[2020] FWC 97 [Note: An appeal pursuant to s.604 (C2020/461) was lodged against this decision - refer to Full Bench decision dated 11 June 2020 [[2020] FWCFB 2912] for result of appeal.]
FAIR WORK COMMISSION

DECISION


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

In the matter of the Entry Permit of Blake Patrick Hynes
(RE2019/1102)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 21 JANUARY 2020

In the matter of the Entry Permit of Blake Patrick Hynes; penalty imposed for a contravention of s.500 of the Act; whether to suspend or revoke entry permit; whether suspension in the circumstances harsh or unreasonable; permit revoked; Commission must not issue a further permit to Mr Hynes for a period of 3 months beginning on the date of this decision.

[1] Mr Blake Patrick Hynes is an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and is employed by it as an organiser. Mr Hynes is the holder of a right of entry permit issued pursuant to s.512 of the Fair Work Act 2009 (Act) (the Permit). The Permit was issued to Mr Hynes on 9 March 2018 and will, absent other intervening events, expire on 9 March 2021. 1

[2] In Australian Building and Construction Commissioner v Hynes & Anor (ABCC v Hynes), 2 Jarrett J declared that:

•  Mr Hynes contravened s.500 of the Act when, on 23 August 2018, he acted in an improper manner towards Mr Steven James, General Manager of Enco Precast Pty Ltd whilst exercising rights in accordance with Part 3-4 of the Act at the Logan Enhancement Project located in the State of Queensland; and

•  the CFMMEU was involved in Mr Hynes’ contravention of s.500 of the Act by being directly or indirectly, knowingly concerned in or a party to Mr Hynes’ contravention for the purposes of s.550(1) of the Act.

[3] His Honour relevantly ordered that Mr Hynes pay a pecuniary penalty of $4,400 in respect of the s.500 contravention the subject of the declaration to which reference is made above. The CFMMEU was ordered to pay a pecuniary penalty of $34,650 in respect of the s.500 contravention.

[4] On 4 November 2019, the representatives of Mr Hynes and the CFMMEU notified the Fair Work Commission (Commission) of the judgment of the Federal Circuit Court. Following receipt of the correspondence, the Commission initiated consideration of whether the Permit held by Mr Hynes should be revoked or suspended pursuant to s.510 of the Act.

[5] On 12 November 2019, the Australian Building and Construction Commissioner (ABCC) advised that he wished to be heard in relation to the matter. The parties provided consent directions to my Chambers which were thereafter issued. Both parties agreed that the matter could be determined on the papers and on 11 December 2019 my Chambers advised the parties of my decision that the matter would be determined on the papers.

Consideration

Relevant statutory provisions

[6] Section 500 of the Act provides as follows:

“Permit holder must not hinder or obstruct

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

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

Note 2:       A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.

Note 3:       A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).”

[7] Section 500 of the Act, along with s.510 of the Act, are part of a right of entry scheme established by Part 3–4 of the Act. Relevantly, s.510 of the Act provides the following:

“When the FWC must revoke or suspend entry permits

When the FWC must revoke or suspend entry permits

(1)  The FWC must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that any of the following has happened since the first of those permits was issued:

(a) the permit holder was found, in proceedings under this Act, to have contravened subsection 503(1) (which deals with misrepresentations about things authorised by this Part);

(b) the permit holder has contravened section 504 (which deals with unauthorised use or disclosure of information or documents);

(c) the Information Commissioner has, under paragraph 52(1)(b) of the Privacy Act 1988, found substantiated a complaint relating to action taken by the permit holder in relation to information or documents obtained under section 482, 483, 483B, 483C, 483D or 483E;

(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;

(e) a court, or other person or body, under a State or Territory industrial law:

(i) cancelled or suspended a right of entry for industrial purposes that the permit holder had under that law; or

(ii) disqualified the permit holder from exercising, or applying for, a right of entry for industrial purposes under that law;

(f) the permit holder has, in exercising a right of entry under a State or Territory OHS law, taken action that was not authorised by that law.

