DECISION

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

Fair Work Commission
v
David Kirner
(RE2016/586)

Suspension and ban of entry permit under s.510 of the Fair Work Act 2009 (Cth) – whether suspension harsh or unreasonable in the circumstances – suspension and ban for three months.

Background

[1] Mr David Kirner currently holds the offices of South Australian District Secretary and National Vice President in the Forestry, Furnishing, Building Products and Manufacturing Division of the Construction, Forestry, Mining and Energy Union (CFMEU). Mr Kirner is also currently the holder of an entry permit issued under s.512 of the Fair Work Act 2009 (Cth) (Act). Mr Kirner’s entry permit expires on 17 February 2018.

[2] In judgments delivered on 20 November 2015 and 22 April 2016, Justice White of the Federal Court of Australia found that Mr Kirner contravened s.500 of the Act on 22 November 2013 by acting in an improper manner, while seeking to exercise rights in accordance with Part 3–4 of the Act. Justice White ordered Mr Kirner to pay a pecuniary penalty of $700 and the CFMEU to pay a pecuniary penalty of $18,000 in relation to the contravention by Mr Kirner of s.500 of the Act on 22 November 2013. 1 On 17 May 2017, the Full Court of the Federal Court (North, Besanko and Flick JJ) dismissed appeals by Mr Kirner and the CFMEU against the earlier decisions by Justice White.2

[3] This decision concerns whether I should revoke or suspend Mr Kirner’s entry permit pursuant to s.510 of the Act. The Commission commenced this matter on its own initiative.

[4] Mr Kirner and the CFMEU filed and served an outline of submissions dated 20 September 2017, together with witness statements made by Mr Kirner on 20 September 2017 and Ms Elizabeth Anne Dooley, Senior National Legal Officer of the CFMEU, on 2 August 2017.

[5] The Australian Building and Construction Commissioner (ABCC) filed an outline of submissions dated 11 October 2017.

[6] The parties agreed that I should determine the present matter “on the papers”.

[7] In determining this matter I have had regard to the submissions and witness statements (including the attachments thereto) referred to in paragraphs [4] and [5] above, together with the Federal Court judgments referred to in paragraph [2] above.

Agreed matters

[8] There is no dispute between the parties that Mr Kirner has been ordered to pay a pecuniary penalty under the Act in relation to a contravention of Part 3–4 of the Act. So much is clear from the Federal Court judgments referred to in paragraph [2] above. Accordingly, the Commission must revoke or suspend Mr Kirner’s entry permit unless it is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances (ss.510(1)(d) and 510(2) of the Act). 3

[9] Because the Commission has not previously taken action under s.510(1) against Mr Kirner, any suspension of his entry permit must be for a period of at least three months (s.510(4) of the Act). Further, if Mr Kirner’s entry permit is suspended under s.510(1) of the Act, the Commission must also ban the issue of any further entry permit to Mr Kirner for a period of at least three months, commencing when the period of suspension commences (ss.510(5) and (6) of the Act).

Positions of the parties

[10] Mr Kirner and the CFMEU submit that:

(a) the Commission should not impose any suspension or take any other action against Mr Kirner because such action would, in the circumstances, be harsh or unreasonable; or

(b) alternatively, the Commission should not impose any suspension, revocation or ban that exceeds the minimum three month suspension.

[11] The ABCC submits that the Commission should suspend Mr Kirner’s entry permit for a period of three months and ban the issue of any further entry permit to Mr Kirner for a period of three months from the date of commencement of the suspension.

[12] The ABCC has not sought a revocation of Mr Kirner’s entry permit and I am satisfied in the circumstances of this case that a revocation would not be appropriate.

Mr Kirner’s contravening conduct

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

“Events on 22 November 2013

40 The Court heard evidence from two witnesses as to the conduct of Mr Kirner alleged to comprise the contravention of s 500 on 22 November 2013. They were Mr Bickerdike and Mr Kirner.

41 Mr Bickerdike was the more impressive witness as in general (but not always) he answered questions responsively and appropriately. In addition, he had the advantage of his contemporaneous notes. However, some of his evidence had a defensive quality about it.

42 Mr Kirner’s evidence was marked by self-justificatory and non-responsive answers to questions. He answered many questions at an unhelpful level of generality. I had the firm impression that Mr Kirner frequently understood the implications of a question and sought, consciously, to avoid them. This undermined my confidence in the reliability of his evidence.

