PN1

THE DEPUTY PRESIDENT: Good morning. Mr Boncardo, you're seeking permission to appear for the permit holder and the CFMEU?

PN2

MR P BONCARDO: I am, Deputy President. I understand, or at least I'm reliably informed, that permission has been granted. If it hasn't, I seek permission under section 596(2)(a).

PN3

THE DEPUTY PRESIDENT: In any case, both of you seek permission.

PN4

MR BONCARDO: Yes.

PN5

THE DEPUTY PRESIDENT: It's not opposed. It will be granted.

PN6

MR BONCARDO: If the Commission please, thank you.

PN7

THE DEPUTY PRESIDENT: Mr Garozzo, you appear for the Commissioner?

MR GAROZZO OFF MICROPHONE [10.08 AM]

PN8

MR M GAROZZO: I am, Deputy President.

PN9

THE DEPUTY PRESIDENT: Yes, good morning.

PN10

MR GAROZZO: I'm instructed by Mr Ben Vallence from the Commissioner.

PN11

THE DEPUTY PRESIDENT: Yes. Yes, Mr Boncardo.

PN12

MR BONCARDO: Thank you, Deputy President. You have had the benefit of relatively extensive submissions by the parties. I understand Mr Simpson is required for cross‑examination. Unless you have any questions of me, I propose to call Mr Simpson rather than say anything by way of supplementary opening.

PN13

THE DEPUTY PRESIDENT: Yes. Thank you. Call Mr Simpson.

PN14

THE ASSOCIATE: Could you state your full name and address.

PN15

MR SIMPSON: James John William Simpson, (address supplied).

<JAMES JOHN WILLIAM SIMPSON, SWORN [10.09 AM]

EXAMINATION-IN-CHIEF BY MR BONCARDO [10.09 AM]

PN16

MR BONCARDO: Your name is James John William Simpson?‑‑‑Correct.

PN17

You are employed by the Victoria‑Tasmania branch of the CFMMEU Construction and General Division?‑‑‑That's correct.

PN18

I understand that whilst you are employed by the branch your working arrangements have changed recently. Can you tell the Commission what has occurred?‑‑‑That's correct. I'm on a - I'm going to stuff this word up. I apologise - secondment to Christy Cain in the national office of the CFMMEU.

PN19

Thank you, sir. Now, Mr Simpson, you have made two statements in these proceedings, the first of which is dated 20 May 2022. You have a copy of that with you?‑‑‑I do.

PN20

Now, that statement is some 36 paragraphs in length. Can I take you to the first sentence of paragraph 35, which is on the final page?‑‑‑Yes.

PN21

You will see that that sentence reads, 'The events of 29 and 20 April 2017.' Should that second number be '30' rather than '20'?‑‑‑That's correct. It should be '30'.

PN22

Thank you. Now, with that amendment, Mr Simpson, is that statement true and correct to the best of your knowledge and belief?‑‑‑It is.

PN23

I tender Mr Simpson's 20 May statement, Deputy President.

PN24

THE DEPUTY PRESIDENT: Any objection to the tender?

PN25

MR GAROZZO: No, thank you.

*** JAMES JOHN WILLIAM SIMPSON XN MR BONCARDO

PN26

THE DEPUTY PRESIDENT: I will mark the witness statement of James John William Simpson, dated 20 May 2022 and comprising of 36 paragraphs, as exhibit 1.

EXHIBIT #1 WITNESS STATEMENT OF JAMES JOHN WILLIAM SIMPSON DATED 20/05/2022

PN27

MR BONCARDO: You have also made a further statement, Mr Simpson, dated 23 June. Do you have a copy of that with you?‑‑‑Yes, I do.

PN28

That is a statement of some seven paragraphs and a number of annexures - or attachments, I should say. I think there are three attachments to it. Is that statement true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.

PN29

Thank you. I seek to tender Mr Simpson's 23 June statement, Deputy President.

PN30

THE DEPUTY PRESIDENT: No objection to the tender?

PN31

MR GAROZZO: No, thank you.

PN32

THE DEPUTY PRESIDENT: I'll mark the further witness statement of James John William Simpson, dated 23 June 2022, comprising seven paragraphs and the annexures thereto, as exhibit 2.

EXHIBIT #2 WITNESS STATEMENT OF JAMES JOHN WILLIAM SIMPSON DATED 23/06/2022 PLUS ATTACHMENTS

PN33

MR BONCARDO: That is the examination‑in‑chief, Deputy President. Thank you.

CROSS-EXAMINATION BY MR GAROZZO [10.12 AM]

PN34

MR GAROZZO: Mr Simpson, how old are you, if you don't mind my asking?‑‑‑I'm 33.

PN35

You've been in the workforce for about 18 years or so?‑‑‑Yes, since I was 15.

PN36

Always in building and construction?‑‑‑Prior to that I worked for Big W and Bunnings.

PN37

You joined the CFMMEU in 2011?‑‑‑Correct.

*** JAMES JOHN WILLIAM SIMPSON XXN MR GAROZZO

PN38

You were first granted an entry permit under the Fair Work Act in 2017?‑‑‑That's correct.

PN39

You were also granted an entry permit under the Occupational Health and Safety Act Victoria at about the same time?‑‑‑Yes.

PN40

That was roughly two months prior to the contravening conduct (indistinct) on 29 and 30 April 2017?‑‑‑That's correct.

PN41

Did you receive training at that time in relation to your rights and responsibilities as a permit holder prior to being issued with the entry permit?‑‑‑That's correct.

PN42

You would have completed a statutory declaration at that time - that is, when your application was made for your entry permit to be issued - to say that you had performed that training?‑‑‑That's correct.

PN43

THE DEPUTY PRESIDENT: I think technically they're just described as - - -

PN44

MR GAROZZO: Declarations.

PN45

THE DEPUTY PRESIDENT: - - - declarations rather than statutory declarations.

PN46

MR GAROZZO: Thank you.

PN47

Who provided that training?‑‑‑The training was done for my ARREO permit through Trades Hall. Exactly who, I apologise, I could not tell you. I can't remember.

PN48

THE DEPUTY PRESIDENT: That is the occupational health and safety check, the ARREO training?‑‑‑I apologise, Deputy President, I'm pretty sure it was both done through Trades Hall; the ARREO training and the right of entry training.

PN49

I see.

PN50

MR GAROZZO: I assume that the content of that training involved - that is, the ARREO training, the right of entry training - involved all matters related to being a (indistinct)?‑‑‑It did.

