DECISION

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
(RE2022/224)

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) whose entry permit issued under s 512 of the Fair Work Act 2009 (Act) was suspended by me under s 510(1) on 8 June 2022¹ for a period of three months following the imposition of a pecuniary penalty in the amount of $7,992.00 on Mr Blakeley by Judge Egan of the Federal Circuit and Family Court of Australia on 3 February 2022. Mr Blakeley was found by the Court to have contravened s 500 of the Act at a building site on 5 November 2020 by acting in an improper manner.² Pursuant to s 510(5) I also banned the issue of any further entry permit to Mr Blakeley for a period of 3 months commencing on the 8 June 2022.³

[2] The ban period will expire at the end of 7 September 2022, and the suspension of the permit will have no practical effect on and after 9 July 2022 because Mr Blakeley’s permit expires on that day, but the ban period will continue until its expiry. As he was required to do under s 517(1), Mr Blakeley returned his entry permit to the Commission. As things stand presently, he will be able to apply for a new permit once the currently suspended permit expires but the Commission will not be able to issue a new permit until the ban period has ended.

[3] A little over a month after the imposition of the earlier mentioned penalty by the Court, on 11 March 2022 a pecuniary penalty in the sum of $7,000.00 was imposed on Mr Blakeley by order of Judge Vasta of the Federal Circuit and Family Court of Australia in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union⁴ by reason of Mr Blakeley’s contravention of s 500 of the Act on 30 April 2020. The contravening conduct occurred while Mr Blakeley was exercising rights in accordance with Part 3-4 of the Act at the Marine Parade Apartments Project located at Marine Parade in Labrador (Project site) and involved him entering exclusion zones at the Project site without authorisation and standing behind concrete trucks, blocking the delivery of concrete to concrete pumps, thereby intentionally hindering and obstructing persons at the Project site and acting in an improper manner.

[4] The imposition by the Court of the pecuniary penalty on Mr Blakeley for contravening s 500 of the Act in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union 5, results in the Commission’s jurisdiction pursuant to s 510(1)(d) of the Act being enlivened. 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 25 March 2022 that he intervenes in the proceeding pursuant to s 110 of the BCIIP Act.

[5] The CFMMEU and the Commissioner have filed written submission and by consent, the matter is determined on the papers without a hearing. The manner in which the Commission exercises its power and the matters that may be relevant to the exercise of the powers and relevant discretions under s 510 of the Act are not seriously in contest and need not be repeated here. The circumstances of the contravening conduct in which Mr Blakeley engaged are set out below:

•  On 30 April 2020, Mr Blakeley and another CFMMEU official Luke Gibson who at the time was a permit holder, entered the Project site exercising rights under the Work Health and Safety Act 2011 (Qld) (WHS Act). Messrs Blakeley and Gibson produced their right of entry permit issued under the Act, their entry permit issued under the WHS Act and a notice specifying that they were entering to enquire into a suspected contravention of the WHS Act.

•  Rawcorp Pty Ltd is a construction company and was at the relevant time undertaking construction work at the Project site. It had engaged two subcontractors – Classic Concrete Pumping and Dallem Concrete Constructions in connection with a planned concrete pour at the Project site on 30 April 2020. Rawcorp also engaged Risk Essentials Pty Ltd to provide health and safety services relating to the Project site and Ms Jennifer Petterson was the consultant on the Project site on 30 April 2020.

•  Because of overhead power lines at the Project site, a static line had been set up to feed concrete from street level to the first floor.

•  A Work Health and Safety Queensland inspector was on the Project site when Messrs Blakeley and Gibson arrived.

•  There were exclusion zones at the Project site which included the Concrete Pump Zone.

•  Messrs Blakeley and Gibson spoke with Ms Pettersen about the static line. During the conversation Mr Gibson was loud and aggressive and he said words to the effect that “Rawcorp is a fucking disgrace”, “Rawcorp does not care for its workers” and “Rawcorp’s director is a fucking disgrace”.

