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

In the matter of the Entry Permit of Andrew Robert Blakeley
(RE2022/61)

Revocation/suspension of entry permit of Andrew Robert Blakeley

[1] Andrew Robert Blakeley is an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and a permit holder under the Fair Work Act 2009 (Act). On 3 February 2022 Judge Egan of the Federal Circuit and Family Court of Australia (Division 2) delivered judgment in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union¹ in which the Court declared that Mr Blakeley contravened s 500 of the Act at a building site on 5 November 2020 by acting in an improper manner in that he:

a. entered the Site without giving 24 hours written notice in breach of s 487 of the Act;

b. entered and remained on the Site in circumstances where he had no lawful basis to do so;

c. failed to comply with the Site’s occupational health and safety requirements that prohibited unauthorised access and required visitors to report to the Site Office;

d. attended a meeting which was not authorised to be held on Site;

e. entered and remained on the Site in direct contradiction of the occupier's request to conduct the meeting off-site; and

f. facilitated the entry of 10 to 12 people onto the Site in circumstances where he knew that those people were not authorised to be on the Site.

[2] The Court ordered that Mr Blakeley pay a pecuniary penalty in the amount of $7,992.00 in respect of the contravention. Consequently, the Commission’s jurisdiction pursuant to s 510(1)(d) of the Act is engaged. The proceeding under s 510(1) of the Act 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 9 February 2022 that he intervenes in the proceeding pursuant to s 110 of the BCIIP Act.

[3] By consent, the matter is determined on the papers without a hearing.

[4] The Commission must revoke or suspend the entry permit held by Mr Blakeley unless action under s 510(1) of the Act has previously been taken and the circumstances which now enliven the jurisdiction were taken into account. This does not arise here. The Commission is not required to take action under s 510(1) if satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances. Sections 500 and 510 of the Act are part of a right of entry scheme established by Part 3-4. The object of Part 3–4 is to establish a framework for officials of organisations to enter premises that balances the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of the Act, fair work instruments and State or Territory OHS laws; the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and the right of occupiers of premises and employers to go about their business without undue inconvenience.

[5] As I have observed previously,² 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.³ 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.⁴ 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.

[6] Matters relevant to 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.⁵

[7] The circumstances of the contravening conduct in which Mr Blakeley engaged and to which he admitted, were as follows:

•  The contravening conduct took place on 5 November 2020 at a construction project of a new performing arts complex located on the corner of Russell Street and Grey Street South Brisbane (the project site) occupied by Lendlease Building Pty Ltd (Lendlease);

•  The day before, Lendlease had authorised its employees on the Project to attend a meeting of no longer than 60 minutes in duration, if held off-site, to discuss a proposed enterprise bargaining agreement, to be held off-site by the CFMMEU on 5 November 2020. Mr Blakeley knew that Lendlease required that the meeting would take place off-site.

•  At about 6:10 am on 5 November 2020, a group of approximately 10 to 12 people approached gate 2 of the project site from the Brisbane River end of Russell Street. None of the group were Lendlease employees and none had been inducted nor authorised to enter the Project site.

•  Lendlease had certain occupational health and safety requirements that applied to the Project site which included requirements that all visitors must report to the Project site office and unauthorised personnel were not permitted to access the Project site.

•  As the group approached the gate, Mr Peter Bransdon, who was at the time an employee of Lendlease and a CFMMEU delegate for the Project site walked from the lunchroom located on the Project Site, exited the gate and met with the group and Mr Blakeley approached the gate and had a conversation with Mr Bransdon and the group.

•  Thereafter Mr Blakeley and Mr Bransdon had a conversation with Mr Andrew Clark and Mr Karl Andriske, who were employed by Lendlease as Foremen for the Project site. At the time of the conversation Mr Blakeley and Mr Bransdon were standing in front of the gate on the outside of the Project site with the group standing behind them, and Mr Clark and Mr Andriske were standing directly in or just to the inside of the gate. During the conversation:

•  Mr Clark asked who the people in the group were, to which Mr Bransdon replied with words to the effect that the group was “there for the meeting”;

•  Mr Clark said words to the effect that the meeting could be conducted off-site but that the Group were not allowed to come on the Project site;

•  Mr Bransdon responded by saying words to the effect that the group was “getting inducted for Anora.” Mr Bransdon also said “we are fucking coming on”;

•  Mr Clark responded with words to the effect that Lendlease had organised an off-site meeting room for the meeting, to which Mr Blakeley responded with words to the effect, “we are not coming to an off-site meeting room, we are coming on site, we’re fucking coming on”;

•  Mr Clark responded with words to the effect, “we have organised a meeting room next door, if you come on site it will be industrial action. Please use the room that has been organised”; and

•  Mr Bransdon said words to the effect, “mate, we are fucking coming on.”

•  Following the conversation Mr Blakeley stepped forward towards Mr Clark who took a step backward to create distance between he and Mr Blakeley and as Mr Clark took a step backward, Mr Blakeley stepped into the gate opening and turned, so his back was now to Mr Clark, put his arms out, so they were straight out and at about shoulder height which formed a barrier and allowed the others within the group to pass through the gate.