*** JAMES JOHN WILLIAM SIMPSON XXN MR GAROZZO

PN51

Including the circumstances in which you could exercise right of entry?‑‑‑It did.

PN52

What were you required to do prior to and at the time of exercising your right of entry?‑‑‑That's correct.

PN53

That you were obliged to follow reasonable requests to comply with OHS requirements at a site when exercising your right of entry?‑‑‑That's correct.

PN54

That you should familiarise yourself with the OHS requirements that apply at a site before attending to exercise right of entry?‑‑‑That's correct.

PN55

That you were obliged to not conduct yourself improperly when exercising a right of entry?‑‑‑That's correct.

PN56

Balancing rights between a permit holder and an occupier of a site into the right of entry scheme?‑‑‑I couldn't recall something like that, I apologise.

PN57

You would have been advised in any event that in the event that there were queries or concerns that arose for you in relation to the exercise of a particular right of entry (indistinct) you should (indistinct) you could have done?‑‑‑I could. That's right.

PN58

It was thorough training?‑‑‑I wouldn't say it was thorough.

PN59

Okay. Did it go through the matters that I've just described?‑‑‑In great detail?

PN60

In a substantial amount of detail?‑‑‑Nowhere near as the training I received off Mr Lacy.

PN61

So would you say then that at the time you applied for your entry permit you weren't clear what your obligations were?‑‑‑That's correct.

PN62

You weren't clear?‑‑‑Not a hundred per cent.

PN63

That was in relation to the entry permit that was issued in 2017. Your current entry permit I imagine was issued, what, in 2020?‑‑‑Off the top of my head I couldn't tell you. I'm nearly three years, so, yes, it would be 2020.

*** JAMES JOHN WILLIAM SIMPSON XXN MR GAROZZO

PN64

The same process would have applied where you had to sign a declaration that said that you had undergone training in relation to the entry permit?‑‑‑I understood my obligations. I couldn't recall, but I would have had to sign a declaration of some sorts.

PN65

Yes, I think you said you would have done training again?‑‑‑No, we didn't.

PN66

You didn't do more training?‑‑‑Well, with Mr Lacy after this I done training, but not in regards to another re‑sit with Trades Hall. Not to my knowledge.

PN67

THE DEPUTY PRESIDENT: Mr Simpson, do you recall undertaking an online training?‑‑‑After Mr Lacy, Deputy President?

PN68

No, at or about the time before you applied for your 2020 permit?‑‑‑In all honesty I couldn't recall. Apologies.

PN69

MR GAROZZO: Well, if I was to suggest to you that in order to apply for renewal of your entry permit you would have had to have a signed declaration to inform the Commission that you had received training in relation to right of entry permits - - -

PN70

MR BONCARDO: I object to that question. That is not quite the effect of section 513(1)(a) of the Act. If the question could perhaps be rephrased rather than it being put as a proposition that it's a condition precedent to making application for an entry permit (indistinct) done new training or training approximate to the application being made. I think, Deputy President, there was a - - -

PN71

THE DEPUTY PRESIDENT: I understand the point.

PN72

MR BONCARDO: Yes.

PN73

THE DEPUTY PRESIDENT: We can bring up the 2020 application if you like.

PN74

MR BONCARDO: If it could be, yes.

PN75

MR GAROZZO: May I ask you to turn, Mr Simpson, to page 6 of this document?‑‑‑Yes.

*** JAMES JOHN WILLIAM SIMPSON XXN MR GAROZZO

PN76

You will note that it's a form F42 application for an entry permit filed by the CFMMEU?‑‑‑Yes.

PN77

Seeking the issuance of an entry permit for you. You see about halfway down the page you declare that:

PN78

I have received appropriate training about the rights and responsibilities of an entry permit holder.

PN79

?‑‑‑Yes.

PN80

Then you specify the training and that it was online, completed (indistinct) December 2019 and then on page 7 of 7 there is your signature and - - -?‑‑‑Yes.

PN81

- - - the date that you signed it, then the final page of the document is your certificate of completion. Does that jog your memory - - -?‑‑‑Yes, it does, apologies. I remember sitting down with India in her office doing this. It took about an hour, I think, I can remember off the top of my head.

PN82

The civil penalty proceeding brought by the Australian Building and Construction Commissioner against the CFMMEU and yourself was filed in April 2018, wasn't it? You might not recall, but is that right? Does that sound about right?‑‑‑Yes.

PN83

It was. Then it resolved in 2021. That is, the first instance decision (indistinct) late 2020. December 2020 for the liability hearing and then at some point in 2021 (indistinct) penalty?‑‑‑From Snaden J?

PN84

Sanden J?‑‑‑Yes.

PN85

Then there was the court proceeding. It's a bit curious, isn't it, that you don't seem to recall doing a right of entry training in December 2019 in circumstances where you had had a proceeding - you were subject to a proceeding alleging civil penalties against you - sorry, civil penalty contraventions against you in respect of your obligations as a right of entry permit holder. I suggest to you that that is the sort of thing that if you were taking it seriously you would remember?‑‑‑The training?

PN86

Yes?‑‑‑I do remember the training from Mr Lacy. I apologise that the online training didn't - - -

*** JAMES JOHN WILLIAM SIMPSON XXN MR GAROZZO

PN87

I'm talking about the online - - -?‑‑‑The online training?

PN88

Yes?‑‑‑No.

PN89

It slipped your mind?‑‑‑Yes.

PN90

But you recall it now?‑‑‑Yes.

PN91

Do you recall that it dealt with the same sort of matters that we spoke about a moment ago in relation to the 2017 training? That is, your obligations, what you should and shouldn't do sort of thing?‑‑‑Yes.

PN92

Can I take you to your 20 May 2020 statement, which is exhibit 1. I think you've got a copy there?‑‑‑Yes.

PN93

In paragraph 23. In this part of your - - -?‑‑‑Paragraph 23?

PN94

Yes. In this part of your statement you're talking about that proceeding before Snaden J, right?‑‑‑Yes.

PN95

This is dealing with the allegations that we were just speaking about that the ABC Commissioner made against you that you had contravened sections 499 and 500 of the Fair Work Act?‑‑‑Yes.

PN96

You disputed those allegations, didn't you?‑‑‑I did.

PN97

That's what you're talking about here in paragraph 23?‑‑‑That's correct.

PN98

Because you didn't think at that time that you had done anything wrong?‑‑‑That's correct, at that time I didn't.

PN99

You thought your conduct was consistent with your obligations as a permit holder under the Fair Work Act?‑‑‑That's correct.

