cranes Case the Court declared that Mr Holl had contravened s 500 of the Act:

(i) on 19 October 2018 at the San Clemente High School, Mayfield, Newcastle, New South Wales, while exercising or seeking to exercise rights in accordance with Pt 3-4 of the Act by intentionally hindering or obstructing Wheeler Cranes & Services Pty Ltd and North Constructions Pty Ltd from performing work by the use of a Wheeler Cranes’ crane; and

(ii) on 22 October 2018 at the Kooragang Coal Terminal, Kooragang Island, New South Wales, while exercising or seeking to exercise rights in accordance with Pt 3-4 of the Act by intentionally hindering or obstructing Wheeler Cranes and Port Waratah Coal Services from operating and performing work by the use of a Wheeler Cranes’ crane.

[3] The Court declared that Mr Hobson had contravened s 500 of the Act:

(i) on 19 October 2018 at the San Clemente Site by aiding, abetting, and/or being knowingly concerned in, or party to, Mr Holl’s contravention by being present when, aligning himself with and not disassociating himself from the conduct of Mr Holl; and

(ii) on 22 October 2018 at KCT by being knowingly concerned in, or party to, Mr Holl’s contravention by being present when, aligning himself with and not disassociating himself from the conduct of Mr Holl

[4] The Court ordered Mr Hobson to pay a civil penalty of $6,000 for each of his contraventions of s 500 of the Act – a total of $12,000.

[5] The Court also declared that the CFMMEU contravened s 500 of the Act on 19 and on 22 October 2018 by reason of s 550(2) and by the conduct of Mr Hobson and Mr Holl on those dates and was ordered to pay a $50,000 penalty for each contravention – a total of $100,000.

[6] Relevant also, is the fact that Mr Holl contravened s 52(b) of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) on 19 October 2018 at the Newcastle TAFE Site at 590 Hunter Street, Newcastle, New South Wales (the Newcastle TAFE Site) by reason of his conduct against 3 Cross Pty Ltd (3 Cross) by entering the site without a proper legal basis and refusing to leave the site until the Wheeler Cranes’ crane was removed, with an intent to coerce 3 Cross to not engage Wheeler Cranes as a building contractor. Mr Hobson also contravened s 52(b) of the BCIIP Act on 19 October 2018 at the Newcastle TAFE Site by aiding, abetting, and/or being directly or indirectly knowingly concerned in Mr Holl’s contravention by being present when, aligning himself with and not disassociating himself from the conduct of Mr Holl.

[7] These are relevant because they provide context to the triggering events, they concern conduct involving entering onto a site without a proper legal basis, and they concern conduct intended to affect Wheeler Cranes, the object also of the s 500 contraventions.

[8] The consequence of the imposition of penalties on Mr Hobson for contravening s 500 of the Act and on the CFMMEU is that the Commission’s jurisdiction pursuant to s 510(1)(d) of the Act is engaged.

[9] The proceeding under s 510(1) of the Act involves a building industry participant within the meaning of the BCIIP Act. The Australian Building and Construction Commissioner (Commissioner) gave written notice on 6 December 2021 that he intervenes in the proceeding pursuant to s 110 of the BCIIP Act.

[10] The Commission must revoke or suspend the entry permit held by Mr Hobson unless action under s 510(1) has previously been taken and the circumstances which now enliven the jurisdiction were into account. This does not arise here. The Commission is also not required to take action if satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.

[11] Section 500 of the Act is part of a right of entry scheme established by Part 3-4. The object of Part 3–4 is to be found in s 480 which provides:

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.

[12] In Maritime Union of Australia v Fair Work Commission2 a Full Court of the Federal Court made the following observations about Part 3-4 of the 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.

[13] 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 Act does not prescribe any factors that must be taken into account in the Commission’s assessment of whether a suspension or revocation of the entry permits would be harsh or unreasonable, however it is now well established that the power in s 510(1) considered in the context of s 510(2) is to be guided by protective and corrective considerations, not penal consideration.4 The need for specific or general deterrence are matters for the court in considering the penalty that should be imposed in relation to a given contravention. 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 Act in a manner which achieves the necessary balance between the rights mentioned in s 480 of the Act.5 In this respect the question of the deterrent effect of any penalty imposed on the permit holder by a court in respect of the contravening conduct that gave rise to the triggering event may be relevant.