(2)  Despite subsection (1), the FWC is not required to suspend or revoke an entry permit under paragraph (1)(d) or (f) if the FWC is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.

(3)  Subsection (1) does not apply in relation to a circumstance referred to in a paragraph of that subsection if the FWC took the circumstance into account when taking action under that subsection on a previous occasion.

Minimum suspension period

(4)  A suspension under subsection (1) must be for a period that is at least as long as the period (the minimum suspension period) specified in whichever of the following paragraphs applies:

(a) if the FWC has not previously taken action under subsection (1) against the permit holder--3 months;

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

(c) if the FWC has taken action under subsection (1) against the permit holder on more than one occasion--5 years.

Banning issue of future entry permits

(5)  If the FWC takes action under subsection (1), it must also ban the issue of any further entry permit to the permit holder for a specified period (the ban period).

(6)  The ban period must:

(a)  begin when the action is taken under subsection (1); and

(b)  be no shorter than the minimum suspension period.”

[8] The object of Part 3-4 of the Act is to be found in s.480 of the Act which provides:

“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.”

[9] In Maritime Union of Australia v Fair Work Commission 3 a Full Court of the Federal Court made the following observations about Part 3–4 of the Act:

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

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

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

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

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

It is thus not surprising that the legislature has confined the category of persons who may be clothed with such powers to those persons who are “fit and proper”.” 4

[10] As I have observed previously, 5 it is not surprising that the legislature has determined (subject to limited exceptions) to compel the removal or suspension of such powers held by a permit holder who has contravened any of the prohibitions found in Division 4 of Part 3-4 of the Act, and has had a pecuniary penalty imposed on that person or another person by reason of the contravention.

Mr Hynes’ contravening conduct

[11] In ABCC v Hynes, Jarrett J set out the contravening conduct in which Mr Hynes had engaged on 23 August 2018 as follows:

“At approximately 8:00am on 23 August 2018, Blake Hynes arrived at a construction site that was part of a major road construction project covering an expanse of the Gateway Motorway between Compton Road and the Logan Motorway, Queensland. At the time, Mr Hynes was an employed organiser, official and officer of the Construction, Forestry, Mining and Energy Union.

He was also the holder of an entry permit issued by the Fair Work Commission under s.512 of the Fair Work Act 2009 (Cth) and a State Entry Permit issued under s.134 of the Work Health and Safety Act 2011 (Qld). When he entered the site he did so pursuant to Entry Notices issued pursuant to s.117 of the Work Health and Safety Act.

At approximately 8:30am on the same day Mr Hynes, in the company of some other people, entered a particular part of the site and when doing so, came into visual contact with Mr Steven James, the general manager of Enco Precast Pty Ltd. Enco Precast Pty Ltd was a subcontractor working on the project site. It manufactured pre-cast concrete products.

As Mr Hynes approached Mr James, he yelled towards Mr James words to the effect of:

As Mr James and the first respondent crossed paths, Mr Hynes said, in reference to a hammer that Mr James was carrying, words to the effect of:

Mr James continued towards the parking area and Mr Hynes said words to the effect of:

As Mr James continued to walk away from Mr Hynes, from a distance of 20 to 30 metres, Mr Hynes repeatedly shouted words to the effect of:

From a distance of approximately 50 to 60 meters, the first respondent yelled words to the effect of:

When he spoke the words I have set out above. Mr Hynes spoke in an aggressive manner. He was in a highly agitated state.” 6

[12] In considering the pecuniary penalty that should be imposed on Mr Hynes for his contravention of s.500 of the Act, and in fixing $4,400 as the appropriate amount for the penalty, his Honour said the following:

“The maximum penalty for a contravention of s.500 of the Fair Work Act is:

At the time of the contravening conduct, the value of a penalty unit was $210. Accordingly, the maximum penalty that might be imposed for each contravention by Mr Hynes is $12,600. The maximum penalty that might be imposed for each contravention by the CFMMEU is $63,000.