PN100

In paragraph 24 you talk about Snaden J's liability judgment on 2 December 2020?‑‑‑Mm-hm.

*** JAMES JOHN WILLIAM SIMPSON XXN MR GAROZZO

PN101

You see that?‑‑‑Yes.

PN102

Over onto the next page, paragraph 26, you give evidence that after that judgment the CFMMEU arranged for you to attend the training with Mr Lacy?‑‑‑That's right.

PN103

Which you undertook on 18 January 2021?‑‑‑That's correct.

PN104

Did you, can I ask, seek out that training or after the liability judgment did somebody from the CFMMEU come to you and say you should do this training?‑‑‑Someone from the CFMEU came and said I should do this training.

PN105

In paragraph 27 you set out the content of the training and what you and Mr Lacy spoke about, so he took you through the requirements of the two sections that you had contravened?‑‑‑That's correct.

PN106

You discussed the findings of Snaden J and you discussed the requirement to comply with the Commission's (indistinct) including the relevant sections?‑‑‑(No audible reply)

PN107

In paragraph 28 you then state:

PN108

As a result of the training with Mr Lacy, I understood the reasons why my conduct contravened sections 499 and 500.

PN109

?‑‑‑That's correct.

PN110

That's the first time you're saying that you probably understood that conduct had been alleged against you and ultimately found proven; it was a contravention of the Fair Work Act?‑‑‑That's correct.

PN111

In 29, you talk about discussing strategies with Mr Lacy to ensure that you didn't contravene sections 499 and 500 in the future?‑‑‑Mm-hm.

*** JAMES JOHN WILLIAM SIMPSON XXN MR GAROZZO

PN112

Complying with the requirements of occupiers relating to work health and safety that are reasonable; that's section 499 we spoke about a moment ago. Making yourself aware of certain site based work health and safety policies; being civil and respectful when dealing with occupiers and employers; not reacting to occupying (indistinct) provocations. That's a requirement that you conduct yourself not in a manner that's a problem, but - - -?‑‑‑That's correct.

PN113

Finally, seeking guidance from CFMEU legal and industrial officers when challenged without exercising entry rights. Those are broadly the same topics that you agreed with me a moment ago were covered in the 2017 training?‑‑‑Not to the extent of Mr Lacy's training.

PN114

But the same topics that were covered?‑‑‑Yes.

PN115

I take your point about what you say about the extent. I'm just talking about the topics that were covered with (indistinct)?‑‑‑That's correct.

PN116

Then we spoke about the 2019 training and you agreed that the content was roughly the same as you got in 2017?‑‑‑That's correct.

PN117

Yet the training that you did in 2019 occurred right in the middle of this civil penalty proceeding that had been brought against you by the ABCC didn't cause you to reflect on whether or not the conduct that you had been accused of contravened the Fair Work Act?‑‑‑I'm going to get my dates confused, I apologise. I realised after Snaden J brought it down on me that I was wrong.

PN118

Yes. I'm talking about roughly a year before that when you did the training. Snaden J's decision comes down in December 2020?‑‑‑Okay.

PN119

You did the training in December 2019, about almost a year and a half after the proceeding had been commenced against you, including a statement that claimed that significant details set out what your conduct - - -?‑‑‑That's the online training we're talking about?

PN120

Yes?‑‑‑Yes. Sorry, yes.

PN121

The online training. It didn't cause you to reconsider whether or not what had been - the conduct you had engaged in on 29 and 30 April 2017 was in some way improper?‑‑‑No, I didn't - - -

*** JAMES JOHN WILLIAM SIMPSON XXN MR GAROZZO

PN122

MR BONCARDO: I object to the question. The judgment was reserved at this time. Whether Mr Simpson thought one way or another that his conduct was or was not improper really doesn't assist you, with respect, Deputy President, in the task at hand, which is to assess presently whether there is any corrective or protective purpose to be served by a suspension or revocation of Mr Simpson's permit.

PN123

THE DEPUTY PRESIDENT: Mr Garozzo?

PN124

MR GAROZZO: I disagree. Mr Simpson has given evidence that the first time that it occurred to him that his conduct contravened the Fair Work Act was when he spoke to Mr Lacy about it in January 2021 after Snaden J's decision had been handed down. He had the opportunity to speak to (indistinct) I think I am entitled to ask questions about why that didn't occur to him.

PN125

THE DEPUTY PRESIDENT: Yes, I will allow the question. Go ahead. You might want to repeat the question.

PN126

MR GAROZZO: It didn't occur to you in December 2019 after the civil penalty proceeding was (indistinct) the training you did about your rights and obligations as a right of entry permit holder did not cause you to reflect upon whether or not (indistinct) on 29 February 2017 was in contravention of the Fair Work Act; is that right?‑‑‑I apologise, I need to get my dates correct. Snaden J's findings were on the - so many dates. I apologise. I realised that I was incorrect after Snaden J's findings came down.

PN127

I appreciate that?‑‑‑If this training was prior to Snaden J's findings - - -

PN128

You hadn't realised - - -?‑‑‑ - - - then I hadn't realised.

PN129

And of course the training that you engaged in on your rights and obligations as a permit holder three years prior to that - or two and a half years prior to that, in 2017, obviously - I think it was your evidence before - well, I'll just ask you, didn't prevent you from engaging in the conduct that you did on 29 February?‑‑‑At that time I believed I was right.

PN130

You needed to be sat down with a safety expert and walked through the aspects of your conduct as found proven by Snaden J, and why it contravened sections 499 and 500 of the Fair Work Act?

*** JAMES JOHN WILLIAM SIMPSON XXN MR GAROZZO

PN131

MR BONCARDO: I object to that question. (1) it's somewhat of a mis‑description of Mr Lacy's and (2) the question is, with respect to my friend, based on (indistinct) premise because Mr Simpson has given evidence that after Snaden J handed down his judgment, he understood that his behaviour had been in contravention of sections 499 and 500.

PN132

THE DEPUTY PRESIDENT: Yes, I think that's a fair point. He has already said that he was in the wrong when Snaden J delivered his - - -

PN133

MR BONCARDO: Deputy President, I think his evidence was that the point at which he realised that his conduct was in contravention of the Fair Work Act is when he spoke to Mr Lacy about it.

PN134

MR GAROZZO: The evidence was that he understood properly after the training that his conduct was in contravention of sections 499 and 500. He has said a couple of times now that he understood after Snaden J's judgment came down that his conduct was in contravention.