[14] Other relevant matters in assessing whether suspension or revocation of an entry permit under s 510(1) would be harsh or unreasonable in the circumstances 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/s 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.6

[15] The circumstances in which Mr Hobson engaged in the contravening conduct on 19 October 2019 follow. North Construction and Building Pty Ltd (North Construction) was the principal contractor occupying a construction project in Mayfield near Newcastle in New South Wales known as the San Clemente Site. Wheeler Cranes had been engaged by North Construction to carry out ‘building work’ within the meaning of s 6 of the BCIIP Act at the San Clemente Site.7 At about 11:45 am, Mr Holl arrived at the San Clemente Site in a red utility which he parked partly across the site vehicle access blocking the entry or egress of vehicles into and out of the site. Mr Hobson arrived in a separate vehicle. At this time, both Mr Holl and Mr Hobson reasonably suspected that one or more contraventions of the WHS Act had occurred or were occurring. They entered the San Clemente Site without any notice or warning to North Construction and without notifying any North Construction personnel of their presence, and walked to where the Wheeler Cranes’ crane was operating just inside the gate.8

[16] On learning of the entry, Mr Freeman the Site Forman and Mitchell Earl a Leading Hand walked from the site office to the Wheeler Cranes’ crane to speak to Mr Holl and Mr Hobson and the following occurred:

•  Mr Freeman requested that Mr Holl and Mr Hobson go to the site office to sign the site visitors register and undergo a site induction.

•  Mr Holl said to Mr Freeman “We don’t have to do shit, we’ve told you this before, we don’t sign shit. We’ve been inducted, our permit is our induction”, and “We’ve already done your site induction last time we were here”.

•  Mr Freeman said to Mr Holl and Mr Hobson “No you haven’t you just sat in the lunchroom and refused to do it until you left the site”.

•  Mr Holl said to Mr Freeman “No, we’ve already done it, we’re not leaving the site”.

•  Mr Freeman said to Mr Holl and Mr Hobson “Come and speak in the office, so we’re in a safe area and not in the middle of the construction site”.

•  Mr Holl said to Mr Freeman “No we’re not moving from the crane”.

•  Mr Freeman said to Mr Holl and Mr Hobson “You need to comply with any reasonable request by the PCBU and you need to follow our policies and procedures. You need to report to the site office, sign in and do a visitor induction. We know nothing about you, I don’t know your medical history. Who do I call if something happens on site?”.

•  Mr Holl said to Mr Freeman “Stop playing games, you’re playing games”.

•  Mr Freeman again asked Mr Holl and Mr Hobson to attend the site office, which they refused to do.

•  Mr Freeman and Mr Earl asked to see their entry permits, and Mr Holl showed Mr Freeman his entry permit and Mr Hobson showed Mr Earl his entry permit.

•  Neither Mr Holl nor Mr Hobson provided Mr Freeman or Mr Earl with a notice of entry under s 119 of the WHS Act or specified any safety issues with the Wheeler Cranes’ crane.9

[17] Mr Holl and Mr Hobson proceeded to inspect the Wheeler Cranes’ crane which stopped when they were present in the slew area and while doing so, Mr Holl and Mr Hobson entered an area where materials were stored and walked across materials stacked on the ground. A conversation to the following effect then occurred:

•  Mr Freeman said to Mr Holl and Mr Hobson: “That is not the walkway”.

•  Mr Holl said “I can walk anywhere because there are no signs and bunting to tell me otherwise”.

•  Mr Freeman said to Mr Holl and Mr Hobson “You guys just walked over materials deliberately. I’m going to take photos of this as evidence. You didn’t do an induction, we would be liable if you hurt yourself”.

•  Mr Holl said “There is no exclusion zone so we will walk wherever we want. You can’t take photos of us, you can’t take videos. Watch what happens when you take videos of us”.

•  Mr Freeman said to Mr Holl and Mr Hobson: “You are walking in an unsafe manner, it’s time for you to leave”.

•  Mr Hobson said to Mr Freeman “I’m not going anywhere, you can come over here and make me leave”.10

[18] Having completed the inspection, Mr Holl or Mr Hobson told Mr Freeman and Mr Earl they had to shut the crane down and pack up the crane. Mr Freeman asked them what their safety concerns were, and either Mr Holl or Mr Hobson identified that the slings were frayed and the safety pins were not installed in the outriggers. Mr Freeman arranged for the frayed slings to be packed away and the safety pins inserted into the outriggers.11 Although the identified safety concerns had been rectified, Mr Holl and Mr Hobson continued to demand that the crane be removed from the site. Mr Holl said to Mr Freeman words to the effect “No you need to pack up the crane and remove it from the site. We are not leaving until the crane is gone”.12 Mr Freeman refused, and he requested that Mr Holl and Mr Hobson provide a written notice of their safety concerns. Mr Holl said words to the effect: “No, there’s nothing stating that I need to give you anything in writing. You need to shut it down”.13 Mr Holl also complained to Mr Freeman about the stored materials area, claiming that the crane had to be moved in order to tidy the area up and Mr Freeman told them he would bunt off the area and tidy it up over the weekend.14