It is common ground that the CFMMEU is a highly experienced and skilled participant in the industrial arena. It is also common ground that Mr Hynes also held, and had experience in, representational roles within the CFMMEU, including as an organiser and official of the CFMMEU.

The conduct by Mr Hynes was unprovoked.

The applicant submits that by engaging in this contravening conduct, Mr Hynes:

Whilst I accept the first and second of those submissions, there is no evidence before me, and no agreement to the effect of the other matters. There is no basis for suggesting that Mr Hynes’s conduct caused disruption on the project or that Mr James was shocked, intimidated, annoyed, embarrassed or targeted.

Mr Hynes’s conduct occurred in the presence of employees of the head contractor on the site, CPB Contractors Pty Ltd. The words he used were objectively offensive. They were unprovoked and aggressive. The respondents do not plead that the Mr Hynes was provoked by Mr James or he was otherwise justified in making his offensive attack on Mr James. In their submissions the respondents suggest that there might have been reason for which Mr Hynes acted in the way that he did, but I reject those submissions. They are not supported by any evidence from the respondents consistent with the explanation proffered by the respondents.

Mr Hynes’s conduct was, I accept, antithetical to the rights of entry regime established under the Fair Work Act and was a gross abuse of the entitlements given to Mr Hynes by his entry permit. His conduct was plainly deliberate.

The principal object of pecuniary penalties under s.546 of the Fair Work Act is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 at [116].

A pecuniary penalty for a contravention of the Fair Work Act must be fixed with a view to ensuring that the penalty is not to be regarded by the offender or others as an acceptable cost of doing business. It is important to send a message that contraventions of the Act are serious and not acceptable: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 at [98]. Retribution, denunciation and rehabilitation have no part to play: Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 280 IR 28 at [19]. The amount of the penalty must, however, remain proportionate to the conduct concerned: The Non-Indemnification Personal Payment Case at [22].

Mr Hynes’s conduct, whilst offensive and aggressive was not prolonged. It did not result in any stoppages or delay to work. No physical aggression was involved. No tangible loss, physical or financial, was caused by his actions.

Although Mr Hynes has not had any penalties imposed upon him in the past for breaches of the Fair Work Act, in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737 Collier J found that Mr Hynes contravened s.500 of the Fair Work Act in the circumstances of that case. That application has been adjourned for the assessment of penalties.

It is relevant to take into account that Mr Hynes has not contested his liability under the Act for his action, although there has been no other tangible expression of regret, remorse or contrition.

In my view, a penalty of $4,400 is an appropriate response to the offending conduct by Mr Hynes. His offending is not towards the most serious class of case involving a breach of s.500 of the Fair Work Act. But deterrence is a significant consideration, particularly given his ongoing role with the CFMMEU. I have balanced these matters, along with the other matters referred to earlier in these reasons to reach my conclusion.” 7

[13] The seriousness of Mr Hynes’ contravening conduct, so far as it is relevant for the purposes of fixing a penalty, is reflected in His Honour’s observations and in the size of the penalty imposed on Mr Hynes relative to the maximum penalty that may be imposed for the contravention.

Exercise of power under s.510

[14] As a starting point, the happening of an event identified in ss.510(1)(a) to (f) of the Act since the date on which a relevant entry permit was issued to a permit holder, results in a suspension or revocation of the relevant permit or permits, except in the limited circumstances described in ss.510(2) or (3). Therefore, the purpose of the provision is to ensure that the licence to enter premises conferred by an entry permit will be suspended or revoked if the conduct of the permit holder results in the happening of one of more of the events in ss.510(1)(a) to (f). The relevant exception to that general consequence is satisfaction by the Commission that the suspension or revocation would be harsh or unreasonable in the circumstances.