PN135

THE DEPUTY PRESIDENT: After all that I've forgotten the question.

PN136

MR GAROZZO: I have, too. I'll move on from that; just a couple of questions.

PN137

In relation to the penalty imposed on you by Snaden J in 2021 in relation to the 29 and 30 April 2017 conduct, has that been paid?‑‑‑To my knowledge, yes.

PN138

So you didn't pay it?‑‑‑No.

PN139

The CFMMEU paid it?‑‑‑That's correct.

PN140

Finally, I note that you gave evidence to the Deputy President before about on secondment - - -?‑‑‑That's correct.

PN141

The national office. What do your duties now - - -?‑‑‑So I'm working nationally to help young organisers across the country to not do what I've done obviously.

PN142

Yes?‑‑‑And also working in regards to renewable projects, and dealing with them.

PN143

It doesn't sound like the sort of role where you have much occasion for you to exercise your right of entry, at least (indistinct) is that right?‑‑‑No, that's incorrect. I need to use my right of entry if not daily, weekly, for these projects.

PN144

In the national office?‑‑‑Yes, because I'm still an organiser.

*** JAMES JOHN WILLIAM SIMPSON XXN MR GAROZZO

PN145

Thank you. That's all the questions.

RE-EXAMINATION BY MR BONCARDO [10.38 AM]

PN146

MR BONCARDO: Just two matters, Mr Simpson. You gave evidence that the union paid the penalty imposed upon you. What do you have to say about that, sir?‑‑‑That it's not good.

PN147

Why is it not good?‑‑‑I'm wasting members' money.

PN148

Now, you were asked some questions about your secondment and duties that you had whilst working in the national office and your evidence was that you were working to help young organisers not do what you had done?‑‑‑Mm-hm.

PN149

What was that in reference to?‑‑‑In reference to the case that we're talking about now.

PN150

Thank you. That is the re‑examination, Deputy President.

PN151

THE DEPUTY PRESIDENT: Mr Simpson, thank you for your evidence. You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [10.39 AM]

PN152

THE DEPUTY PRESIDENT: Yes, Mr Boncardo.

PN153

MR BONCARDO: Thank you, Deputy President. That's my evidentiary case. By way of supplementary oral submissions, I wanted to provide to the Commission two decisions which I'll take the Commission to, but with which you are no doubt well familiar; Mr Savage's entry permit matter at first instance and the unsuccessful appeal filed by - you have that?

PN154

THE DEPUTY PRESIDENT: I have it, thanks.

*** JAMES JOHN WILLIAM SIMPSON RXN MR BONCARDO

PN155

MR BONCARDO: I'll give my friend additional copies. Deputy President, I wanted to deal relatively briefly with six matters, the first of which is the objective seriousness of the contravening. The second is the somewhat tepidly raised contention that Mr Simpson should have known that his conduct was in contravention of sections 499 to 500 presumably because of the training that he conducted in 2017. I want to say something about Mr Lacy's training, something about the importance of the unchallenged evidence of regret and then, finally, deal with the issue of the protective and/or corrective purpose of any suspension.

PN156

In relation to the objective seriousness of the contravening, I'll say a number of things about the correct reading of Snaden J's penalty decision. Can I inquire firstly, Deputy President, whether you have a copy of his Honour's reasons?

PN157

THE DEPUTY PRESIDENT: I do.

PN158

MR BONCARDO: Thank you. Now, the Commissioner we say somewhat tendentiously places reliance in his submissions on paragraph 21 of his Honour's reasons where his Honour says, amongst other things, that the contravening conduct was objectively very serious. That statement needs to be read, we submit, in light of the mitigating matters that his Honour deals with from paragraphs 22 through to 28 and that statement is a reference to the objective circumstances of the contravening shorn from its context.

PN159

That context, the Commission will see, is described in some detail commencing at paragraph 22 where his Honour notes that against that baseline analysis there are a number of mitigating factors, the first of which that his conduct was less grave than it could have been by reason of the fact that he was wearing a fluorescent vest. That's the first matter in mitigation. Secondly, at paragraph 23, the site was well lit.

PN160

Thirdly, and this is of some significance, paragraphs 27 to 28, his Honour notes that was, in effect, a dispute between the parties as to whether or not Mr Simpson knew his conduct was in contravention of sections 499 to 500. The Commissioner contended that he must have. That was a matter about which the parties joined issue. At paragraph 28, his Honour makes a positive finding which cannot be challenged in these proceedings and, with respect to my friend, properly wasn't challenged in cross‑examination that Mr Simpson -

PN161

was not alive to the fact that his conduct or continued presence at the site contravened the Act.

PN162

His Honour goes on to note that his conduct in remaining on site 'was the product of his mistaken belief that he was entitled to' do so. His Honour was very specific. He said that 'informs the court's assessment of the gravity' - that is the objective seriousness of Mr Simpson's conduct. Thirdly, paragraph 29, his Honour also takes into account Mr Simpson's relative inexperience as an organiser as a factor which is of salience in imposing penalty because, as the Commission will see from the final sentence of paragraph 29:

PN163

Had Mr Simpson been a more experienced union official, it might have been easier to conclude that he was possessed of greater knowledge about the statutory requirements and, therefore, that he knew that his conduct was offensive to them.

PN164

The fact that Mr Simpson was subjectively unaware that his conduct was in contravention of the Act is a matter of critical importance, in our submission, in assessing whether in 2022 - on 14 July 2022 - any protective or corrective purpose will be served by a suspension. The other two matters that bear on the objective gravity of the contravening are the fact that it was practically of little moment - those are his Honour's words, not my gloss on them. Your Honour will find that at paragraph 33 in the first sentence. That is, there was no adverse consequence to Mr Simpson's conduct, apart from the distraction of a number of managers from their ordinary duties.

PN165

Finally, your Honour will see at paragraph 32 - and this is an issue that the ABCC Commissioner seems to take some issue with in his written submissions - the fact that Mr Simpson was acting at the site animated solely by safety concerns, bona fide safety concerns, is a matter that his Honour accepts bears upon the objective gravity of the contravening. He wasn't there for some extraneous industrial or other purpose.

PN166

He was subject to a sanction equivalent to 30 per cent of the maximum. This isn't contravening and was not found by Snaden J to be contravening of a serious kind had it been then a penalty that was far in excess of what was imposed would have been the result. We say, for the reasons that I've outlined, that any contention that Mr Simpson did know that his conduct was contrary to sections 499 and 500 is untenable.