[19] At about 1:30 pm on 19 October 2021, Mr Darren Wilton, the Senior Project Manager, arrived on the site and spoke to Mr Holl and Mr Hobson. He told them that access to the crane and the stored materials area would be rectified over the weekend. Mr Holl said to Mr Wilton “We’re not leaving until the crane leaves”. Mr Wilton and Mr Freeman asked Mr Holl and Mr Hobson to leave the site, but they refused. Mr Hobson squatted down and said words to the effect “I’m not going to leave. I’m in a safe place here, I don’t need to leave”.15

[20] At about 2:00 pm, Mr Glenn Wilbow, Manager at Wheeler Cranes and Stephen Smallman Wheeler Cranes’ Safety Manager arrived at the San Clemente Site and after being escorted to crane Wilbow and Mr Smallman had a conversation with Mr Holl and Mr Hobson during which:

•  Mr Holl complained that the crane slings were dirty, that the CraneSafe report was not with the crane and there were no handrails on the truck carrying structural steel to assist the dogman to climb onto the truck.

•  Mr Smallman said those complaints that the crane slings were dirty, and that the CraneSafe report was not with the crane were not issues, and Mr Smallman pointed out the CraneSafe sticker on the crane certifying it had passed inspection.

•  Mr Holl said “The sticker is irrelevant”.16

[21] Thereafter Mr David Little, Director of North Construction had a discussion with Mr Smallman and Mr Wilbow, about packing up the crane, after which he advised Mr Holl and Mr Hobson that the crane was going to be packed up. Mr Holl said to Mr Little “You are packing it up and sending it away?”, which Mr Little confirmed. Mr Holl then said “Well that’s my job done here”. Shortly afterwards Mr Holl asked Mr Little “So just to confirm you are sending the crane home?” After Mr Little confirmed this, Mr Holl said “Well that’s my job done”. Mr Holl also said to Mr Freeman “I’ll wait here until the crane leaves the site”.17 Subsequently, Mr Holl was asked to move his utility, which as earlier noted he had parked partly across the site vehicle access blocking the entry or egress of vehicles, to allow a delivery truck carrying steel to leave the site, which he did, and the truck and crane were able to leave the site.18

[22] As can be discerned from the circumstances described above, Mr Holl contended that the crane had to be removed from site despite there being no genuine safety issues requiring its removal and despite the rectification of safety issues identified and the reasonable proposals to rectify any outstanding issue. When the crane was not removed, Mr Holl refused to leave the site which prevented the crane operating and carrying out building work scheduled to be performed that day. Consequently, Mr Holl’s conduct contravened s 500 of the Act by intentionally hindering or obstructing Wheeler Cranes and North Constructions from performing work using the crane. He admitted so.

[23] Also evident from the described circumstances is that Mr Hobson was present at the time of Mr Holl’s contravening conduct and aligned himself with his conduct and did not dissociate himself from it. Mr Hobson therefore aided and abetted or was knowingly concerned in or party to Mr Holl’s contravention of s 500. He also admitted the contravention.

[24] The circumstances in which Mr Hobson engaged in the contravening conduct on 22 October 2019 were as follows. Port Waratah Coal Services (PWCS) engaged Wheeler Cranes and another provider to provide mobile crane services to the Kooragang Coal Terminal, at Kooragang Island, New South Wales (KCT) for the purpose of carrying out or assisting with alteration, repair or restoration work to a coal reclaiming machine and a coal conveyor.19 In the morning of 22 October 2018 a group of protestors, some dressed in CFMMEU branded clothing, carrying CFMMEU banners and flags assembled outside the KCT gates.20 At about 7:00 am, two Wheeler Cranes’ mobile cranes and a truck arrived at the KCT and parked in Raven Street waiting to be admitted to the KCT. Thereafter discussions with some of the protestors ensued to ascertain whether the protestors intended to blockade entry to KCT. The protesters were blocking the crane and truck from entering the KCT and Police were also called to attend the KCT.21

[25] At about 7:20 am, while the protesters were still blocking the crane and truck from entering the KCT, Mr Holl and Mr Hobson arrived at the KCT in separate vehicles. Mr Hobson went to speak to the protesters, who then remained where they were.22 Mr Holl approached Mr Mark Carlin, PWCS KCT Operations Superintendent and Mr Brett Miller PWCS KCT Operations Supervisor and a discussion to the following effect ensured:

•  Mr Holl said “Last week I told you to change the colours on the cranes and there would not be any issues”.