•  At the same time, Mr Bransdon also stepped toward Mr Clark and Mr Andriske. As a result of the action of Mr Bransdon and Mr Blakeley, Mr Andriske also stepped backwards away from Mr Bransdon and Mr Blakeley to create space between he and Mr Blakeley and Mr Bransdon causing Mr Andriske to move back from the gate opening.

•  With the gate opening now clear, either Mr Bransdon or Mr Blakeley said to the group words to the effect, “c’mon boys, come through” and signalled with their hands for the group to walk through the gate.

•  Mr Bransdon, Mr Blakeley and the group walked through the gate, onto the Project site and directly to the lunchroom which they then entered.

•  Mr Blakeley did not report to the Project site office on 5 November 2020.. A few minutes later, Mr Bransdon and Mr Blakeley exited the lunchroom and returned to the gate and exited the Project site at which time, Mr Michael Ravbar, the Secretary of the CFMMEU Construction and General Division – Queensland and Northern Territory Divisional Branch, arrived. Mr Blakeley, Mr Ravbar and Mr Bransdon approached the gate together. Mr Clark stated to Mr Blakeley, Mr Ravbar and Mr Bransdon that they were not allowed on the Project site as they had not been inducted and that if they wanted to have the meeting they could go to the off-site meeting room. Mr Bransdon responded to this with words to the effect, “we’re coming on.”

•  Following the above conversation, Mr Blakeley, Mr Bransdon and Mr Ravbar entered the Project site and walked directly to, and then entered the lunchroom.

•  Mr Blakeley and Mr Ravbar remained on the Project site, held the meeting in the lunchroom attended by Lendlease employees and the group.

•  At approximately 7:45am, Mr Blakeley, Mr Ravbar and Mr Bransdon exited the lunchroom, approached the gate and exited the Project site.

•  When entering the Project site on 5 November 2020, Mr Blakeley was seeking to exercise a right in accordance with Part 3-4 of the Act.

•  At no stage did Mr Blakeley provide an entry notice to Lendlease in respect of the entry in accordance with s 487 of the Act.

•  Mr Blakeley knew that:

•  Lendlease required the meeting to be conducted off-site;

•  he did not have the permission of Lendlease to enter the Project site, remain on the Project site or hold discussions with workers on the Project site;

•  the occupational health and safety requirements pertaining to the Project site prohibited unauthorised access and required visitors to report to the Project site office;

•  the group were not inducted or authorised to be on the Project site; and

•  the group did not have permission of Lendlease to enter the Project site.

•  Mr Blakeley acted in an improper manner within the meaning of and for the purposes of s 500 of the Act by:

•  entering the Project site without giving 24 hours written notice in breach of s 487 of the Act;

•  entering and remaining on the Project site in circumstances where he had no lawful basis to do so;

•  failing to comply with the Project site’s occupational health and safety requirements which prohibited unauthorised access and required visitors to report to the Project site office;

•  entering and remaining on the Project site in direct contradiction of Lendlease’s request to conduct the meeting off-site;

•  attended the meeting which was not authorised to be held on the Project site;

•  facilitating the entry of the group onto the Project site in circumstances where he knew that they were not authorised to be on the Project site;

[8] In assessing the penalty to be imposed on Mr Blakeley, the Court noted that:

•  the unauthorised actions of Mr Blakeley were designed to have the effect of showing that he would not kowtow to the wishes of Lendlease, irrespective of the reasonableness of the arrangements for the conduct of the meeting which had been made;

•  Mr Blakeley disregarded requests for him to leave the Project site and conduct a meeting across the road where Lendlease had arranged for the meeting to be held;

•  Mr Blakeley has not previously been found to have acted in contravention of provisions of the Act;

•  Mr Blakeley’s actions were brazen and pointless and the conduct in which he engaged was a brazen disregard of binding provisions of the Act;

•  Mr Blakeley was not a senior member of the CFMMEU, and further that it might be seen that he was acting under the instruction or influence of Mr Ravbar as the senior CFMMEU member present.

[9] The Court considered the appropriate pecuniary penalty to be imposed upon Mr Blakeley as equating to 60% of the maximum penalty – in the amount of $7,992.00. The CFMMEU and Mr Blakeley have filed an appeal, relevantly against the quantum of the penalty imposed on Mr Blakeley arguing that the penalty imposed was manifestly excessive, and further or in the alternative that proper regard to the objective circumstances of the contravention place the contravention in the mid-range and well below that imposed by the Court.