PN167

If I can next say something about Mr Lacy. There was some criticism, we say unfounded, of the fact that there had been no evidence from Mr Lacy in these proceedings. That was a curious contention to be made by the Commissioner in circumstances where it knew that it had not objected to Mr Lacy's evidence being read. There were some evidentiary objections, but they hadn't required Mr Lacy for cross‑examination in the penalty proceedings, and Snaden J sets out at paragraph 51 the tenor of Mr Lacy's evidence, which we embrace and which we rely upon.

PN168

That evidence goes to a number of important matters. One, Mr Simpson's expression of regret and contrition to Mr Lacy at the time of the training in January 2021. Deputy President, you earlier this year - and this is a matter that our friends refer to in their submissions - handed down a decision in Mr Hobson's case where, amongst other things, I think you made some criticism of Mr Hobson's training having occurred after a penalty judgment had been handed down and at a time when section 510 proceedings were in contemplation.

PN169

The chronology here is very different from Mr Hobson's case. Snaden J hands down his liability decision on 20 December. The union arranges for training to occur on 22 December. Your Honour will see that from paragraph 53 of Snaden J's reasons in the penalty decision. The training then occurs on 18 January 2021, well before the penalty hearing on 28 April 2021.

PN170

That training is extensive, it is specifically directed to the contravening conduct and it is training which, on Mr Simpson's uncontested evidence, was of a far superior quality to that which he had previously undertaken which was training that was approved training for the purposes of section 513(1)(a) of the Act. If I can give you, Deputy President, some references to Mr Simpson's evidence in relation to the comprehensive and directed nature of that training.

PN171

Mr Simpson has in his supplementary statement attached a number of documents that were provided to him by Mr Lacy both prior to the training - which he gives evidence about reading before having his training session with Mr Lacy and in which Mr Lacy talked through with him during the course of the 18 January 2021 training. If I can encourage the Commission to have reference to all those documents, but pay particular attention to the slides commencing at page 9 of Mr Simpson's second statement.

PN172

The Commission will see there that the Eumemmering Creek incident is described. Then, going through pages 10 to 11 and 12, the allegations made by the Commissioner, the requirements of section 499, the nature of the safety requirements that prevailed at the site and, at page 13, the reasonable requests that were made of Mr Simpson. Then page 14, 'Why was your conduct noncompliant?' This is very specific training directed to the particular contraventions. At page 15, the upshot of the analysis of the court is set out.

PN173

Then, at attachment 2 to Mr Simpson's statement which commences on page 19, the Commission will find an even fuller elaboration of the Federal Court findings by Mr Lacy which again Mr Simpson says - it wasn't challenged - that he read before he undertook the training. That documentation, the nature of the training, is such that the Commission can be well satisfied that this is a man who has well and truly learnt from what occurred on 29 and 30 April 2017, and who has given this Commission a specific assurance - which wasn't challenged in cross‑examination - that he is committed to complying with his obligations and will do so moving forward.

PN174

My friend helpfully adduced evidence that Mr Simpson's current role on secondment is to work with young organisers to make sure they don't make the same mistake he did. Now, that speaks, in my submission, eloquently to Mr Simpson being a gentleman who is highly unlikely to ever engage in this contravening conduct or contravening conduct of this type, or any contravening conduct, again.

PN175

Mr Simpson also gave evidence of the salutary effect of the court proceedings on him, at paragraph 35 of his first statement. That again wasn't challenged. He gave specific evidence of regret and the Commission will find that in Mr Simpson's first statement at paragraph 32. Paragraph 33 details his insight into his conduct. The Commission will also see that at paragraph 34.

PN176

Again, in his reply statement at paragraph 7 he makes it very clear that because of the training he had undertaken with Mr Lacy, he is better equipped to avoid situations that could result in him departing from his obligations. He has used what Mr Lacy taught him to comply with his obligations as a permit holder and will continue to do so. That, again, is unchallenged and ought be accepted. Now, this case is to some extent on all fours with the decision of your Honour in Mr Savage's case, save for a couple of matters which I'll come to in a moment.

PN177

Deputy President, you will recall that Mr Savage had engaged in improper conduct by directing abuse which was entirely gratuitous and unnecessary to an occupier of premises. I think you made - you did make, in fact, some criticism of the submission advanced on behalf of Mr Savage, without much success, that Mr Savage even though he was a junior official at the time of the contravening conduct should have known and in fact would have known that his abusive comments were plainly unacceptable.

PN178

This case can be distinguished from Mr Savage's case, because we're not dealing here with conduct that on any analysis must be conduct that someone in a position of a permit holder would know is contrary to law. That flows in part from Snaden J's penalty judgment at paragraph 27 in the final sentence where his Honour notes that:

PN179

By their nature, the requirements of sections 499 and 500 ... are susceptible to debate -

PN180

which is a point we make in the written submissions. That is, it's an evaluative objective assessment as to whether or not a requirement is a reasonable occupational health and safety requirement. The issue of impropriety, particularly of the kind engaged in here, is again a matter - as his Honour says - that is susceptible to debate. Mr Savage's conduct and its propriety or impropriety was not something that was susceptible to debate.

PN181

Your Honour found in the case of Mr Savage that his expressed contrition and acceptance of responsibility - these are paragraphs 22 through to 24 - were matters of significance in assessing whether it was appropriate to suspend or revoke his permit for the purposes of section 510(2). That is, whether or not the suspension or revocation would be harsh or unreasonable. At paragraph 24, your Honour made clear that:

PN182

An expression of remorse is also relevant when the permit holder contends that suspension or revocation ... would be harsh or unreasonable.

PN183

And:

PN184

An expression of remorse for contravening conduct leading to a triggering event would be part of the circumstances in which the consideration is undertaken.

PN185

We repeat that submission in the circumstances of the present case. Paragraph 26 of your Honour's reasons refers to Mr Savage having undertaken specific training and giving evidence not only of remorse, but of a determination and indeed assurance to not engage in contravening conduct in the future. That is the circumstance here and indeed I think Mr Savage had had a number of years of unblemished conduct prior to this judgment being handed down. Mr Simpson has had over five years of unblemished conduct.

PN186

Paragraph 29 we also place emphasis on, that the combination of matters in the circumstances of that case - including the fact of no contravening during the effluxion of time from the contravening conduct, acceptance of wrongdoing and contrition, the training undertaken, a desire to do better - meant in the circumstances of that case that you were satisfied that the risk of Mr Savage engaging in contravening conduct as a permit holder again is very low.