•  Mr Carlin said “We don’t have to change the companies, the issue is not with Port Waratah”.

•  Mr Holl said “You can change, but you don’t want to listen”.

•  Mr Carlin said “We have independently engaged Wheeler and Borger to provide crane services until the issue between Boom and the union is resolved”.

•  Mr Holl said “It will get ugly today if Wheeler Cranes come on site”.23

[26] Mr Holl did not advise or request the protesters to stand aside and allow the Wheeler Cranes’ cranes and truck to enter the KCT.24 Mr Holl and Mr Hobson joined in with the protesters and they and some of the protesters stood by the stopped crane and truck and spoke to the crane drivers, and about 20 minutes later, one of the drivers approached Mr Miller and Mr Carlin and said “I am very uncomfortable and I don’t like the environment”.25 After receiving an instruction from Mr Smallman, the cranes and truck left the KCT at about 7:40 am to return to the depot.26 Between the departure of the cranes and truck and the arrival of the Police, Mr Holl, Mr Hobson and the protesters remained standing and walking around the vicinity of the KCT Stores Compound Gate (the SC Gate).27

[27] A crane from the other supplier arrived at about 8:25 am at the KCT and its entry was not blocked by the protesters, Mr Holl or Mr Hobson, nor did Mr Holl or Mr Hobson request access to inspect that crane, or make any statement to PWCS’ representatives or the Police that they suspected any health and safety issues with that crane. 28

[28] A Wheeler Cranes’ crane and truck arrived at about 9:55 am, driven by Mr Wilbow and Mr Albert Wheeler, principal and Director of Wheeler Cranes. Police requested the protesters to stand away and the crane and truck entered the KCT and stopped about 50 metres inside the SC Gate. When the vehicles entered, the SC Gate commenced to close, and Mr Holl and Mr Hobson walked through the gate. Mr Holl said, “You can’t close the gate, we have right of entry”. By this time, each of Mr Holl and Mr Hobson reasonably suspected that one or more contraventions of the WHS Act had occurred or were occurring. Mr Holl and Mr Hobson then entered the KCT, whilst showing their right of entry permits.29 After a conversation involving the Police, Mr Holl and Mr Hobson inspected the crane and truck. During the inspection of the truck, Mr Holl climbed up onto the trailer. Mr Smallman asked him to get down off the trailer. Mr Holl said to Mr Smallman “I have a right to do whatever I want and can look at whatever I want”.30

[29] After the inspection, Mr Holl told Mr Carlin there was an untagged shackle and sling holding the crane hook to the cabin, no flashing light on the truck, and unreadable tags on the truck equipment. Mr Smallman told them that the shackle and sling holding the crane hook to the cabin was a restraint during travel and was not lifting gear under load. Both Mr Holl and Mr Hobson said words to the effect “The strap is under load it’s a lifting device”. Mr Holl demanded to see “All the paperwork for the truck and the crane”. When asked by Mr Smallman and Mr Carlin what paperwork they wanted to see, Mr Holl replied “I don’t know. Whatever you usually supply. The inspection won’t be completed until I have all the paperwork” and “All these things need to be produced before the inspection is completed. The crane and truck are going nowhere”. After being supplied with the pre-start log books, Mr Holl claimed they had not been completed. Mr Holl demanded to see the high risk work licences of the crane operators, which Mr Smallman refused to provide on the basis that they were not required to be provided. Mr Sears requested several times that Mr Holl and Mr Hobson provide a notice of entry, to which Mr Holl repeatedly replied that he did not need to supply one. When Mr Wheeler and Mr Wilbow sought to move the crane and truck to another fenced off area, Mr Holl and Mr Hobson took turns in standing in front of the crane and truck preventing them being moved.31 As a consequence of the actions of Mr Holl and Mr Hobson, the Wheeler Cranes’ crane and truck could not proceed to the position allocated for it by PWCS.32

[30] At about 11:45 am, Mr Shaun Sears, PWCS KCT General Manager of Operations, decided to clear the Stores Compound area of all personnel and lock it up and leave the crane and truck where they were. He had a conversation with Mr Holl and Mr Hobson to the following effect:

•  Mr Sears advised Mr Holl and Mr Hobson that the Police and other personnel were leaving and the SC Gate was to be locked, but they could stay if they wanted.