43 On those topics on which there were conflicts in the evidence of Mr Bickerdike and Mr Kirner, I have generally preferred that of Mr Bickerdike. There are, however, some aspects of Mr Bickerdike’s evidence which I do not accept.

44 Mr Kirner arrived at the SAHMRI site at about 11 am. He went first to the sign-in office located adjacent to Gate 3 on an access road running alongside the northeastern boundary of the site. He signed the Visitors’ Book, entering “EBA/OHS” as the reasons for his visit. These were abbreviations for “enterprise bargaining agreement” and “occupational health and safety” respectively.

45 The Visitors’ Book records Mr Kirner’s time of entry as 4 pm and the time of his departure as 5 pm. These times are obviously inaccurate. Mr Kirner said that he had not entered either time. I am willing to accept that evidence but it means that Mr Kirner must have failed to comply with the requirements for a site visit by not entering any arrival or departure times at all.

46 Mr Kirner then walked outside the perimeter of the SAHMRI site back to North Terrace before turning and walking in a westerly direction along North Terrace (again outside the perimeter of the site) until he reached Gate 1 or Gate 2 (he could not recall which). Gate 1 was further to the west than Gate 2. Mr Kirner entered one or other of these gates but did not proceed very far because he was informed that Mr Bickerdike was aware of his presence. He then waited for Mr Bickerdike to arrive, talking in the meantime to Mr Neale, a Safety Officer, and Mr Thornley, a Hindmarsh Manager.

47 Mr Bickerdike learnt at about 11 am that Mr Kirner had entered the SAHMRI site. He went to Gate 1. Mr Kirner was then standing approximately 8 metres inside the site perimeter fencing near Gate 1. Mr Kirner said that he had been in the position near Gate 1 for approximately 10-15 minutes before Mr Bickerdike arrived but I consider that it was probably well less than that, and probably about five minutes.

48 Mr Bickerdike told Mr Kirner immediately that he had not provided a notice of entry and asked him why he was on site. There is a difference between Mr Bickerdike and Mr Kirner as to Mr Kirner’s response. Mr Bickerdike said that Mr Kirner told him that he was on site to discuss three issues: the Enterprise Bargaining Agreement between a subcontractor, Ausrise, and its employees; allegations of underpayment; and a risk of self-harm involving an employee of Construction Glazing. Mr Kirner, on the other hand, said that he had told Mr Bickerdike of only two matters, in the following terms:

I’m here for two reasons, the safety issue (suicide) and the EBA issue. Ausrise are aware of the ballot as they asked me to conduct it. I assume that Hindmarsh knew I was coming down because I would have thought you have seen the posters up about it in the lunchroom. And I’m not leaving on the safety issue, but I’ll have the ballot out the front of the gate.

I will make findings about this difference shortly.

49 Mr Bickerdike then asked to see Mr Kirner’s entry permit. Mr Kirner produced the right of entry permits issued by the FWC under s 512 of the FW Act and by the authorising authority under s 134 of the WHS Act. Mr Bickerdike inspected each permit.

50 Mr Bickerdike told Mr Kirner that he understood that Mr Kirner had to provide a notice of entry if he intended to conduct official union business. Mr Kirner responded saying that he would be going on site. Mr Bickerdike repeated his request that Mr Kirner leave. He told Mr Kirner that he was welcome to have his discussions with the Ausrise workers off site, on the footpath, in a coffee shop, or anywhere else but not inside the site boundary. Mr Kirner responded saying that he was not a dog and would not go out onto the footpath. Mr Bickerdike answered saying that he had not called Mr Kirner a dog and that footpaths are used by pedestrians.

51 At this stage, Mr Bickerdike used his mobile phone to take photographs of Mr Kirner. He had not asked for Mr Kirner’s consent to do so. Mr Kirner raised his fist in what he described in his evidence as the “solidarity symbol”. Mr Kirner then walked away from him by a semi-circular route to Gate 1 through which he exited the site. Mr Bickerdike said that in doing so, Mr Kirner walked between a parked concrete truck and a concrete pump.

52 Mr Kirner’s account was similar but less complete. He said that after inspecting his two entry permits Mr Bickerdike asked aggressively “are you refusing to leave [the] site?” and then used his mobile phone to take photographs of him. Mr Kirner said that he then responded:

You all know there was going to be a ballot today. But if you’re not going to let me have a ballot in the lunchroom area, then I’ll have it outside the front gate. I will need to contact some of the workers to let them know we need to have the ballot outside the front gate.