PN187

In my submission, the chances of Mr Simpson engaging in such conduct are very low and indeed probably lower than Mr Savage given (1) the nature of his responsibilities and (2) the nature of the contravening conduct which occurred as compared to that of Mr Savage. This is, we say, quintessentially a case like Mr Savage's where a suspension or revocation would not be reasonable or rational because there would be no protective or corrective purpose served.

PN188

The protective or corrective purpose that is contended for by the Commissioner in this case is one which cannot be accepted. This gentleman has learnt his lesson. This gentleman is committed to complying with his obligations and the Commission can be well satisfied that that is exactly what he will do, as he has done consistently since 30 April 2017.

PN189

For all those reasons we say that you would be comfortably satisfied that the circumstance under section 510(2) is established and the Commission ought exercise its discretion under that provision to not take action under section 510(1). Unless you have any questions, Deputy President, those were the submissions.

PN190

THE DEPUTY PRESIDENT: Mr Boncardo, just one. You make reference in your submissions to the effect in paragraph 21 of the Full Bench decision in Savage.

PN191

MR BONCARDO: Yes.

PN192

THE DEPUTY PRESIDENT: As I read paragraph 21, that simply stands for the proposition that the question determines it's not a mandatory consideration.

PN193

MR BONCARDO: Yes.

PN194

THE DEPUTY PRESIDENT: As opposed to not being relevant in appropriate circumstances. Do you accept that?

PN195

MR BONCARDO: In part. It makes - - -

PN196

THE DEPUTY PRESIDENT: The deterrents may or may not bring all of - the question of deterrents in exercising – considering whether or not a suspension or revocation would be harsh or unreasonable in the circumstance, is to be assessed by reference to the circumstances of a particular case.

PN197

MR BONCARDO: Yes.

PN198

THE DEPUTY PRESIDENT: So, deterrents may, in fact, be a relevant consideration in some cases.

PN199

MR BONCARDO: I don't accept that and that is not what paragraph 21 says. In fact, paragraph 21, if the Commission reads to the base, and this is a matter that you have drawn attention to in a number of decisions that you have handed down, is to the effect that, the exercise of power under section 510, does not involve the exercise of appeal function and there is no basis to conclude that.

PN200

Further consideration of the need for general deterrents in respect of an officials contravention must be taken into account.

PN201

THE DEPUTY PRESIDENT: That's my point.

PN202

MR BONCARDO: I accept that is a Peko-Wallsend part assessment.

PN203

THE DEPUTY PRESIDENT: Yes, and I don't read anything in paragraph 21 which is contrary to that.

PN204

MR BONCARDO: I accept that, but we say that it follows from the fact that these are not penal proceedings, and the general deterrents has already been attended to by the imposition of a penalty on Mr Simpson, that general deterrents cannot and should not play any role in the imposition of a suspension in the circumstances of this matter. Particularly when it is uncontroversial that the object of these proceedings are protective and corrective and are protective and corrective of Mr Simpson, not of permit holders generally.

PN205

I don't think the Commissioner contends to the contrary, although, perhaps the Commissioner might jump on that point, no doubt opportunistically, in his submissions. But that is not put and it's properly not put in the submissions by the Commissioner, who, if I can remind the Commission, accepts properly that these proceedings are protective and corrective at paragraph 22.

PN206

The Commission in these proceedings must be guided by protective and corrective and not penal considerations. Deterrents, whether specific or general, is a penal consideration.

PN207

And it is – whilst I accept your analysis of paragraph 21 of the Full Bench decision, with respect, there is no warrant for a general deterrent being a matter of any significance, and indeed, it would be an irrelevant consideration in the context of section 510 proceedings which focus on an individual permit holder.

PN208

THE DEPUTY PRESIDENT: Yes, all right.

PN209

MR BONCARDO: If the Commission pleases.

PN210

THE DEPUTY PRESIDENT: Thank you. Mr Garozzo.

PN211

MR GAROZZO: Thank you, Deputy President. The Commissioner arrived at his written submission, filed on 4 June 2022. I propose to (indistinct) from a letter (indistinct) reply submission and reply statement and also (indistinct) this morning. At the outset, I wanted to start with recalling the overarching point with which the Commission is tasked as you, Deputy President, have the (indistinct) in a number of decision, if by default, save for application, the exception that my learned friend relies upon.

PN212

That a permit will be suspended or revoked will be about triggering circumstance. The Commission must revoke a suspend entry permit held by a permit holder if that event has occurred. Here, the imposition of civil penalties in respect of conduct as a permit holder, Mr Simpson. Because Mr Simpson is a first-time contravener, the period for a suspension is three months and so the spectrum of default action to be taken by the Commission is three months' suspension up to revocation.

PN213

There's (indistinct) exception to that, which I've mentioned and my learned friend relies upon where the imposition of the suspension or revocation will be harsh or unreasonable. That harshness needs to be seen in that context. It's following from the action, the Fair Work Act has prescribed as following automatically from the imposition of pecuniary penalty on a permit holder. Establishing it requires more than, I submit, some tactics in litigation and that's all that my learned friend's submission comes down to, in my submission. That's in litigation, which, in the ordinary course would warrant something less than on that spectrum revocation, or a particular severe period of suspension and that's reflected in Commissioner (indistinct)'s position and this proceeding with the appropriate action with the suspension for a period of three months.

PN214

My learned friend's submission to the effect that the Commission should do nothing, as I'll develop, is not sustainable. Now, I'm going to talk about a few things the applicant – the objective seriousness of the applicant's conduct which my learned friend refers to, and deal with how it's effectively characterised. The issue of experience and training, and its impact on the Commission task today. The question of remorse, contrition, the effluxion of time and the effect of the proposed suspension under section 510(b).

PN215

In relation to conduct, my learned friend attempts to argue the applicant's contraventions to the Fair Work Act arose purely from a misconception by the applicant as to the nature of his conduct and its compliance with the Fair Work Act. That the deliberate decision by him to engage in the contravening conduct was a matter about which reasonable minds might differ, in effect. My learned friend purports to rely on Justice Snaden's findings of the penalty judgment to support that proposition and I'll speak in a moment about why it doesn't support the proposition as he contended that it did.

PN216

As is revealed extensively in Justice Snaden's liability judgment, what Mr Simpson did on the evening of 29 April 2017 and the morning of 30 April 2017, was to attend at the site, not being the site office, but this is on the Monash Freeway (indistinct) project. But by a slip lane, parks his car on the site, he encounters a number of representative from Fulton Hogan which occupy the site there. He raises some safety issues with them, and approaches the water-filled barriers run, which he gave evidence he thought was the demarcation between the entrance and exit of the site. He was told by the representatives at Fulton Hogan that he could not be on site and he would be trespassing if he went further and also that he was trespassing by his presence, because he didn't have the correct personal protective equipment on. That was safety glasses and white overalls.