•  Messrs Blakeley and Gibson were not authorised to enter the exclusion zones but did so at about 10:00am on 30 April 2022. Mr Gibson stood in a position between the concrete pump and the concrete truck at the northern pump while Mr Blakeley was also standing between the concrete trunk and the concrete pump at the southern pump. Both were physically blocking the trucks from reversing back to the concrete pumps which delayed the delivery of concrete to the Project site and had the practical effect of not allowing concrete to be delivered to the concrete pumps and, ultimately, to the first floor of the Project site where it would be poured and finished.

•  While standing behind the concrete trucks, Mr Gibson said words to the effect of “I’m not letting you guys start pouring anymore concrete” and “you guys won’t be fucking doing any more pouring today”. As a consequence, an employee of Rawcorp contacted the Queensland Police Service.

•  At times Messrs Blakeley and Gibson acted together blocking the concrete trucks and, at other times, they would separate and position themselves so that one was blocking the trucks at the northern end pump and the other at the southern end pump.

•  A Rawcorp employee spoke to Mr Gibson and made several requests for him to remove himself from behind the trucks. At one stage Mr Gibson was asked: “Luke, can I just ask you to move so we can keep going with what we are doing? We can have another conversation later. Just move away.” Mr Gibson responded with “I am on a public road. Ring the cops then.”

•  While Mr Gibson was standing behind the concrete trucks, he was goading the truck drivers with words to the effect of “Come on, fucking hit me. I want you to hit me” and “keep on coming back”.

•  The workers for Dallem also asked Mr Gibson to move from behind the trucks and Mr Gibson replied with words to the effect of, “Hit me, Fucking hit me. Come on, fucking hit me, you weak cunts”.

•  When the police arrived – about 45 minutes after Messrs Blakeley and Gibson first stood behind the trucks – Messrs Blakeley and Gibson left the Project site before the police could speak with them.

•  The concrete pour was delayed by 45 minutes, but there were no serious consequences which might have occurred if the pour had been delayed longer.⁶

[6] In determining the appropriate penalty to be imposed the Court observed that:

•  In looking at the flight of Messrs Blakeley and Gibson upon police arrival, it may be inferred that both knew very well the illegality of what it was they were doing which is why they left and that this was clear evidence of a consciousness of guilt;

•  Mr Blakeley had cause to enter the Project site and to exercise rights on entry, but it was quite ironic that he would then blatantly flout safety rules by entering exclusion zones into which he was forbidden entry;

•  Nothing justified his actions after speaking to the Work Health and Safety Queensland inspector;

•  Although his conduct caused minimal damage, it was a flagrant abuse of the power to enter the Project site to act contrary to the law, as if “those rules don’t apply to us and we can do whatever we want”;

•  There was little to no evidence of any contrition or evidence to “say that [Mr Blakeley] has ‘changed [his] ways’ or that [he] won’t behave in a similar manner in the future.”⁷

•  The offending of Mr Blakeley was less serious than that of Mr Gibson. Mr Blakeley did not verbally abuse any worker and did not ask anyone to fight him.

•  He was penalised recently for a contravention of s 500 of the Act. However, that contravention was for actions that occurred after this present contravention. The maximum penalty for the “previous” contravention was $13,320 as opposed to the $12,600 maximum penalty that applies in the present matter.

•  In that “previous” contravention, Mr Blakeley had the benefit of no previous contraventions as a factor in mitigation. He is a person who has a previous contravention, but Mr Blakeley committed the present contravention, he had no previous contravention.

•  It would be somewhat ridiculous if Mr Blakeley could contravene s 500 on two separate occasions and be given the benefit in mitigation of his having no previous contraventions to his name on both occasions.

•  Because:

•  the “previous” contravention is of a similar nature as the present contravention;

•  he was the follower and not the leader in the present contravention; and

•  there is a lesser maximum penalty,

the penalty imposed will not be as great a penalty upon him on this occasion as was imposed.

[7] When these proceedings were commenced at the Commission’s initiative and at the time the CFMMEU and the Commissioner had filed submissions, I had yet to determine what action should be taken in relation to Mr Blakeley’s entry permit as a consequence of the imposition by Judge Egan in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union⁸ of a penalty on Mr Blakeley for contravening s 500 of the Act on 5 November 2020.