•  Mr Holl consulted with Mr Hobson and then told Mr Sears that they were staying and would stay for as long as it takes, even into the night.

•  Mr Sears said they could call him if they wanted to leave.33

[31] The Stores Compound was cleared of all persons except Mr Holl and Mr Hobson and the gates were locked. Mr Carlin arranged for a security guard to stand outside the gates, and for CCTV to be installed to provide surveillance of the crane and truck. At about 4:00 pm, Mr Holl and Mr Hobson asked to be let out of the Stores Compound and the security guard let them out. At a meeting between Mr Wheeler, Mr Wilbow, Mr Sears, and others that afternoon, Mr Sears advised Mr Wheeler and Mr Wilbow that they would engage the other provider to provide crane services to PWCS for the immediate future, but that PWCS would commit to pay Wheeler Cranes for the hire of the cranes for the day. At about 5:20 pm, Mr Wheeler and Mr Wilbow drove the Wheeler Cranes crane’ and truck out of the KCT and back to the Depot.34

[32] By reason of the conduct described above Mr Holl admitted that he took action against PWCS with the intent to coerce PWCS not to engage Wheeler Cranes in contravention of s 355(b) of the Act. And that when exercising, or seeking to exercise, rights in accordance with Part 3-4 of the Act, namely inquiring into a suspected contravention of the WHS Act that affected relevant workers at the KCT under s 117 of the WHS Act, he intentionally hindered or obstructed other persons in contravention of s 500 of the Act.

[33] Mr Hobson admitted that he was directly or indirectly knowingly concerned in, or party to, Mr Holl’s contravention of s 500 of the Act, by being present when, aligning himself with and not disassociating himself from the conduct of Mr Holl.

[34] The Court observed that although Mr Hobson was not the principal protagonist, he lent support to Mr Holl’s conduct and that his liability was accessorial, and that such involvement is treated the same way as a direct contravention.35 The Court accepted that Mr Hobson engaged in conduct that:

•  involved non-compliance with s 119 of the WHS Act by not giving notice of entry and the suspected contravention to the occupiers and Wheeler Cranes, as soon as was 37 reasonably practicable after entering the workplace, in accordance with cl 28 of the Work Health and Safety Regulation 2017 (NSW) and setting out the particulars of the suspected contravention. The failure to give proper notice gives rise to an inference that he (and Mr Holl) had no reasonable basis for suspecting a contravention of the WHS Act before entry;

•  to the extent that particulars of suspected contraventions were provided, he (and Mr Holl) did not provide such particulars in writing as soon as practicable after entry but did so only after inquiries had taken place following entry which appeared to match matters identified during inquires and were not contraventions reasonably suspected by Mr Holl (and Mr Hobson) before entry;

•  caused significant disturbances whilst on site including stopping workers performing work on the cranes; and

•  demanded, without any power to do so, that Wheelers Cranes’ cranes be removed from the site irrespective of the nature of the identified safety issue or that the issue had been resolved.36

[35] Mr Hobson’s contention that his contravening conduct should be characterised as low range was rejected, and his conduct was assessed by the Court as mid-range.37

[36] The CFMMEU accepts that the mid-range severity of the contravening conduct militates against a suspension or revocation being harsh or unreasonable but nevertheless contends that suspension or revocation of Mr Hobson’s entry permit would be harsh or unreasonable in the circumstances taking into account the following matters:

•  Mr Hobson accepted of the need for remedial training and the undertaking of that training which has provided him with insight into his contravening conduct, a sound knowledge of his rights and obligations as a permit holder;

•  Mr Hobson’s commitment not to further contravene;

•  The character evidence opining that the contravening conduct in which Mr Hobson engaged was aberrant and the expression by those providing character evidence of a confidence, based on their experience with Mr Hobson, that he will comply with his obligations as permit holders;

•  The passage of time since the Mr Hobson engaged in the contravening conduct and the absence of any further contravening conduct;

•  The impact a suspension or revocation of Mr Hobson’s entry permit will have on the ability of the CFMMEU to service the needs of its members in the areas for which Mr Hobson, as an organiser, has responsibility – organisers are reliant on entry permits to access worksites, including in relation to health and safety issues.