[10] The CFMMEU contends that a suspension or revocation of Mr Blakeley’s entry permit would be harsh or unreasonable for the following reasons:

•  The contravention was of a low objective seriousness. In this regard the CFMMEU contends that the Court drastically overstated the severity of the contravening conduct when regard is had to the following:

•  Lendlease was informed of the intention to hold the meeting sometime in the previous month and this was not a case where union representatives arrived unannounced and without explanation of their presence;

•  This was also not a case where the union representatives provided a false explanation of their presence;

•  o There was no allegation that the union representatives had any ulterior motive, damaging to Lendlease, in not accepting the use of the off-site room;

•  The purpose of the meeting was approved, the workers were permitted to attend albeit on the condition that it be held off-site and run for no more than 60 minutes;

•  Although the workers did not use the hired room, the lunchroom must have presented no risk to health and safety;

•  Although the union representatives did not accept the offer of the hired room, having inspected it the day before, there was no allegation of aggression, intimidation, or even strong language. Nor was there any complaint of disruption of the work, nor that the workers moved around the site without escort or otherwise; and

•  The conduct on the day did not cause Lendlease any financial or other harm or loss. A meeting of workers during enterprise agreement negotiations with Lendlease was an appropriate and necessary feature of the regulatory regime.

•  Mr Blakeley has completed further training on 10 March 2022 since the contravening conduct and the CFMMEU has provided a certificate confirming completion of the course.

•  No protective and corrective purpose will, in the circumstances, be served by any suspension or revocation of the permit.

[11] I do not accept the CFMMEU’s invitation to reassess the seriousness of the contravening conduct in which Mr Blakeley engaged in light of the grounds advanced in the appeal. In the exercise of power under s 510(1) and the discretion in s 510(2) I consider the findings of the Court as to the seriousness of the contravening conduct which are reflected in the pecuniary penalty imposed, must be respected unless disturbed on appeal. That is not the case here and it is not appropriate for the Commission to reassess for itself the seriousness of the contravening conduct in light of matters to be raised in an appeal in relation to which the Court has not given judgment.

[12] The holder of an entry permit is able to exercise entry rights which significantly erode the common law right of an occupier to exclude those whom it does not wish to enter its premises and occupiers of premises and employers have the right to go about their business without undue inconvenience.⁶

[13] As the Court found, Mr Blakeley’s actions were brazen and pointless and the conduct in which he engaged was a brazen disregard of binding provisions of the Act.

[14] Mr Blakeley’s contravening conduct was serious as is reflected in both the findings of the Court and the level of pecuniary penalty imposed. I therefore do not accept that his contravening conduct was of a low objective seriousness. The seriousness of the conduct found by the Court does not suggest that suspension of the entry permit would be harsh or unreasonable.

[15] As to the training undertaken on 10 March 2022, apart from the certificate of completion attached to the submissions filed by the CFMMEU, there is no evidence about the reason for undertaking the training, or whether Mr Blakeley recognised the need for corrective or further training, or what Mr Blakeley has learned by undertaking the training, particularly by reference to the nature of his contravening conduct, or how further training might now affect the way in which he conducts himself as a permit holder. Mr Blakeley admitted engaging in the contravening conduct in an amended defence filed in the Court on 4 January 2022. No corrective training was undertaken contemporaneously with the admission. The training was undertaken only after these proceedings were commenced at the Commission’s initiative. On the face of the certificate of completion, Mr Blakeley appears to have undertaken the generic training provided to prospective permit holders. It does not appear that the training was directed to the contravening conduct or to correcting the manner in which Mr Blakeley might in the future exercise entry rights are permit holder. Without more, the training undertaken does not therefore weigh in favour of the conclusion that suspension or revocation of the entry permit would be harsh and unreasonable.

[16] There is no evidence about any adverse impact that suspension or revocation would have on Mr Blakeley or on the CFMMEU or its members. There is no evidence of any remorse or regret on the part of Mr Blakeley for engaging in the contravening conduct nor is there any evidence of any action taken by the CFMMEU to discipline or counsel Mr Blakeley in relation to his contravening conduct. No character evidence was offered.

[17] 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. 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. None of the matters raised by the CFMMEU persuade me that taking action under s 510(1) would be harsh or unreasonable and I consider that an appropriate balancing of competing rights is achieved in the circumstances by taking action. I am therefore not persuaded that taking action in relation to Mr Blakeley’s entry permit would be harsh or unreasonable in the circumstances.

[18] The CFMMEU contended that if the Commission determines that it would not be unreasonable or harsh to suspend or revoke Mr Blakeley’s permit, it would be appropriate for a suspension for the minimum period prescribed by s 510(4) of the Act to be imposed. While cavilling with the suggestion that the Act sets out a minimum period of suspension or revocation, the Commissioner agreed that a suspension of a period of 3 months would be appropriate in all the circumstances. I also agree.

[19] I therefore propose to suspend Mr Blakeley’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. I remind Mr Blakeley 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 Blakeley on application by him or the CFMMEU.

Order

[20] I order:

1. Pursuant to s 510(1) the entry permit held by Andrew Robert Blakeley is suspended for a period of 3 months commencing on 8 June 2022; and

2. Pursuant to s 510(5) I ban the issue of any further entry permit to Andrew Robert Blakeley for a period of 3 months commencing on the 8 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR742318>

1 [2022] FedCFam2CG 40

2 See for example In the matter of the Entry Permit of Mr Justin Brendon Lee Hobson [2022] FWC 1146

3 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]

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

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

6 Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; (2015) 230 FCR 15 at [14]-[15]