[8] In its submissions, the CFMMEU contended that a suspension of Mr Blakeley’s permit for a period of 3 months was the appropriate action that should be taken under s 510(1) because:

•  While the contravening conduct was objectively serious, it was for a short period of time and in direct response to concerns about serious safety matters;

•  The contravening conduct was not gratuitous behaviour or unprovoked, rather it was reactive and it needs to be viewed within context;

•  Mr Blakeley has completed further training since the contravening conduct;

•  The Commission has not previously taken action against Mr Blakeley under s 510(1).

[9] The Commissioner also contended that a period of suspension was appropriate but maintained that a longer period than the minimum suspension period was appropriate having regard to the nature of the conduct in which Mr Blakeley engaged and the findings of the Court about the conduct, which were said to be at odds with the CFMMEU’s submissions summarised in the first two dot points above.

[10] Since those submissions were filed, and as earlier noted, on 8 June 2022 I suspended Mr Blakeley’s entry permit under s 510(1) for a period of three months.⁹ The CFMMEU and the Commissioner were invited to make and have made further submissions in the result. Both remain content for the matter to be determined on the papers.

[11] Section 510(4) of the Act relevantly provides:

(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:

. . .

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

. . .

[12] Sections 510(5) and (6) provide:

(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.

[13] As earlier noted, Mr Blakeley has returned his entry permit to the Commission following its suspension and the suspended permit is due to expire on 9 July 2022. Consequent on these events, an issue has arisen whether the Commission can take any action in relation to the suspended permit under s 510(1) of the Act before the permit expires. It is common ground and I accept that once the permit expires on 9 July 2022, no action under s 510(1) can be taken in relation to that permit. This is consistent with my conclusion in the matter of the Entry Permit of Jason Lawrence O’Mara.¹⁰

[14] In this regard the CFMMEU contends:

•  s 510(1) requires the Commission to suspend or revoke “each entry permit held by a permit holder” and is expressed in the present tense;

•  Mr Blakeley does not hold a permit and is thus not a permit holder and so the Commission does not have jurisdiction and power to take any action against the permit.

•  the permit was suspended for the remainder of its term and it has since been irrevocably surrendered by Mr Blakeley.

•  Alternatively, as a matter of discretion, the Commission should not take action against the permit before the expiry date because that would be inutile. This would be consistent with the object at s 480(c) of the Act because there is no need for further action to be taken to protect occupiers from right of entry conduct by Mr Blakeley in circumstances where he no longer has any right of entry.

[15] The Commissioner contends that Mr Blakeley continues to be a “permit holder” notwithstanding the suspension and return of his permit and that action may be taken under s 510(1) until the permit has expired.

[16] Ascertaining the legal meaning of a statutory provision necessarily begins with the ordinary grammatical meaning of the words used, having regard to their context and legislative purpose. Context includes the language of the Act as a whole, the existing state of the law, the mischief the provision was intended to remedy and any relevant legislative history.

[17] Section 15AA of the Acts Interpretation Act 1901 as in force on 25 June 2009¹¹ provided that in “the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”

[18] In SZTAL v Minister for Immigration and Border Protection¹²the plurality (Kiefel CJ, Nettle and Gordon JJ) succinctly described the contemporary approach to statutory construction as follows:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.’¹³ [Footnotes omitted]

[19] Section 510 of the Act 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:

....

(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

[20] Subsections (4) – (6) have been earlier set out.

[21] Section 511 deals with general rules for suspending entry permits and provides:

511 General rules for suspending entry permits

If the FWC suspends an entry permit, the suspension:

(a) must be for a specified period; and

(b) does not prevent the revocation of, or the imposition of conditions on, the entry permit during the suspension period; and

(c) does not alter the time at which the entry permit would otherwise expire.

[22] A “permit holder” means a person who holds an entry permit.¹⁴

[23] An “entry permit” is a permit issued on application by an organisation to an official of the organisation upon satisfaction by the Commission that the official is a fit and proper person to hold the entry permit.¹⁵

[24] Section 516 sets out when an entry permit expires and relevantly provides:

516 Expiry of entry permit

(1) Unless it is revoked, an entry permit expires at the earlier of the following times:

(a) at the end of the period of 3 years beginning on the day it is issued, or that period as extended under subsection (2);

(b) when the permit holder ceases to be an official of the organisation that applied for the permit.