53 I regard Mr Bickerdike’s account about these matters as more likely, and accept it. As I have said, he was the more impressive of the two witnesses and he had the advantage of some notes made that same day.

54 It is true that the reliability of Mr Bickerdike’s notes is diminished by some inaccuracies. The notes were made on a pro-forma electronic document provided to Hindmarsh by Master Builders South Australia. In the box adjacent to the query “What was the reason given for entry?” Mr Bickerdike wrote “No reason given”. Mr Bickerdike acknowledged that that was wrong and that Mr Kirner had given him the reasons referred to earlier.

55 In the box adjacent to the question “Did any work stop during the discussions?”, Mr Bickerdike wrote “Yes”. In his cross examination, he said that he was referring to his own work which had been interrupted for about 30 minutes. It is improbable that the query related to the work of Mr Bickerdike himself, as it appeared under the heading concerning discussions by a union official with employees pursuant to s 484 of the FW Act or s 121 of the WHS Act. I thought that Mr Bickerdike’s evidence on this topic was not convincing and that he was attempting retrospectively to justify an erroneous answer in the pro-forma questionnaire.

56 Mr Bickerdike also said that work had stopped in the structural plenum by reason of Mr Kirner walking between the parked concrete truck and a concrete pump. Mr Kirner denied doing so. I accept that this may have been a short pause in the work as those in the vicinity looked at Mr Bickerdike confronting Mr Kirner, but consider that that was for a few minutes only. Otherwise, Mr Kirner’s presence did not have the effect of stopping work.

57 I am satisfied that, after speaking to Mr Bickerdike, Mr Kirner did walk further into the site, by following the semicircular route on his way to Gate 1. By this time he had decided in his own mind that he would conduct the planned EBA ballot on North Terrace but he had not told Mr Bickerdike of this. Accordingly, Mr Bickerdike construed his conduct as that of him deliberately walking further into the site. Instead, Mr Kirner was looking for a means of letting the Ausrise workers know. He decided to ask Mr Thornley to inform the Ausrise workers that he would conduct the ballot on the footpath of North Terrace and had to walk further into the site to make that request. In doing so he walked between the concrete truck and the concrete pump, but that was only momentary.

58 Mr Kirner then left the site walking through Gate 1 onto North Terrace.

59 Mr Thornley must have conveyed Mr Kirner’s message as, shortly afterwards, the Ausrise workers did leave the site and move to the footpath on North Terrace. Mr Kirner conducted the planned ballot at that location.

60 Mr Bickerdike then left the area to return to his own duties. He asked Mr Neale to monitor Mr Kirner’s meeting and, in the event that he tried to reenter, to tell him to leave.

61 The EBA ballot which Mr Kirner conducted with the Ausrise workers took about 10 minutes. On its completion, Mr Kirner reentered the SAHMRI site. There is no evidence that any attempt was made to preclude him from doing so.

62 Mr Kirner went to the lunchroom in the basement on the site. His purpose was to obtain assistance for Paul, the employee of Construction Glazing, who he thought was at risk of suicide. In the lunchroom, he spoke to a number of workers whom he knew to be employed by Construction Glazing and to be CFMEU members.

63 Mr Kirner informed the employees of Paul’s situation and of a program known as “Mates In Construction”. That is a program directed to reducing suicide risk and improving the mental health and wellbeing of workers within the Australian construction industry. Mr Kirner asked the workers who knew Paul to contact him and provide him with support.

64 Mr Kirner then left the site and did not return again that day. The evidence did not disclose the time at which Mr Kirner left the site.

65 Later that day, at 2:35 pm, Mr Kirner provided a written report to SafeWork SA. He believed that s 117(6) of the WHS Act obliged him to do so.

66 It is convenient at this point to make findings as to the difference in the evidence about Mr Kirner’s statement of his purpose for attending the site. Mr Kirner’s account that he had mentioned only two matters is supported by the reasons for the visit which he had recorded in the Visitors’ Book. Mr Bickerdike’s account is supported by the written notes of the incident which he prepared in the form of a report later the same day. As already indicated, my confidence in the reliability of that report was diminished by the inaccuracies to which I referred earlier. However, in the circumstances, I consider it unlikely that Mr Bickerdike was mistaken about the reasons Mr Kirner gave for the visit and I accept his evidence. He had asked Mr Kirner expressly as to his purpose. An underpayment issue was plainly an issue about which the CFMEU could be legitimately concerned, and its inclusion may, at least in part, have justified Mr Kirner’s attendance. It may be that Mr Kirner gave less prominence to the underpayment issue in his own mind, possibly because he regarded it as being secondary to the principal reasons for his attendance.

