DECISION

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

In the matter of the Entry Permit of Savage, Desmond Taivairanga
(RE2021/932)

Revocation/suspension of entry permit of Desmond Taivairanga Savage.

[1] Desmond Taivairanga Savage is an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and a permit holder under the Fair Work Act 2009 (Cth) (FW Act). On 13 August 2021 in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) 1 the Federal Court of Australia (White J) declared that Mr Savage contravened s 500 of the FW Act at the Adelaide Airport Redevelopment Terminal 1 Expansion Project on James Schoefield Drive (Site) on 20 June 2019 while exercising rights in accordance with Part 3-4 of the FW Act by acting in an improper manner by repeatedly swearing at, and speaking in an aggressive and bullying manner towards, a Watpac Pty Ltd (Watpac) representative. The Court also declared that the CFMMEU contravened s 500 of the FW Act on 20 June 2019, pursuant to s 793 of the FW Act, by the conduct of Mr Savage described above.

[2] The Court ordered Mr Savage pay a pecuniary penalty of $4,500 in respect of his contravention of s 500 of the FW Act and ordered the CFMMEU pay a pecuniary penalty of $37,500 in respect of its contravention of s 500 by reason of Mr Savage’s conduct.

[3] Section 510(1) of the FW Act requires the Commission to revoke or suspend each entry permit held by a permit holder if it is satisfied that, inter alia, since the first of any operative permit was issued, the permit holder or another person was ordered to pay a pecuniary penalty under the FW Act in relation to a contravention of Part 3-4 of the FW Act by the permit holder. The penalty imposed on Mr Savage was for a contravention of s 500 which is found in Part 3-4. The penalty imposed on the CFMMEU was also for a contravention of s 500 and relevantly constituted by Mr Savage’s contravening conduct. The power in s 510(1) is therefore engaged. Consequently, this proceeding is commenced on the Commission’s initiative to consider what action, if any, should be taken under s 510(1) of the FW Act in relation to an entry permit currently held by Mr Savage. None of this is controversial.

[4] As the proceeding 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 26 August 2021 that he intervenes in the proceeding pursuant to s 110 of that Act. The CFMMEU, Mr Savage and the Commissioner filed submissions and other materials in the proceeding and agree that the proceeding can be determined on the papers without an oral hearing. I consider that this is an appropriate course in the circumstances.

[5] As already noted, the Court ordered Mr Savage and the CFMMEU to each pay a pecuniary penalty because Mr Savage contravened s 500 of the FW Act. The section provides that a person “must not intentionally hinder or obstruct any person, or otherwise act in an improper manner” while exercising, or seeking to exercise, rights as a permit holder in accordance with Part 3-4.

[6] Section 510 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

(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.

[7] Sections 500 and 510 of the FW Act are part of a right of entry scheme established by Part 3-4 of the FW Act. 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.

[8] In Maritime Union of Australia v Fair Work Commission 2 a Full Court of the Federal Court made the following observations about Part 3-4 of the FW Act:

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

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

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

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

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”. 3

[9] As is evident from the terms of s 510 of the FW Act the occurrence of an event identified in ss 510(1)(a) to (f) since the date on which the first of any entry permits held by a permit holder was issued, results in a suspension or revocation of the relevant permit or permits, unless s 510(1) does not apply by reason of s 510(3) or the Commission exercises a discretion under s 510(2) not to suspend or revoke an entry permit because of the happening of an event in s 510(1)(d) or (f) once it is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.