[25] Section 517 imposes obligations on a permit holder to return an entry permit to the Commission in certain circumstances:

517 Return of entry permits to the FWC

When permit holder must return entry permit to the FWC

(1) A permit holder must return an entry permit to the FWC within 7 days of any of the following things happening:

(a) the permit is revoked or suspended;

(b) conditions are imposed on the permit after it is issued;

(c) the permit expires.

Note: This subsection is a civil remedy provision (see Part 4-1).

FWC to return entry permit to permit holder after suspension

(2) After the end of a suspension period, the FWC must return the entry permit to the permit holder if:

(a) the permit holder, or the permit holder‘s organisation, applies to the FWC for the return of the entry permit; and

(b) the entry permit has not expired.

[26] 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 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.

[27] The Commission is variously empowered by ss 505, 505A, 507, 508 and 510 of the Act to curtail the rights exercisable by persons holding an entry permit by, inter alia, suspending or revoking an entry permit in the circumstances with which those provisions are concerned. These powers are part of the balancing of rights established by Part 3-4 to which the object in s 480 speaks.

[28] It seems from the provisions set out above that an official of an organisation to whom a permit is issued under s 512 of the Act is a permit holder and does not cease to be so merely because the permit issued has been suspended. Mr Blakeley continues to meet the statutory description of “permit holder” because he has been issued with an entry permit pursuant to s 512, and for so long as that entry permit has not expired or been revoked. Section 517(2) lends some support for that construction because a person whose permit has been suspended is described as a “permit holder” who may apply may apply to the Commission for the return of the “entry permit” after the end of a suspension period and the permit must be returned if it has not expired. But it is also clear that the statute does not always use the description – “permit holder” consistently with the defined term. For example, s 517 provides that a “permit holder” must return an entry permit to the Commission within 7 days of, inter alia, the revocation of the permit or its expiry. Yet on the happening of either event, the person is no longer a permit holder. That which was an entry permit and has since been revoked or expired, is no longer an entry permit. A person in possession of such a permit cannot sensibly be said to “hold” an entry permit. And so, the person is not a “permit holder”.

[29] A person whose permit is suspended cannot exercise rights under Part 3-4 of the Act, lest the object of the suspension not be achieved. But for example, if Mr Blakeley remains a “permit holder” notwithstanding the suspension, he would arguably have standing to apply under s 483AA of the Act to apply to the Commission for an order allowing the permit holder to require an employer to inspect and make copies of non-member records in relation to a suspected contravention. The answer I think lies in understanding the difference between a permit holder and an entry permit. It is the latter which gives the permit holder licence to exercise rights under Part 3-4. When that licence is suspended so too is the authority to exercise those rights. But although an official’s entry permit is suspended, the official remains a permit holder because the permit has been issued, has not expired nor been revoked – it is merely suspended. In this sense, the person still holds an entry permit but the permit and the attendant rights it brings are suspended.

[30] In O’Mara¹⁶ I express the view that the word “held” in s 510(1) connoted the permit holder being is possession of a valid and unexpired permit and that an expired and returned permit is no longer held by a permit holder.¹⁷ While the latter proposition is correct, the former, on reflection needs refinement.

[31] The reference to permit holder throughout Part 3-4 of the Act is, as already observed, not always used consistently with its ascribed meaning in s 12 as the discussion above shows if one accepts that holds or held means physical possession. But to focus singularly on the words “permit holder” in section 510(1) will not yield the correct result.

[32] Section 510(1) is concerned with action that must be taken by the Commission, not against the permit holder, but in relation to each entry permit “held by the permit holder” because of the happening of one or more of the circumstances described, since the permit was issued. The reference to each “entry permit held” seems to me to refer to a permit issued under s 512 which has not been revoked or has not expired. The reference point in s 510(1) – “since the first of those permits was issued” – contemplates that the permit or permits at issue have been issued and have not expired or been revoked. Thus, an entry permit which has been suspended but has not expired is an entry permit to which s 510(1) directs attention. So much is clear from s 511(b) which provides that action in the form of revocation may be taken during the suspension period in relation to an entry permit that has been suspended by the Commission. In that context an entry permit “held” by a permit holder includes an unexpired but suspended entry permit. Although no doubt the phrase “each entry permit held by a permit holder” includes the permit holder being in possession of a valid and unexpired permit, it also contemplates the notion that an entry permit issued under s 512 which is suspended but has not been revoked and has not expired, is “held” by a permit holder notwithstanding its suspension. In this sense the permit is held by the permit holder because it has been issued, has not otherwise expired or been revoked, but its authority to allow the permit holder to exercise rights under Part 3-4 has been suspended. This construction aligns with the definition of “permit holder” in s 12 as a person who “holds” an entry permit. Understood in this way, the words “hold” and “held” when used in reference to an entry permit in the Act include physical possession but are not limited to physical possession.