PN217

This exchange goes on for some time before Mr Simpson walks, which he denied in the proceeding, but it was found proven against him. He walked down a ramp that led to the Eumemmering Creek where there was a barge with some workers on it and he shouted out to the workers various things about them taking their life in their hands by working on the barge. All the while, the HR IR Manager of Fulton Hogan, the occupier, is chasing behind him and that's the word that Justice Snaden uses in his judgment. He had to chase after Mr Simpson.

PN218

WorkSafe is then called, the police are called in relation to the trespass. I believe the evidence demonstrated that Mr Simpson actually calls WorkSafe first in order to seek for them to facilitate his entry into the site. WorkSafe tells him that they can't facilitate his entry unless he complies with the health and safety requirements of the occupier and that he should leave. The police arrive and there's some lengthy discussion about the purpose of him being there. Eventually, the police leave on the basis that they tell him to stay off - or it's agreed with Mr Simpson that he will stay by the water-filled barrier and that is this line separates the car park effectively from the rest of the site, and he agrees, and effectively obtains the departure of the police from the site on the basis of the agreement that he will stay where he is.

PN219

The police leave. He then, he gave evidence, feels a gust of wind, which gave him concern about the safety of a crane that he saw operating in the distance.

PN220

He runs up the ramp. Previously went down the ramp on the first occasion. He now runs up the ramp, goes across a bridge, up some stairs and out onto the freeway, two lanes of which were blocked off to enable work being done on the site, where he encounters a worker, the worker there who was working on the crane, and discusses with him the safety of working while the wind was gusting, he'd say, Mr (indistinct) and Mr Inkster from Fulton Hogan chasing behind him the whole time, protesting at him having not only entered the site but making further incursions into it.

PN221

In doing so, he has directly disregarded the express advice of WorkSafe. He has overridden the fervent protestations of the representatives of the company and he has completely gone against the agreement that he made with the police by which the police left the site.

PN222

Here's what his Honour said in relation to that conduct in the penalty judgment, if you have it up. There's about four or five paragraphs. I won't read it all, but I will draw some attention to it, because my learned friend, with respect, has sought to skate over it.

PN223

Commencing with paragraph 17, Snaden J said:

PN224

Simpson's conduct was deliberate. He knew that it contravened the OHS requirements that applied to the site. He was told as much. He arrogated unto himself a right to elevate his own concerns above the obviously more important measures that Fulton Hogan had put in place in the site to ensure that works could progress there safely.

PN225

To say so is not to downplay Simpson's concerns -

PN226

- he goes on:

PN227

As is explored in detail in the liability judgment, those concerns lent themselves to investigations in ways that did not require his attendance at the site in contravention of those protocols.

PN228

And his Honour made an express finding that it would have been reasonable for Mr Simpson to take up the offer that had been made - I forgot to mention that - the offer that had been made by the Fulton Hogan representatives that he attend their site office in order to discuss all of the concerns that he had:

PN229

He could have taken up that offer. Instead, he made a conscious choice to remain at the site, even in the face of representations from WorkSafe that he ought not to.

PN230

Paragraph 18:

PN231

Worse, his conduct throughout the episode left much to be desired. Despite understanding that he was not permitted to venture around the site unescorted, and despite agreeing with the police that he would not venture away from the water‑filled barriers at the top of the creek access ramp, he did precisely that.

PN232

Paragraph 19 is the first incident, where he walks away from the water‑filled barriers, down the ramp, as I spoke about. Over the page, the last three sentences are:

PN233

Simpson appears to have felt entitled to take it upon himself to venture as he pleased and make outlandish accusations under the guise of safety. He did not have any such entitlement. That he acted as he did whilst in known breach of applicable safety protocols beggars belief.

PN234

Paragraph 20 is the description of the gust of wind occasion:

PN235

Again, he made no attempt to even pretend to comply with his obligations not to wander unescorted from where he was. Instead, he made a conscious decision to strut around the site like he owned it.

PN236

Finally, paragraph 21, which my friend adverted to:

PN237

In at least those respects, Simpson's conduct at the

PN238

Eumemmering Creek site was objectively very serious.

PN239

That's the finding:

PN240

He arrogantly assumed for himself a right to determine with which of Fulton Hogan's OHS requirements he would comply. He knowingly contravened the protocols that were in place. Despite professing to be there to ensure that work was carried out safely, he put himself and others at risk. His conduct was reckless and conceited.

PN241

As my friend has drawn attention to, Snaden J then goes on to refer to some mitigating circumstances. In his reply submission at paragraph 17, in response to a submission in the ABC Commissioner's written submission, my learned friend says:

PN242

Mr Simpson did not exhibit a nonchalant attitude, nor did he blithely choose to not comply with safety requirements imposed on the site. Rather, he operated under a misapprehension as to whether those requirements were reasonable and whether he was required to comply with them.

PN243

With respect to my friend, he's flipped it. Mr Simpson was nonchalant. He did blithely choose not to comply with the OHS requirements that applied at the site. Those are the express findings of Snaden J. It's just that Snaden J said that he was not persuaded that Mr Simpson understood that that serious contravening was serious contravening.

PN244

That's not a matter that stands in Mr Simpson's favour in this matter in terms of his status as an ongoing permit‑holder. It's a matter, I submit, that is very much adverse to him, that shows a lack of insight, a lack of understanding and, for reasons that I'll develop in a moment, a resistance to training.

PN245

It was treated by Snaden J as a mitigating circumstance in terms of Mr Simpson's culpability for the contraventions and the penalty that should be imposed on him, but in the context of this proceeding, where the Commission, as I've said, is considering Mr Simpson's ongoing status as a permit‑holder, with all the rights and responsibilities that that entails, it's an adverse matter and should be treated as such.

PN246

On the question of Mr Simpson's experience and training, on the question of the significance of his relative inexperience at the time of his contravening, my learned friend submits that the Commission can be satisfied that he's a much more experienced permit‑holder now and much more - well, understands much better what's right and what's wrong as a result of that experience, but that's not right.

PN247

For a start, these weren't the actions of a callow youth. I believe he said that he's 33 years old now, so he was in his very late twenties at the time, an adult. He'd been in the workforce for well over a decade, probably close to a decade and a half at that time. He'd always been in the industry, prior to the experience that he had in retail, working for Woolworths, and he'd been a member of the CFMMEU and an official on sites since 2011.