[10] The exercise of the Commission’s powers and functions under ss 510(1) and 510(2) is to be informed, not by the need to punish a permit holder, but rather by the need to establish or maintain a balancing of rights and obligations between employees, registered organisations, occupiers of premises and employers. The power in s 510 is protective and corrective, not penal. 4 In deciding whether a suspension or revocation of an entry permit would be harsh or unreasonable; whether to revoke rather than suspend an entry permit; and the duration of any suspension and/or ban period, it will be relevant to have regard to the extent to which the Commission can have confidence that the permit holder would exercise her or his rights as a permit holder under the FW Act in a manner which achieves the necessary balance between the rights mentioned in s 480 of the FW Act.5

[11] Other matters that are relevant in assessing whether suspension or revocation of an entry permit under s.510(1) would be harsh or unreasonable in the circumstances include the objects of Part 3-4; the nature and gravity of the underlying contravention of Part 3-4; the impact that the revocation or suspension of the entry permit/s might have on the organisation, its members and the permit holder; whether training has been undertaken by the entry permit holder since the events; and general character evidence. 6 None of this is controversial.

[12] The CFMMEU and Mr Savage contend that no protective and corrective purpose will, in the circumstances, be served by imposition of a suspension or revocation and that suspension or revocation of Mr Savage’s permit would be harsh or unreasonable having regard to the following circumstances:

[13] First, the fact that the contravening conduct occurred over 2 years ago at a time when Mr Savage was a relatively inexperienced and junior official. 7 Second, the contravening conduct was not at the upper end of the spectrum of seriousness for contraventions of s 500 of the FW Act.8 Third, the effluxion of time since the contravening conduct and that there has been no repeat of the conduct suggests that the contravening conduct should be regarded as an aberration.9 Fourth, Mr Savage regrets his contravening; he is determined not to contravene Part 3−4 of the FW Act again; he is committed to complying with his responsibilities as a permit holder and has matured as an official.10 Fifth, Mr Savage has undertaken training and that during the training he has acknowledged and understood that he was not to conduct in an improper manner in the future.11 Sixth, any suspension or revocation will impede the ability of the South Australian Branch to service the needs of its members, including in relation to health and safety issues.12

[14] I deal with these circumstances and whether alone or in combination they would render suspension or revocation of Mr Savage’s entry permit harsh or unreasonable below.

[15] First, neither the passage of time nor Mr Savage’s relative inexperience as an official at the time of the contravening conduct in the present circumstances are matters which weigh towards a conclusion that suspension or revocation of his permit would be harsh or unreasonable. The very nature of the circumstance in s 510(1)(d) which triggers the power to suspend or revoke an entry permit results in the passage of some time between the contravening conduct and the imposition of a penalty. The process of investigating allegations of contravening conduct and litigating means that some time will invariably pass before a penalty is imposed for proven or admitted contravening conduct. There is no suggestion of any unreasonable or unwarranted delay in commencing or conducting the proceeding which resulted in the imposition of penalties. As to Mr Savage’s inexperience, before being issued with an entry permit Mr Savage will have received appropriate training as to his rights and obligations as a permit holder. The training will have alerted him to the fact that in exercising rights as a permit holder he was not permitted to act in an improper manner. As White J observed, even making allowance for the fact that a degree of coarse language occurs on construction sites, the language employed by Mr Savage and the sentiments it conveyed, went well beyond coarseness – the language had a belittling, denigratory and bullying tenor and was a form of abuse. 13 Even an inexperienced union official should know that conduct towards another person amounting to abuse has no place in a workplace. All the more so as Mr Savage was on Site making proper enquiries in relation to safety matters. His conduct was itself a risk to the health and safety of the person to whom the abuse was directed. I also note that the judgment in the Adelaide Airport Case does not record that “a relatively inexperienced official” submission was put to the Court as a mitigating factor in the assessment of the penalty to be imposed for Mr Savage’s contravening conduct.