[33] Were it otherwise, s 511(b), in so far as it is concerned with revocation of a permit already suspended, would have no work to do. Section 511 has operative effect on the powers in s 510(1). This is confirmed by the Explanatory Memorandum to the Fair Work Bill 2009 (Explanatory Memorandum) which explains that then clause 511 (now s 511) provides general rules that apply whenever FWA suspends an entry permit under clauses 505, 507, 508 and 510.¹⁸

[34] As already noted, the suspension of an entry permit has the result, in effect, of suspending the permit holder’s capacity to exercise rights under Part 3-4 for the suspension period. The imposition of a ban period means the permit holder cannot obtain another permit during the ban period. But, subject to the permit not expiring during the suspension period, the entry permit must, on application by the permit holder or the organisation of which the permit holder is an official, be returned to the permit holder, whereupon the permit holder can, without more, resume exercising Part 3-4 rights. A revocation of a permit on the other hand, removes from the permit holder the licence to exercise entry rights altogether. Resumption of the capacity of entry rights will only be possible if a new permit is issued, on application, and only after the ban period has ended.

[35] Other provisions in Part 3-4 also allow the Commission to suspend or revoke an entry permit. Sections 505 and 505A empower the Commission to deal with particular disputes about the exercise entry rights and enable to Commission to make orders, inter alia, suspending or revoking an entry permit. There is no reference at all in those sections to the entry permit being held by the permit holder, save that a “permit holder” is a person who “holds” an entry permit. Section 507 allows the Commission on application by an inspector or a person prescribed by the regulations, to take action against a permit holder, inter alia, by suspending or revoking “any entry permit issued to the permit holder”.

[36] Section 508 of the Act empowers a presidential member of the Commission or a Full Bench to take action to restrict the rights that are exercisable under Part 3-4 by an organisation, or officials of an organisation, if the Commission is satisfied that the organisation, or an official of the organisation, has misused those rights by, inter alia, suspending or revoking entry permits. There is no reference in this section to “permit holders” but that is explicable by the range of action that may be taken against an official which contemplates that action may be taken after the official has ceased to be a permit holder, for example requiring some or all of the entry permits that might in future be issued in relation to the organisation to be issued subject to specified conditions and banning, for a specified period, the issue of entry permits in relation to the organisation, either generally or to specified persons.

[37] However, it is not readily clear why s 507 uses the expression any “entry permit issued to the permit holder” in describing the action of revoking or suspending the permit but s 510(1) expresses the same action to be taken by reference to each “entry permit held by a permit holder”.

[38] It seems to me that the use of the words “issued” and “held” used in the two sections are intended to have the same meaning. The Explanatory Memorandum says of s 507 that the “provision allows FWA to suspend, revoke or impose conditions on any entry permit held by the permit holder (see paragraphs 507(1)(a)-(c))”.¹⁹ [Underlining added]

[39] This tends to confirm the view I have just expressed and is consistent with the reference to ‘holds” in the definition of “permit holder”. But again, as with s 510(1), the exercise for example, of the revocation power in s 507 is in relation to an entry permit that is issued, and which has not expired or been revoked.

[40] Thus, a reading of s 510(1) of the Act in context and taking into account the powers conferred upon the Commission in relation to entry permits under Part 3-4 of the Act results in a conclusion that action may be taken in relation to Mr Blakeley’s suspended entry permit before it expires on 9 July 2022 because the permit is still held by him. A contrary construction would lead to the undesirable result that no further action may not be taken in relation to a suspended entry permit during the suspension period, which appears to me to be contrary to the object of Part 3-4 and the important role that action under s 510(1) (as well as under the earlier cited provisions) plays in the right of entry scheme established by Part 3-4. It is also contrary to the express permission in s 511(b).