67 I also consider it unlikely, and do not accept, that Mr Kirner told Mr Bickerdike in their first interchange that he would conduct the EBA ballot outside the front gate. His initial response to Mr Bickerdike was that he would be going on to the site.

…

175 The Director relied on a number of features of Mr Kirner’s conduct, in combination, as warranting the characterisation of his conduct as improper. These were his failure to provide a notice of entry pursuant to s 487, his entry on to the site without authorisation, his failure immediately to leave the site when requested to do so by Mr Bickerdike, his remaining on site for some 40 minutes, his failure to enter the time in and time out details in the Visitors’ Book, and the inconvenience which he caused to Hindmarsh employees.

176 On my findings, some aspects of this conduct are not made out. Although Mr Kirner initially resisted Mr Bickerdike’s request that he leave, he acceded to that request very soon after. It is true that he did not leave by the shortest and direct route. I accept however, that he moved further in to the site only in order to make his request of Mr Thornley that he inform the Ausrise employees that the ballot would be conducted on the North Terrace footpath. Mr Kirner did not remain on site for 40 minutes. It is true that he returned but, for the reasons given earlier, I do not regard his conduct in returning as part of the Director’s pleaded case of improper conduct.

177 It is apparent that the interchange between Mr Bickerdike and Mr Kirner was not pleasant. On my assessment of Mr Bickerdike, I consider that it may well be the case that he spoke a little brusquely to Mr Kirner, and that Mr Kirner responded in kind. I think it likely that Mr Kirner resented being told, in front of others, to leave the site. I also think it likely that he resented Mr Bickerdike taking photographs of him and that he made that plain by raising his fist in the form of the solidarity symbol. Mr Kirner asserted himself to an extent by not leaving the site directly but by proceeding further into it, despite Mr Bickerdike’s direction. I consider also that Mr Kirner was likely annoyed that he had not been able to “get away” with his entry on this occasion.

178 On my assessment, however, Mr Kirner’s conduct does warrant being characterised as “improper”, although it is far from being the most egregious conduct of that kind. That is because Mr Kirner entered the site without providing a notice of entry, and without completing all of the formalities in the Visitors’ Book. He thought that he could ‘get away with it’ as he had on previous occasions and, when confronted by Mr Bickerdike, did not leave the site immediately. Instead, he was the cause of an unpleasant interchange.

179 There are however, aspects of Mr Kirner’s conduct which are to his credit. These include the circumstance that, when informed that Mr Bickerdike would be coming, he did wait before proceeding further in to the site and that he did, within a short time of Mr Bickerdike’s request, leave the site.”

[14] Justice White summarised Mr Kirner’s contravening conduct in the Penalty Judgment as follows:

“Mr Kirner

30 In November 2013, Mr Kirner was the District Secretary of the Forestry and Furnishing Products Division of the CFMEU in South Australia.

31 Mr Kirner’s contravening conduct is described at [40]-[58] and [175]-[179] of the principal judgment. Essentially, Mr Kirner entered the construction area of the SAHMRI site at about 11 am on 22 November. Having been told (in effect) that Mr Bickerdike was coming, he waited for about five minutes in a position some 8 m or so inside the perimeter fence. Initially Mr Kirner refused Mr Bickerdike’s request that he leave and an unpleasant exchange between Mr Bickerdike and him then occurred. Mr Kirner then decided to leave, but did not give Mr Bickerdike an indication that he was doing so. Instead, he walked further into the site to ask a Hindmarsh employee to let the Ausrise employees know that the Enterprise Bargaining Agreement ballot would now take place on the North Terrace footpath. All in all, it is likely that Mr Kirner was on the site at this stage for about 10-15 minutes.