[15] In Parker and others 8 Boulton J provided some guidance as to some of the circumstances to take into account in the exercise of discretion to not suspend or revoke a right of entry permit because the consequence of doing so would be harsh or unreasonable. Boulton J regarded the following matters as relevant:

•  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. 9 

[16] Although this is not an exhaustive list, I consider that these matters are relevant to the exercise of power under s.510 of the Act. It is accepted that the power of the Commission under ss.510(1) and 510(2) is to be informed, not by the need to punish a permit holder, but rather by the need to establish or maintain a balancing of rights and obligations between employees, registered organisations, occupiers of premises and employers. The power in s.510 is protective and corrective, not penal. It is not directed to punishing a permit holder, his or her organisation or ultimately the workers whose interests the permit holder might represent.

[17] The ABCC’s primary submission is that the Permit should be revoked with a ban period of at least 12 months, or in the alternative, suspended for 12 months with a ban period of 12 months. 10

[18] Mr Hynes and the CFMMEU did not submit that it would be harsh or unreasonable in the circumstances to suspend the Permit but submitted that the proposed revocation by the ABCC ignores the scheme of the Act. 11 Mr Hynes accepts that the suspension of the Permit and a period in which he is banned from applying for a new permit must follow given that he has been ordered to pay a pecuniary penalty under the Act.12 However, it was noted that the Commission’s jurisdiction is protective not punitive.13 Mr Hynes and the CFMMEU contend that the ABCC’s alternative submission of a suspension for 12 months ignores the intention of the Parliament as revealed by the minimum suspension periods outlined in s.510(4) and would mean that the Commission would be treating Mr Hynes as a second time offender under s.510(4)(b) rather than a first time offender under s.510(4)(a). Further, it is contended that no rationale is provided as to why a suspension period of 12 months is required.14

[19] Mr Hynes and the CFMMEU submit that a suspension of the minimum period is appropriate and the following matters are relevant to the question of any suspension, revocation or ban that the Commission might impose:

•  Mr Hynes was found to have acted in an improper manner and was not found to have intentionally hindered or obstructed any person. He entered in an otherwise lawful manner, there was no interference with work being performed and there was no loss or damage as a result of Mr Hynes’ contravening conduct;

•  whilst Mr Hynes’ conduct was “regrettable” there was a history between Mr Hynes and Mr James that informed the conduct that occurred and Mr Hynes was in a highly agitated state;

•  there was no evidence of any impact on Mr James by the conduct or any damage caused;

•  the conduct was isolated, constituted one relatively short verbal outburst, was not premeditated and there is no allegation or any similar conduct either before or after the event; and

•  Mr Hynes admitted the conduct and cooperated in the proceedings. 15

[20] I accept that these are relevant matters to be taken into account. The matters do not disclose any particular circumstance that would render suspension or revocation harsh or unreasonable, but are relevant to the issues whether the Permit should be suspended or revoked and the duration of any period of suspension, or in the case of a revocation, the length of any ban period that I might impose.

[21] The ABCC submits that as Mr Hynes and the CFMMEU made submissions in respect of the period of time of a suspension or ban that it is to be taken that they do not contend it would be harsh or unreasonable to suspend Mr Hynes’ permit in the circumstances of this matter. The ABCC further submits that there are no circumstances in this matter which would make it harsh or unreasonable to revoke or suspend the Permit. 16 The absence of any submissions by Mr Hynes and the CFMMEU regarding whether it would harsh or unreasonable to suspend the Permit and the acceptance that a suspension and ban must follow the contravention, weighs in favour of a finding that it would not be harsh or unreasonable to suspend or revoke the Permit.