[41] There may, however, be some doubt as to whether suspension action may be taken in respect of an entry permit already suspended. The affirmation in s 511(b) of the Act that a suspended permit may be revoked during the suspension period, may by implication, having regard to the absence of any reference to a further suspension during a suspension period, mean that suspension of an already suspended permit is not available. All the more so since s 511(b) also contemplates the imposition of conditions on a permit during the suspension period. Thus, of the three main actions available to the Commission under ss 505, 505A, 507, 508 and 510, only two are mentioned in s 511(b).

[42] However, a revocation of Mr Blakeley’s suspended entry permit is available action under s 510(1) as s 511(b) makes clear. In the instant case, if suspension is available, there would be no practical difference between suspension or revocation of the entry permit. Both would result in the imposition of a ban period and would require the CFMMEU at the end of the period to apply for a new permit to be issued to Mr Blakeley, assuming he remained then employed, to give Mr Blakeley the capacity to exercise entry rights, including State and Territory OHS rights. The only real difference would be that he would cease to hold an entry permit a few days before it would otherwise have expired. But this too would be of no practical effect since he cannot exercise entry rights under Part 3-4 because his permit is currently suspended. Therefore, no practical injustice is visited on Mr Blakeley or the CFMMEU if revocation rather than suspension of the entry permit is the action taken under s 510(1).

[43] In these circumstances, if action is to be taken under s 510(1) then the surest course is for that action be to a revocation of Mr Blakeley’s suspended entry permit.

[44] The contravening conduct in which Mr Blakeley engaged, although not as egregious as Mr Gibson’s conduct, was nevertheless objectively serious. So much is properly conceded by the CFMMEU. The CFMMEU’s contentions earlier summarised were directed to the exercise of my discretion to suspend or revoke Mr Blakeley’s entry permit and assessing the duration of the suspension and ban period. The subsequently filed supplementary submissions make these somewhat redundant, nevertheless I will briefly address them. The improper conduct in which Mr Blakeley engaged on 20 April 2020, was serious and involved Mr Blakeley entering exclusion zones without authorisation, standing behind concrete trucks, blocking the delivery of concrete to the concrete pumps and was a flagrant abuse of the power to enter the Project site. I do not accept that the conduct was in direct response to concerns about serious safety matters nor do I accept that the contravening conduct was not gratuitous behaviour or unprovoked but rather reactive. These contentions are contrary to the Court’s findings. The Court noted that it is very difficult “to find that the actions of [Messrs Blakeley and Gibson] were, in any way, the result of their concern for safety at the worksite”,²⁰ that Mr Blakeley blatantly flouted safety rules by entering the exclusion zones and that nothing justified his actions after speaking to the Work Health and Safety Queensland inspector. 21
[45] The Court also noted that although his conduct caused minimal damage, it was a flagrant abuse of the power to enter the Project site to act contrary to the law, as if “those rules don’t apply to us and we can do whatever we want”.²²

[46] As to the issue of training, the same training was relied on by the CFMMEU in the matter of the Entry Permit of Andrew Robert Blakeley 23. I adopt without repeating what is said at [15] of that decision and would add that there is also no evidence about what Mr Blakeley has learned by undertaking the training, particularly by reference to the nature of his contravening conduct that led to the imposition of a penalty by the Court the subject of this proceeding.

[47] In the circumstances which now pertain, nothing in the CFMMEU’s submissions persuades me that suspension, if it were available, instead of revocation should be the course adopted. As I have noted, no practical difference arises in the result. Nor do any of the CFMMEU’s submissions including those going to the power to take action persuade me that revocation of the permit would be harsh or unreasonable in the circumstances.