[16] Second, Mr Savage and the CFMMEU do not suggest that Mr Savage’s contravening conduct on 20 June 2019 was not serious. Rather they suggest the conduct was not at the upper end of the spectrum of seriousness for contraventions of s 500 having regard to the quantum of the penalty imposed on Mr Savage, that no economic loss or adverse consequence was caused by the conduct, the conduct was a manifestation of annoyance at action taken by Watpac to address a safety issue and was therefore not premeditated or systematic, and but for the contravening conduct Mr Savage otherwise behaved appropriately and cooperatively whilst on site. 14 Save for the contention as to no economic loss or adverse consequence, the other matters were assessed by White J in fixing a penalty that was imposed on Mr Savage for his contravening conduct. That conduct had a “belittling, denigratory and bullying tenor”, it was “a form of abuse” and “was entirely inappropriate”. Conduct of this kind is serious conduct in any workplace, much more so that it is engaged in by a permit holder exercising entry rights in a workplace. Although White J made no finding that the conduct had a negative impact on any person, it cannot seriously be suggested that the conduct did not have the effect of exposing the person to whom the conduct was directed to a risk to their health and safety. The form of abuse in which Mr Savage engaged plainly exposed persons to whom the abuse was directed to a health and safety risk. The contravening conduct was serious. Consequently, this circumstance does not tend to favour a conclusion that revocation or suspension would be harsh or unreasonable.

[17] Third, the contention that there has not been a repeat of the contravening conduct is not contested but to assess this circumstance properly it needs to be considered together with the other circumstances of Mr Savage’s statement of regret and his determination not to engage in contravening conduct again and the training that he has received. Mr Savage prepared and filed a statement. He was not required for cross-examination and the Commissioner agreed that the matter can properly be determined on the papers without a hearing. Mr Savage’s evidence is therefore not contested. His evidence is an important consideration in assessing whether suspension of his permit would be harsh or unreasonable in the circumstances.

[18] Mr Savage gave the following evidence:

•  His “conduct towards Mr Kamminga” on 20 June 2019 “was unacceptable”; 15

•  He regrets the language he used and his behaviour; 16

•  Although he was frustrated, the way he behaved on 20 June 2019 was “both unacceptable and in no way a proper or effective way to deal with the issue”; 17

•  Since engaging in the contravening conduct:

•  he has become much more experienced and if confronted with a dispute about work health and safety issues, he will try to discuss the issues calmly with the builder and convince the builder to rectify the issue; 18

•  he has exercised entry rights on almost a daily basis and he would not handle any situation where there is a dispute or disagreement with a builder in the way in which he handled the dispute on 20 June 2019; 19

•  he has learned from the experience of the court proceedings and more generally of the importance of not acting improperly; 20

•  he has undertaken training on 6 September 2021 which was directed to his conduct the subject of the contravening conduct, he understands why that conduct was improper and found the training to be both helpful and of assistance to him in ensuring that he will comply with his obligations as a permit holder; 21

•  he is committed to ensuring that he complies with his obligations as a permit holder; 22 and

•  he gives an assurance to the Commission that he will not act as he did on 20 June 2019 again. 23

[19] I accept Mr Savage’s evidence. I accept that he is genuine both in his regret or contrition and in his determination of future conduct underpinned by the assurance he has given to the Commission.

[20] Mr Brian Lacey AO, a former Presidential Member of the Australian Industrial Relations Commission conducted training with Mr Savage and gave evidence about it in a report about the training. 24 Mr Lacy was not required for cross-examination and so his evidence was not contested. The training was directed not only to the rights and obligations of a permit holder under the FW Act but also to the contravening conduct in which Mr Savage engaged for which penalties were imposed in the Adelaide Airport Case. Relevantly, Mr Lacy gave evidence that:

15. Mr Savage acknowledged and understood he must not conduct himself in any way that would be regarded as acting in an improper manner. I am satisfied Mr Savage understands the concept of acting in an improper manner.

16. I discussed with Mr Savage strategies to ensure he does not contravene section 500 of the FW Act. In particular he said he understands that he cannot be abusive or use insulting language or be insulting to persons with whom he engages on a work site. He said also understands that what he says and the way he says it may be construed as acting in an improper manner. He indicated that he will manage his emotions and not be provoked by the words or conduct of others with whom he engages on worksites. He said he will be respectful in his dealings with people on worksites in future.