[37] Mr Hobson undertook a course of training provided by Mr Brian Lacy AO on 19 January 2022.38 The training was aimed at imparting to Mr Hobson requisite knowledge to enable him to comply with these obligations as a permit holder and included specific instruction in detail in relation to the contraventions in which Mr Hobson was found to have engaged in The Wheeler Cranes case.39 Mr Lacy reported, inter alia, that Mr Hobson was made to understand that he must disassociate himself from the actions of others involved in contravening a penalty provision under the Act and that he demonstrated an understanding of the concepts of hindering, obstructing and acting in an improper manner, for the purposes of s 500 of the Act, and that he undertook to engage in such action in the future.40

[38] The Commissioner acknowledges and I agree, the fact that Mr Hobson has undertaken this training is a factor that stands in his favour. However, the circumstances in which the training was undertaken is relevant to assessing the weight that should attach. First, Mr Hobson did not give evidence (either in his statement or during his oral evidence) that he accepted the need for remedial training or that following the contraventions or the admissions he made that he sought out remedial training. His evidence was simply that he undertook the training on 19 January 2022, that he got a lot out of it and that he now has a better understanding of his rights and obligations and why his conduct in The Wheeler Cranes case contravened the Act and the BCIIP Act.41

[39] Secondly, as the Commissioner correctly points out, the training was not undertaken once Mr Hobson made admissions about his contravening conduct in The Wheeler Cranes case or in the immediate aftermath of the judgment. In The Wheeler Cranes case the Court noted that the CFMMEU had not adduced any evidence of having taken any corrective action such as training, instruction or direction such as to ensure compliance with the law, or at least limit or minimise the prospect of future contraventions.42 Chronologically, the proceeding under s 510, was initiated by the Commission in early December 2021 and a direction hearing was listed for 16 December 2021. By consent, that hearing was vacated and directions by consent were made on 14 December 2021 with a hearing fixed for 25 March 2022. Mr Lacy was engaged to provide the training on 20 December 2021.43 Earlier engagement with remedial training would more likely support a contention of an acceptance of the need for remedial training.

[40] Nonetheless remedial training has been undertaken. Mr Lacy’s statement sets out that he considers, based on his interaction with Mr Hobson during the training, that Mr Hobson now demonstrated the ability and willingness to comply with the law in the future and that he expressed a commitment to doing so.44 And Mr Hobson gave evidence substantially to the same effect.45

[41] Mr Hobson has given evidence that he is committed to doing his absolute best to comply with his obligations as a permit holder.46 He was not cross-examined about this evidence. He also told Mr Lacy that he was committed to doing so.47 He said that with the benefit of the training he has undertaken he now better understands why his conduct in The Wheeler Cranes case contravened the Act and the BCIIP Act.48 Moreover, in his evidence Mr Hobson has expressed regret for engaging in the contravening conduct and using his entry rights in an inappropriate way not permitted by law.49 He was not cross-examined about this evidence.

[42] An absence of contrition is not an ‘aggravating’ factor in considering matters under s 510 but it is a relevant factor. Deputy President Colman observed in Paul Taylor50 that “[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 I agree. An expression of remorse 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 expression of remorse for contravening conduct leading to a triggering event would be part of the circumstances in which the consideration is undertaken. Here there is an expression of regret or remorse by Mr Hobson, underpinned by targeted training and a commitment not to contravene again. But, the expression of remorse or regret came very late in the piece. In The Wheeler Cranes Case there was no evidence of any contrition or regret offered.52 There is no expression of contrition or regret by Mr Hobson recorded in Mr Lacy’s statement despite the role that any remorse or regret shown for the contravening conduct plays in the assessment of penalties by a court having been discussed.53 No statement from Mr Hobson was filed as part of the CFMMEU’s case in chief. The expression of regret by Mr Hobson was not proffered until the CFMMEU had filed its reply material. It is evident that Mr Hobson’s statement was filed in response to criticisms in the Commissioner’s written submissions about the absence of any evidence from Mr Hobson. Whilst a statement of regret if genuinely made can be powerful, in the instant case, I am not persuaded to give the expression of regret made by Mr Hobson any significant weight because it was not given much earlier in time. Evidence by way of statements of regret or remorse would speak much more powerfully if given earlier to a court considering the imposition of penalties or at the least given to the Commission at the outset of its consideration of the exercise of power under s 510 and not by way of reply responsive to a legitimate criticism about the absence of evidence. It seems to me that a person truly regretful for conduct would likely say so much earlier that the case in point.