[48] I also do not accept the CFMMEU’s contention that taking revocation action would be inutile. Section 510(1), subject to some limited exceptions, requires the Commission to take action vis-à-vis Mr Blakeley’s entry permit when one of more of the enumerated circumstances arises. One of those described in s 510(1)(d) has arisen as earlier discussed. That Mr Blakeley’s suspended permit will soon expire and that it is currently suspended, does not render any action inutile. Action taken under s 510(1) is accompanied by a ban period imposed under s 510(5), which will prevent the issue of any further entry permit to Mr Blakeley for a specified period. This ban period will operate from the time of revocation and continue for a period after the entry permit expires on 9 July 2022 and beyond the current operative ban period. The action taken will thus have purpose.

[49] For the reasons stated I propose to revoke Mr Blakeley’s suspended entry permit under s 510(1).

[50] Next is the question of the ban period that must be imposed by reason of s 510(5) of the Act. In this regard the CFMMEU contends that it accepts that, if I determine that the Commission can and should take action, a ban period is prima facie required. However, the CFMMEU contends that there is an incongruity within s 510(6). It says that a ban period is required whether the action taken is a suspension or revocation. And if the action taken is a suspension, the minimum duration of the ban period is readily ascertainable via s 510(6)(b). However, if the action taken is a revocation, the minimum duration of the ban period is not ascertainable because there is no suspension period as required by s 510(6)(b). Consequently, the CFMMEU contends that it is to be doubted whether a ban period can be ordered because the language of s 510(6) is mandatory and one of the pre-requisites cannot be made out.

[51] Sections 510(4) and (6) provide:

(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.

. . .

(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.

[52] There are two possible answers to the CFMMEU’s contention.

[53] The first is that the reference in s 510(6)(b) to “the minimum suspension period” is no more than a reference to the defined term as set out in the bracketed words at the beginning of s 510(4) and thus the ban period in relation to a revocation is ascertainable, in the current circumstances, as a period no shorter than 12 months (s 510(4)(b)). In other words, it operates as a reference point for the determination of the length of the ban period without the need, in the case of a revocation, for an actual suspension period.

[54] The second is – as the Commissioner contends – the fact there is no minimum ban period ascertainable if there is a revocation, rather than a suspension, stands as a matter of logic. This is because a suspension runs for a specified period, after which the entry permit must be returned to the permit holder on application and may be used again for the purpose of exercising entry rights. A revocation is permanent, with the consequential ban being at the unfettered discretion of the Commission. In other words, although a ban period must be imposed whenever action is taken under s 510(1), the limitation in s 510(6)(b) operates only when the action taken is suspension.

[55] I consider that the first construction is to be preferred. On the second construction, the Commission could revoke a permit, which is the more severe action of the two options available and as is the case here, having previously taken action under s 510(1), the Commission could (on the unfettered discretion theory) impose a ban period of say 6 months. But this would be less than the ban period required in the case of a suspension, which would be at least 12 months.

[56] I consider that a ban period can be imposed and having regard to the nature of the conduct in which Mr Blakeley engaged, the purpose of the power in s 510 and the object of Part 3-4, there is no warrant for imposing a period longer than “the minimum suspension period” identified in s 510(4)(b) and which would pertain if I had suspended rather than revoked the permit.

Order

[57] I order:

1. Pursuant to s 510(1) the entry permit held by Andrew Robert Blakeley is revoked with effect on 7 July 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 12 months commencing on the 7 July 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR743375>

1 In the matter of the Entry Permit of Andrew Robert Blakeley [2022] FWC 1408 at [20]

2 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2022] FedCFamC2G 40

3 In the matter of the Entry Permit of Andrew Robert Blakeley [2022] FWC 1408 at [20]

4 [2022] FedCFamC2G 156

 5   Ibid

6 [2022] FedCFamC2G 156 at [3]-[30]

⁷ Ibid at [51]-[57]

8 [2022] FedCFamC2G 40

9 In the matter of the Entry Permit of Andrew Robert Blakeley [2022] FWC 1408 at [20]

10 [2021] FWC 3155

11 See Fair Work Act 2009, s 40A

12 (2017) 262 CLR 362

13 Ibid at [14]

14 See Fair Work Act 2009, s 12

15 See Fair Work Act 2009, ss 12 and 512

16 [2021] FWC 3155

17 Ibid at [19]

18 At [2037]

19 At [2019]

20 [2022] FedCFamC2G 156 at [48]

 21   Ibid at [53]-[54]

22 Ibid at [56]

 23   [2022] FWC 1408