17. Mr Savage was receptive to the information and direction that was given during the training periods. He participated positively and appeared to have given prior consideration to the contraventions he has admitted in proceeding SAD 60/2020. He engaged openly in discussions and demonstrated that he well understood why his conduct was regarded as a contravention of s 500 of the FW Act.

18. Based on the training provided to Mr Savage, his participation and commitment to comply with the legislation hereunder consideration, I am satisfied he will take steps to ensure he does not contravene s 500 of the FW Act and to avoid situations which may cause him to react in an improper manner. 25

[21] I accept Mr Lacy’s evidence.

[22] The Commissioner seeks to downplay the import of the training provided by Mr Lacy because it can hardly be said to have been transformative in the present circumstances. 26 The Commissioner says that it should be self-evident that abusive or insulting language at a workplace is improper conduct and Mr Savage’s concerns about how his conduct may be “construed” and that he should not let himself “be provoked” as evident in [16] of the above extract is indicative of Mr Savage not truly embracing his wrongdoing and implies that part of the blame for his conduct should be shifted to others.27 I do not accept this analysis for two reasons. First, the proposition that Mr Savage has not truly embraced his wrongdoing and that he may be seeking to shift the blame for his conduct to others are matters that ought properly to have been put to Mr Savage during cross examination. Instead, the Commissioner declined the opportunity to cross-examine. Second, there is no suggestion in Mr Savage’s evidence that he is seeking to shift the blame to others or that he has not embraced his wrongdoing. As his evidence summarised above discloses, Mr Savage has expressed regret for his inappropriate conduct, he accepts the circumstances in which the conduct occurred did not excuse his behaviour, he has learned from his experience in court, he is committed to not engaging in any further contravening conduct and he has given assurance that he will not engage in such conduct again. Moreover, that Mr Savage accepts full responsibility for his conduct is evident in his statement acknowledging the fact that he may have his permit suspended or revoked is “my own fault as a result of my improper conduct”.28

[23] The absence of contrition is not an ‘aggravating’ factor in considering matters under s 510 but it is a relevant factor. As Deputy President Colman observed in Paul Taylor 29 (with which I concur):

“. . . A person who has expressed remorse for a contravention can more persuasively assert that there will be no recurrence of the relevant conduct. The contrite person wishes that the contravention had not occurred, for reasons of conscience or other matters related to their own personal value system. Remorse is a powerful motivator that may weigh in favour of a conclusion that further contraventions are unlikely.” 30

[24] An expression of remorse is also relevant when the permit holder contends that suspension or revocation of an entry permit would be harsh or unreasonable in the circumstances. An expression of remorse for contravening conduct leading to a triggering event would be part of the circumstances in which the consideration is undertaken.

[25] There can hardly be a clearer expression of transformation than that contained in Mr Savage’s statement.

[26] Taken together the fact that there have been no further instances of contravening conduct involving Mr Savage, that he has received relevant and specific training and that he has given candid evidence expressing not only remorse but a determination and indeed assurance to the Commission, not to again engage in contravening conduct as a permit holder, are in my view powerful matters that way in favour of a conclusion that suspending or revoking Mr Savage’s entry permit would be harsh or unreasonable in the circumstances.

[27] Fourth, apart from Mr Savage’s statement that suspending or revoking his permit would impede his capacity to enter sites and represent members and the ability to service members would be made more difficult because of the small number or permit holders employed by the South Australian Branch, there is little by way of probative evidence about how precisely and to what degree the CFMMEU, or its members, would be negatively impacted. The sum of the evidence is that there might be some inconvenience, which it must be said, and which Mr Savage has acknowledged, would be self-inflicted. As I have previously observed the CFMMEU is a well-resourced organisation with an existing capacity to ameliorate the inconvenience that will follow, for example, by deploying other permit holders of the organisation to construction sites usually serviced Mr Savage. There is nothing to suggest that this could not occur. I therefore do not consider that this matter weighs in favour of a conclusion that suspension or revocation would be harsh or unreasonable.