[22] The ABCC says that it is appropriate to have regard to the gravity of the contravening conduct to achieve the statutory purpose “to protect the right of occupiers of premises and employer to go about their business without undue interference.” The ABCC describes Mr Hynes’ language as foul, profane and obscene and submits that the Commission must send a message that such language is unacceptable. Further, the ABCC says the conduct should be treated as conduct “involving a high level of gravity” which weighs in favour of revocation. 17 Mr Hynes and the CFMMEU say that this statement is not supported by the judgment or the quantum of the penalty imposed.18

[23] Mr Hynes and the CFMMEU did not file any submissions in relation to the impact that revocation or suspension might have on the organisation, its members and the permit holder. The ABCC says that in the context of Part 3-4 of the Act which requires a balancing of interests, the revocation of the Permit would perform the important public interest purpose of providing a general and specific deterrent and condemnation of unacceptable behaviour. 19

[24] Mr Hynes and the CFMMEU say that appropriate steps have been taken to avoid a recurrence of such conduct, evidenced by the completion of right of entry training completed on 15 November 2019 and an Anger Management Course completed on 18 November 2019. 20 The ABCC says that the training undertaken by Mr Hynes is reactive to the declarations made and the penalties imposed by the Court and there is no indication that the training was undertaken in serious recognition of the conduct engaged in.21

[25] I also regard as a relevant circumstance that the contravention occurred only a few months after Mr Hynes had commenced employment with the CFMMEU. I consider, in the circumstances of this case that the absence of character evidence is relevant to assessing whether suspension of revocation of the entry permit would be harsh or unreasonable. This matter weighs against such a conclusion.

[26] The ABCC contends that other relevant considerations in this matter are as follows: 22

•  that Mr Hynes has not demonstrated genuine remorse for the contravening conduct; and

•  other relevant findings of misconduct against Mr Hynes.

[27] Mr Hynes and the CFMMEU say that the Commission should place no weight on the absence of expressions of remorse and what is more important is the facts of what occurred and whether there has been repetition of the conduct. 23 Although Mr Hynes did admit to the conduct during mediation of the Court proceedings he did not give evidence before me nor was any submission made that he is remorseful, particularly following the completion of further training in relation to the rights and obligations of a permit holder. Jarrett J had also observed that there had been no “tangible expression of regret, remorse or contrition.”24 Absent any expression of remorse, I do not accept that merely undertaking such training militates against suspension or revocation.

[28] The ABCC notes that in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Case) (No 2) 25 Mr Hynes was found to have engaged in multiple contraventions of Part 3-4 of the Act in April 2018, a month before the conduct in this matter. The judgment in this matter is currently subject to an appeal to the Full Court. Further, the ABCC notes that Mr Hynes is a respondent in two proceedings brought by the ABCC for contraventions of Part 3-4 of the Act.26 Mr Hynes and the CFMMEU say that these matters should not be taken into account as there has been no penalty imposed in the Bruce Highway Case and there have been no admissions made in the other two proceedings.27

[29] I do not consider the contravention finding described above to be relevant in assessing whether suspension or revocation of the entry permit would be harsh or unreasonable, however it is relevant to my assessment whether the permit should be revoked rather than suspended. In the circumstances, particularly given the positions adopted by Mr Hynes and the CFMMEU, I do not consider that it would be harsh or unreasonable in the circumstances to suspend or revoke Mr Hynes’ entry permit. I consider that suspension would be consistent with the objects of Part 3-4 of the Act and the overall gravity and seriousness of the contravening conduct earlier described if considered on its own and taking into account the matters the CFMMEU earlier identified. However, that is not the end of the matter.

Revocation or suspension of the Permit

[30] As is clear, s.510(1) of the Act provides the Commission with the discretion to decide whether in a particular case revocation or suspension of an entry permit should occur. It seems to me that similar considerations to those, which arise on the question of whether suspension or revocation would be harsh or unreasonable in the circumstances, are appropriate considerations here. In addition, there is the consideration of the consequence of revocation compared with suspension. Revocation of an entry permit will require the organisation to later apply to the Commission for the issue of a permit and require satisfaction that the proposed permit older is a fit and proper person to hold a permit. On the other hand, suspension will usually result in the permit holder being able to immediately exercise rights pursuant to the permit once the suspension period has lapsed.