32 In the principal judgment, I rejected Mr Kirner’s claims that he had been entitled to enter the site pursuant to a standing invitation issued to him by Hindmarsh; that he had been entitled to enter by reason of the request by Ausrise that he conduct the EBA ballot; and that he had been entitled to enter pursuant to s 117 of the Work Health and Safety Act 2012 (SA). I was satisfied that Mr Kirner knew that a notice of entry was required but thought that he could get away without providing such a notice on this occasion. His belief in that respect was, in part, informed by the circumstance that he had also been able to do so on several previous occasions. Mr Kirner’s knowledge that notices of entry were required arose from Mr Bickerdike’s statements to him earlier in 2013 and, as found in the principal judgment at [100], Mr Kirner had previously provided such notices.

33 I found that Mr Kirner’s conduct was improper because he had entered the site without providing a notice of entry, without completing all the details required in the Visitors’ Book and because he had not complied immediately with Mr Bickerdike’s request that he leave. In assessing the significance of Mr Kirner’s conduct, I think it reasonable to infer that he was aware at the time that proceedings had been taken against the CFMEU and other of its officials for contraventions of s 500. Accordingly, Mr Kirner can be taken to have been aware of the need to comply with the requirements of the FW Act.

34 The Director does not allege that Mr Kirner’s contravention caused any quantifiable loss or damage to Hindmarsh. There was, on my findings at [56], a short pause in the work on a structural plenum by reason of Mr Kirner walking between a parked concrete truck and a concrete pump and because those in the vicinity paused to look at the confrontation between Mr Bickerdike and Mr Kirner. However, these disruptions for work can have been for only a few minutes and there is no suggestion that they had a practical consequence. It is appropriate however, to take into account that Mr Bickerdike was distracted from the performance of his usual work while addressing Mr Kirner’s unlawful entry.

35 I found that Mr Kirner had been the cause of an unpleasant interchange at the site: at [178]. Some of the submissions of the respondents’ counsel on the penalty hearing sought, inappropriately, to undermine that finding by attributing responsibility to Mr Bickerdike. I consider that it is appropriate to proceed on the basis that, had Mr Kirner not entered without providing a notice of entry, and had he complied immediately with Mr Bickerdike’s request, the unpleasant interchange which followed would not have occurred.

36 I agree with the submission of counsel for the respondents that Mr Kirner’s failure to enter all the required details in the Visitors’ Book is not, by itself, of much moment. First, it appears to have been inadvertent omission. Secondly, a review of the Visitors’ Book indicates numerous other instances in which visitors have not completed all the details and Mr Bickerdike acknowledged Hindmarsh had not taken action to enforce compliance.”

Suspension harsh or unreasonable?

[15] The power of the Commission under s.510(1) and (2) of the Act is informed not by the need to punish individuals (which is properly a function of the Court in other proceedings), but by the need to establish or maintain the balancing of rights and obligations between employees, unions, occupiers of premises and employers. 4 The jurisdiction is protective and corrective, not penal.5

[16] In determining whether any period of suspension would be harsh or, in the particular circumstances, unreasonable, the Commission should have regard to all of the relevant circumstances, including the seriousness of the contravention. 6

[17] I also accept that the likelihood of a permit holder contravening Part 3–4 again is relevant to the question of whether a suspension of the permit holder’s right of entry would be unreasonable or harsh in the circumstances.

[18] Mr Kirner and the CFMEU submit that the following circumstances, when considered together, strongly suggest that taking further action against Mr Kirner by way of a suspension would be unreasonable or harsh:

(a) the fact that the matters relevant to the contravention happened almost four years ago;

(b) the contravention objectively viewed is a very low level contravention;

(c) Mr Kirner has been of good behaviour for a considerable period of time before and after the contravention. In particular, Mr Kirner has been a union employee or officer since 1987 and has continuously held a Federal right of entry permit since the first scheme of legislative permits was introduced in 1997 under the Workplace Relations Act 1996 (Cth). Mr Kirner has no contraventions of any industrial laws against his name, save for the contravention found against him by Justice White;

(d) Mr Kirner had legitimate reasons for wanting to be on site on 22 November 2013. In particular Mr Kirner attended the site to conduct an enterprise agreement ballot and to notify workers that their workmate, who Mr Kirner believed was at risk of self–harm, was being released from hospital and to ask them to provide support to him;

(e) Mr Kirner has promised that he will not engage in contravening conduct again. Mr Kirner accepts that his conduct on 22 November 2013 was improper and has apologised for it;

(f) Mr Kirner has also undergone further right of entry training since the events of 22 November 2013 and understands his rights and obligations as a permit holder under the Act; and

(g) any period of suspension will have an effect on the ability of the CFMEU to represent members who are not responsible for Mr Kirner’s contravention of the Act.