[43] The nature of the circumstance in s 510(1)(d) which triggers the power to suspend or revoke an entry permit results in the passage of some time between the contravening conduct and the imposition of a penalty. Allegations of contravening conduct need to be investigated and the process of litigation means that some time will invariably pass before a penalty is imposed for proven or admitted contravening conduct. Thus, the passage of time since the contravening conduct and the absence of any further contravening conduct are to be assessed in this context. The contravening conduct occurred in October 2018 and penalties for the contravening conduct were imposed over three years later in November 2021. It is accepted that Mr Hobson has not engaged in contravening conduct since October 2018. But alone, that fact does not weigh significantly. The very nature of action taken under s 510 is that a singular triggering event involving a permit holder must, subject to the exceptions, result in a suspension or revocation of the entry permit. More significantly, Mr Hobson has undertaken directed training and is committed to complying with his obligations as a permit holder. The absence of further contravening conduct viewed in the context of the training undertaken and his commitment given in evidence weighs in his favour.

[44] The CFMMEU contended that Court proceedings in which Mr Hobson was involved had a salutary effect on him and he is now well equipped to ensure he complies with his obligations into the future. Against this contention, the Commissioner points to the evidence given by Mr Hobson that the CFMMEU paid the penalties the Court imposed on him. It should be noted that no personal payment order was sought by the Commissioner in the proceeding. I accept given the corrective training received, Mr Hobson is better equipped to ensure he complies with his obligations. But I do not accept that the The Wheeler Cranes Case has had a salutary effect on him. That he did not pay his own penalty is one matter that tends against the submission. Another is that Mr Hobson gave no evidence that The Wheeler Cranes Case had a salutary effect on him. On his own evidence, that which appears to have had a salutary effect on him is not The Wheeler Cranes Case but rather the training that he undertook which caused him “now to have a better understanding of why [his] conduct in the Wheeler Cranes Case contravened”54 the Act and the BCIIP Act. A third matter is that any salutary effect the proceedings might have had on Mr Hobson might reasonably have been expected to be accompanied by statement of remorse or regret much earlier than when it was given. A fourth is that there is no evidence that any action was taken against Mr Hobson by the CFMMEU by way of discipline or counselling in relation to the conduct after admissions were made or since. And as I have already noted, the corrective training, though worthwhile, was given only after these proceedings commenced. The need for corrective training was, or ought to have been, apparent at a point much earlier in time.

[45] Evidence was given by the managing director of the BKH Group55, a senior site manager engaged in the construction industry56 and the General manager of The Steelfixing Group57, about their dealings and interactions with Mr Hobson in his capacity as a CFMMEU organiser, their awareness of the admitted contraventions in the The Wheeler Cranes Case, and expressing the opinion that based on their dealings with and observations, Mr Hobson was an appropriate person to hold or continue to hold an entry permit. I take this evidence into account as weighing in Mr Hobson’s favour but not significantly. Although the views given are expressed in the knowledge of the admitted contraventions, the statements do not disclose any knowledge of the detail of the conduct in which Mr Hobson engaged in The Wheeler Cranes Case. Moreover, the senior site manager who gave evidence said that he had known Mr Hobson for the last 3 to 4 years but gave only two examples of interactions with Mr Hobson during that period which are of an unspecified duration and content. The managing director of the BKH Group, gave evidence that Mr Hobson had once been employed by the Group. Although his evidence suggests that he has “seen” Mr Hobson on-site in his capacity as a union organiser there is no detail about the frequency with which Mr Hobson attended site, the dates on which he attended, over what period he attended, or what issues were dealt with by Mr Hobson whilst on site.

[46] Apart from the contention that there will be a negative impact in the event of a suspension or revocation of Mr Hobson’s entry permit on the ability of the CFMMEU to service the needs of its members in the areas for which Mr Hobson, as an organiser, has responsibility, there is no evidence on which such a conclusion could be reached. Mr Hobson gave evidence to the effect that if he were to retain his entry permit, he would be able to continue to do his job as a union organiser, in particular to work to make construction sites safer and more comfortable for workers on the site and everyone involved.58 I infer from this evidence that he suggests the opposite will be true if his entry permit is suspended or revoked. But there is no probative evidence to support what is in essence a contention without substantiation. Doubtless there might be some self-inflicted inconvenience to Mr Hobson and the CFMMEU if Mr Hobson’s permit were to be suspended or revoked. But as I have previously observed 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 construction sites usually serviced Mr Hobson. There is nothing to suggest that this could not occur. I therefore do not consider that this matter weighs in favour of a conclusion that suspension or revocation would be harsh or unreasonable.