[28] Section 510(2) provides that the Commission is not required to suspend or revoke an entry permit in the context of a triggering event of the kind at issue here if it is satisfied that revocation or suspension would be harsh or unreasonable in the circumstances. In this context and without setting out an exhaustive list, it seems to me that an assessment whether revocation or suspension would be harsh requires a consideration whether the action would be disproportionate to the gravity of the triggering event, or harsh in the sense of its impact on the circumstances of the permit, his or her organisation or members of that organisation. An assessment whether action taken would be unreasonable is more likely concerned with assessing whether the action is not reasonable or rational, or is excessive, immoderate or exorbitant in the circumstances. All this is to be considered in light of the objects of Part 3-4 of the FW Act and the protective and corrective purpose underpinning the exercise of power under s 510(1). The Commission’s function under s 510 (1) is not punitive, whether in respect of the permit holder or the organisation of which the permit holder is an official. The triggering event at issue here is the order that Mr Savage and the CFMMEU pay a pecuniary penalty in respect of Mr Savage’s contravention of s 500 of the FW Act. Thus, the Court has already imposed a punitive sanction. The function under s 510(1) consistent with the object of Part 3-4, is thus understood to be protective and corrective in nature. 31

[29] Taking account of the considerations discussed and noting that they do not weigh in the same direction, I am persuaded that the combination of matters related to Mr Savage’s subsequent conduct, his acceptance of wrongdoing and his contrition, the training undertaken and his desire and assurance to do better, which weigh in his favour outweigh matters going the other way. I am also satisfied the risk of Mr Savage engaging in contravening conduct as a permit holder again is very low and that both his contrition and his assurance to the Commission is genuine. I agree with the contentions of the CFMMEU and Mr Savage, that no protective and corrective purpose will, in the circumstances, be served by a suspension or revocation of his entry permit. In such circumstances this is quintessentially a case where suspension or revocation would not be reasonable or rational because of the absence of any protective and corrective purpose. Instead, a suspension or revocation of Mr Savage’s entry permit in the present circumstances would be punitive. I am therefore satisfied that suspension or revocation would be unreasonable in the circumstances.

[30] Consequently, I am not required, and for the reasons stated do not propose to take any action under s 510(1) of the FWC in relation to Mr Savage’s entry permit.

[31] I have taken Mr Savage’s evidence as genuine and at face value. Mr Savage will or should be acutely aware that if he engages in contravening conduct as a permit holder in the future, the well from which he drank in this proceeding by expressing contrition and giving an assurance, is one that on a return visit will likely have run dry.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR735208>

 1   [2021] FCA 951

 2   [2015] FCAFC 56, 230 FCR 15, 321 ALR 248

 3   Ibid at [13]-[16]

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

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

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

 7   Mr Savage’s submissions dated 20 September 2021 at [21]

 8   Ibid at [22]

 9   Ibid at [23]

 10   Ibid at [24]

 11   Ibid at [25]

 12   Ibid at [26]

 13   Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 at [197]

 14   Mr Savage’s submissions dated 20 September 2021 at [22]

 15   Witness statement of Desmond Taivairanga Savage dated 20 September 2021 at [20]

 16   Ibid

 17   Ibid at [21]

 18   Ibid at [23]

 19   Ibid at [24] – [25]

 20   Ibid at [25]

 21   Ibid at [26]

 22   Ibid at [27]

 23   Ibid

 24   Report on Training of Desmond Savage dated 17 September 2021

 25   Ibid at [15]-[18]

 26   The Commissioner’s submissions dated 6 October 2021 at [36]

 27   Ibid at [36]

 28   Witness statement of Desmond Taivairanga Savage dated 20 September 2021 at [29]

 29   [2021] FWC 431

 30   Ibid at [31]

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