[19] I accept that a suspension of Mr Kirner’s entry permit will have an impact on the CFMEU’s ability to service its members in the region in which Mr Kirner ordinarily operates. However, there is no suggestion that a suspension would have an impact on Mr Kirner’s employment with the CFMEU and the CFMEU could, no doubt at some inconvenience and cost, move one of its other permit holders to the region in which Mr Kirner works to cover his period of suspension. Further, the suspension of a permit holder is an ordinary effect of s.510 of the Act and is perhaps something to which Mr Kirner should have turned his mind before acting in an improper manner on 22 November 2013. 7 For these reasons, I will only give limited weight to the factor referred to in paragraph [18(g)] above in deciding whether or not a suspension of Mr Kirner’s entry permit would be unreasonable or harsh.

[20] I do not accept the characterisation given by Mr Kirner and the CFMEU to his contravention as being a “very low level contravention”. Mr Kirner’s conduct in initially refusing to leave the work site after being given a lawful direction to do so was deliberate conduct on his part. Further, Justice White found that “Mr Kirner knew that a notice of entry was required but thought that he could get away without providing such a notice on this occasion” and Mr Kirner was the cause of the unpleasant interchange with Mr Bickerdike at the site. 8 These matters go to the seriousness of the contravention. In the result, I agree with Justice White’s assessment that Mr Kirner’s improper conduct was “far from being the most egregious conduct of that kind”9, but it did not represent “the least serious, on a scale of seriousness, of s 500 contraventions”.10 I am satisfied that Mr Kirner’s conduct the subject of the contravention was deliberate and serious, although toward the lower end of the range of seriousness of contraventions of s.500 of the Act.

[21] Mr Kirner made no expressions of regret or contrition in the proceedings before Justice White. 11 However, I accept that Mr Kirner has in connection with the present proceedings acknowledged that his conduct the subject of the contravention on 22 November 2013 was improper, apologised for his improper conduct, and, since the findings by the Federal Court were made, has “endeavoured to behave at all times in a proper manner in accordance with the FW Act”.12 These matters weigh in favour of Mr Kirner’s argument that a suspension of his entry permit would be unreasonable and/or harsh.

[22] I also accept that the matters referred to in paragraphs [18(a), (c), (d) and (f)] above, considered together and with the other matters to which I have referred to in paragraphs [19] and [21] above, weigh in favour of Mr Kirner’s argument that a suspension of his entry permit would be unreasonable and/or harsh. However, having regard to all the circumstances, including the deliberate and serious nature of the improper conduct the subject of Mr Kirner’s contravention of s.500 of the Act, and balancing the rights of organisations to represent their members in the workplace with the rights of the occupiers of premises to go about their business without undue inconvenience, I am satisfied that a suspension of Mr Kirner’s right of entry would not be unreasonable or harsh in the circumstances. Having regard to the same considerations, I am satisfied that a suspension and ban for a period of three months would be appropriate in the circumstances.

Conclusion

[23] For the reasons set out above, I will make an order that Mr Kirner’s entry permit be suspended for a period of three months and there be a ban on the issue of any further entry permit to Mr Kirner for the same period.

COMMISSIONER

Final written submissions:

Construction, Forestry, Mining & Energy Union Forestry, Furnishing, Building Products & Manufacturing Division, 20 September 2017

Australian Building and Construction Commission, 11 October 2017

 1   Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 (Liability Judgment) and Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 414 (Penalty Judgment)

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

 3   s.510(3) of the Act is not relevant to this matter

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

 5   Australia Building and Construction Commission v McLoughlin [2007] AIRC 717 at [221]; Fair Work Commission [2011] FWA 5824 at [26]

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

 7   Director of the Fair Work Building Industry Inspectorate v Perkovic [2015] FWC 4062 at [38]; Perkovic v Director of the Fair Work Building Industry Inspectorate [2015] FWCFB 5867 at [16]; Director of the Fair Work Building Industry Inspectorate v Smart [2015] FWC 3656 at [16]

 8   Penalty Judgment at [32] & [35]

 9   Liability Judgment at [178]

 10   Penalty Judgment at [46]

 11   Penalty Judgment at [38]

 12   Statement of Mr Kirner dated 20 September 2017 at [10]

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