[31] The exception in s.510(3) of the Act is not applicable presently and as I have previously stated, I do not consider that a suspension or revocation would be harsh or unreasonable in the circumstances. I consider that the contravening conduct found in the Bruce Highway Case to be relevant in considering whether to revoke the permit instead of suspending it. Revocation, as already noted, will require a further application for an entry permit to be made. This process will enable an assessment of whether Mr Hynes is a fit and proper person to hold an entry permit. The contravening conduct can be taken into account in assessing Mr Hynes’ fitness and propriety at the time such an application is made. Suspending the permit will allow Mr Hynes to exercise entry rights after the suspension period has expired and until 9 March 2021. I consider in the context of the contravening conduct the subject of this proceeding and in which Mr Hynes was found to have engaged in the Bruce Highway Case make it more appropriate that the permit be revoked. These matters should be considered together in order to assess whether Mr Hayes should in the future be given licence to enter employer premises and to exercise the rights that attach to such licence.

[32] I consider that it is appropriate to fix a ban period that is not longer than the period of suspension in respect of a permit holder against whom action under s.510(1) of the Act has not previously been taken, namely 3 months.

[33] Taking into account all of the relevant circumstances as a whole, I am not persuaded that it would be harsh or unreasonable in the circumstances to revoke the entry permit held by Mr Hynes.

Conclusion

[34] For the reasons stated I consider that the Permit issued to Mr Hynes should be revoked and a ban period of 3 months should be fixed.

[35] Mr Hynes is reminded of his obligation under s.517(1)(a) of the Act to return the Permit that is revoked to the Commission within 7 days from the date of this decision.

Order

[36] I order:


DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR715785>

 1   RE2018/107

 2   [2019] FCCA 3145

 3   [2015] FCAFC 56

 4   Ibid at [13]-[16]

 5   Director of the Fair Work Building Industry Inspectorate v Perkovic [2015] FWC 4062

 6   [2019] FCCA 3145 at [2]-[10]

 7   Ibid at [15]-[28]

 8   [2011] FWA 2577

 9   Ibid at [26]-[28], [33] and [34]

 10   Submissions of the Australian Building and Construction Commissioner dated 4 December 2019 at [4]-[5], [66] and [71]

 11   Submissions of Mr Hynes and the CFMEU in reply dated 9 December 2019 at [2]

 12   Submissions of Mr Hynes and the CFMEU dated 19 November 2019 at [8]-[9]

 13   Ibid at [11] and [13]

 14   Submissions of Mr Hynes and the CFMEU in reply dated 9 December 2019 at [3] and [14]

 15   Submissions of Mr Hynes and the CFMEU dated 19 November 2019 at [22]-[26]

 16   Submissions of the Australian Building and Construction Commissioner dated 4 December 2019 at [20]-[21]

 17   Submissions of the Australian Building and Construction Commissioner dated 4 December 2019 at [24]-[28]

 18   Submissions of Mr Hynes and the CFMEU in reply dated 9 December 2019 at [7]

 19   Submissions of the Australian Building and Construction Commissioner dated 4 December 2019 at [29]-[31]

 20   Submissions of Mr Hynes and the CFMEU dated 19 November 2019 at [25]; Statement of Leanne Butkus dated 19 November 2019, Annexures LB1 and LB2

 21   Submissions of the Australian Building and Construction Commissioner dated 4 December 2019 at [33]

 22   Ibid at [23]

 23   Submissions of Mr Hynes and the CFMEU in reply dated 9 December 2019 at [10]

 24   [2019] FCCA 3145 at [27]

 25   [2019] FCA 1737

 26   Submissions of the Australian Building and Construction Commissioner dated 4 December 2019 at [60]-[61]; QUD785/2018; QUD656/2019

 27   Submissions of Mr Hynes and the CFMEU in reply dated 9 December 2019 at [11]-[12]