[47] The CFMMEU contented that having regard to the matters it has identified it would be unreasonable, in the sense of being inequitable, unfair or unjustifiable, to suspend or revoke Mr Hobson’s permit. I do not agree. An assessment of whether action taken under s 510 would be harsh or unreasonable involves a balancing exercise and a consideration of the protective and corrective object of s 510, the object of the Act in s 3, the object of Pt 3-4 in s 480 and all the relevant circumstances. For the reasons set out above, not all of the circumstances identified by the CFMMEU weigh in favour, or significantly in favour of a conclusion that suspension or revocation would be harsh or unreasonable. The contravening conduct was not a singular act, it was in the mid-range of severity, it followed conduct in contravention of the BCIIP Act also directed to impeding the business of Wheeler Cranes and which involved entry without lawful authority, there was no expression of remorse or regret given to the Court, and that which was given to the Commission came very late. That corrective training has been undertaken is to the credit of Mr Hobson, but as I have also noted, this was undertaken only after the Commission initiated these proceedings. I consider there remains a protective and corrective purpose to be served having regard to the balancing of rights noted in s 480 of the Act. There are consequences under s 510(1) of the Act for engaging in conduct which results in a triggering event and the matters to which the CFMMEU have pointed do not persuade me in the circumstances of this case that acting under that section will be harsh or unreasonable.

[48] Therefore, in the circumstances discussed above, I am not satisfied it would be harsh or unreasonable to suspend Mr Hobson’s permit.

[49] The Commissioner contended that suspension rather than revocation was appropriate and that a ban period of three months should be imposed. The CFMMEU agreed that if I were not satisfied that suspension or revocation would be harsh or unreasonable this was an appropriate course. I also agree.

[50] I therefore propose to suspend Mr Hobson’s entry permit for a period of three months from the date of this decision and to fix a ban period under ss 510(5) and (6) of the Act beginning on the date of this decision and ending at the end of a period of three months. Mr Hobson 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 Hobson on application by him or the CFMMEU.

Orders

[51] I order:

1. Pursuant to s 510(1) the entry permit held by Justin Brendon Lee Hobson is suspended for a period of 3 months commencing on the 16 May 2022; and

2. Pursuant to s 510(5) I ban the issue of any further entry permit to Justin Brendon Lee Hobson for a period of 3 months commencing on the 16 May 2022.

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DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR741563>

Appearances:

Mr S Crawshaw SC and Mr P Boncardo of Counsel for the CFMMEU

Mr M Seck of Counsel for the Commissioner

Hearing details:

2022

Melbourne (via video)

24 March

1 [2021] FCA 1480

2 [2015] FCAFC 56, 230 FCR 15

3 Ibid at [13]-[16]

4 In the matter of the Entry Permit of Blake Patrick Hynes [2020] FWC 97 at [16]; Mr Muhammed Kalem [2017] FWC 5086 at [19]; Mr Nigel Davies [2019] FWC 2022 at [21]

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

6 Parker and others [2011] FWA 2577 at [26]-[28], [33] and [34]

7 Australian Building and Construction Commissioner v Holl (The Wheeler Cranes Case) [2021] FCA 1480 at [54]

8 Ibid at [57]

9 Ibid at [58]

10 Ibid at [60]

11 Ibid at [61]

12 Ibid at [62]

13 Ibid at [63]

14 Ibid at [64]

15 Ibid at [65]

16 Ibid at [66]

17 Ibid at [67]-[68]

18 Ibid at [69]-[70]

19 Ibid at [74]

20 Ibid at [75]

21 Ibid at [76]-[78]

22 Ibid at [79]

23 Ibid

24 Ibid at [80]

25 Ibid at [81]

26 Ibid at [82]

27 Ibid at [83]

 28   Ibid at [85]

29 Ibid at [86]-[87]

30 Ibid at [88]

31 Ibid at [89]

32 Ibid at [90]

33 Ibid at [91]

34 Ibid at [92]-[94]

35 Ibid at [138]

36 Ibid at [141]

37 Ibid at [183], [185

38 Exhibit 7 at [16]; exhibit 8 at [9]

39 ibid at [2]

40 ibid at [27] and [29]

41 Exhibit 8 at [9]

42 Australian Building and Construction Commissioner v Holl (The Wheeler Cranes Case) [2021] FCA 1480 at [177], [193]

43 Exhibit 7 at [2]

44 Ibid at [34]

45 Exhibit 8 at [9] and [12]

46 Ibid at [13]

47 Exhibit 7 at [34]

48 Exhibit 8 at [9]

49 Ibid at [12]

50 [2021] FWC 431

51 Ibid at [31]

52 Australian Building and Construction Commissioner v Holl (The Wheeler Cranes Case) [2021] FCA 1480 at [177], [193]

53 Exhibit 7 at [28]

54 Exhibit 8 at [9]

55 Exhibit 5

56 Exhibit 6

57 Exhibit 4

58 Exhibit 8 at [11]