PN248

In terms of his non‑permit holder experience at that time, therefore his experience, leads to a conclusion that he should have known better, but as to the submission that the years of experience that he's gained since the contravening conduct, since 2017, and how that's inevitably bolstered his judgment and ability to tell what's right and wrong, that's not consistent with the evidence.

PN249

His evidence is that he did not understand that what he did was wrong until last year. At the very best, on the best case of the evidence for my learned friend, he says in December of 2020, so a month before when Snaden J's liability judgment came out.

PN250

I submit that the evidence clearly shows, in response to a number of questions that I asked of him, the record will reflect that he said, 'When I did the training with Mr Lacy I understood that my conduct contravened the Fair Work Act', and I clarified that with him.

PN251

So the conclusion to be drawn, I submit, in light of that, is that the years of experience that's built up after his contravening conduct hasn't helped him at all to identify what's right and wrong, because he still thought that he was right when he was clearly, objectively, and on the findings of Snaden J in his Honour's judgments, wrong.

PN252

It's a similar story for training. My learned friend submits that he knows better now because he's done this extensive training with Mr Lacy. But he, as has been established had had right of entry training in 2017 when he was issued his first permit and he had trained in 2019 in December 2019 when he made his – well, when the CFMMEU, on behalf of the application to renew that permit. He didn't even recall the latter, even though, as I explored with him, it was right in the middle of the civil penalty proceeding that had been instigated against him by our client.

PN253

As was established he agreed, it might not have been as extensive as what he went through with Mr Lacy in respect of his specific contraventions in the Justice Snaden proceeding, but his trainings generally covered the same rights and obligations, the same strategies for avoiding contravening behaviour that Mr Simpson gives evidence about going through with Mr Lacy. Becoming familiar with section 499, section 500 and their requirements. Calling the CFMMEU and seeking their legal and industrial advice if you have any concerns or enquiries.

PN254

Yet the 2017 training, clearly failed to prevent, even though it had occurred two or three months before the conduct in April 2017. Clearly failed to prevent that conduct from occurring in between training. Failed to bring home to him any insight about the impropriety of that conduct – sorry, the December 2019 training, excuse me, failed to bring home to him any insight about that prior conduct in the context of the civil penalty proceeding that had been instigated against him, thought it may have done if he'd remembered he'd undertook it.

PN255

The submission from my learned friend appears to be well, now he's undertaken targeted training. Targeted training specifically in relation to what he did on 29 and 30 April 2017 at the Eumemmering Creek site. So, he knows this specific conduct was contrary to his obligations under the Fair Work Act, but that's inherently problematic, because when the Commission issues a permit, it's obviously entitled to some confidence or comfort that the holder of the permit to which it's issued is capable of exercising appropriate judgment and conducting themselves in a way that comports with their obligations under the Fair Work Act in a variety of situations.

PN256

The Commission shouldn't have to expect, that in relation to select instances of conduct, Mr Simpson is going to have to sit down with Mr Lacy to go through, well, that if you were faced with that situation, well you could certainly go into that, because that would contravene the obligations under the Fair Work Act. It should be expected that in light of the obligations that presented to a permit holder which they hold and understand, they can apply that in a given situation reasonably. I submit that Mr Simpson has proven that is unable to do that, and there's not a great amount of evidence to suggest that that's changed. In fact, the evidence of the training in December 2019, which he doesn't even remember, failed to dislodge his misconceptions about the impropriety of his behaviour.

PN257

So, my learned friend's submissions about Mr Simpson's relative inexperience at the time of his contraventions and about the training that he's engaged in, since the court found them, cut both ways in my submission. To the extent that they cut against Mr Simpson, they're concerning, and they should provide significant cause for the Commission as to whether it's appropriate to do what my learned friend is suggesting that you do, pursuant to section 510.

PN258

In relation to the question of remorse and contrition, perhaps I'll start with quickly pointing out one significant difference between the Savage matter and this matter, which is that Mr Savage admitted all of his contraventions and didn't contest the allegations against him. Mr Simpson contested all of the relevant allegations that were found proven against him, right up until the very end and conveniently accepted that his conduct was a contravention, immediately after the judgment was handed down. And Deputy President, you will see when you – you probably already have, read the judgment that included submissions along the lines of, Mr Inkster, HR IR Manager for Fulton Hogan chasing after Mr Simpson on the worksite as he took off to investigate the gust of wind, that that constituted escorting, in the relevant sense, in compliance with the HS policy. A fairly tenuous and point of view in my submission.

PN259

At paragraph 24 of my learned friend's submission in reply, he deals with the Brian Lacy AO training and affidavit and annexed report and he does so by reference to a passage from the Commissioner's submission which says that there is no – well, at that stage, there was no evidence before this tribunal in relation to Mr Lacy's evidence. It doesn't have any reflection on my client as a model litigant to point that out. It's a matter for Mr Simpson to satisfy the Commission that the relevant threshold was crossed to have the outcome of the proceedings and to put the appropriate evidence on, and he now has properly put the relevant aspects of Mr Lacy's report before the Commission, and that's the only point that was being made there.

PN260

In that affidavit, however, what Mr Lacy said was that in his observation, Mr Simpson appeared to be contrite and whether he appears to understand his obligations under the Fair Work Act, and has my learned friend has accurately recited that was also the penalty judgment of Justice Snaden. But that's obviously not the same thing as Mr Simpson making the express statement of his contrition and remorse and demonstrating insight into its contravening conduct. For one thing, as his Honour Justice Snaden found, to the extent that Mr Lacy makes that comment in his report, that's a combination of hearsay and opinion, would be inadmissible in that court and he found that at paragraph 54 of the penalty judgment.

PN261

But more importantly on the basis that it traverses beyond the realm of expertise that Mr Lacy's report had properly been admitted for. But for another thing, it doesn't explain why Mr Simpson, who was a party to the proceeding at that point and facing the imposition of suitable penalties against him, failed to provide an affidavit saying as much, saying that I'm contrite, saying that I'm remorseful, setting those matters out in his own evidence, as opposed to relying upon Mr Lacy's apparent observations of that fact.

PN262

The fact of the matter is, that in this proceeding, well excuse me, the first time that Mr Simpson has offered an express statement of remorse, contrition, insight was in this matter 20 May 2022 when he filed his statement which has been entered into evidence and named exhibit 1. It's to his credit as the Commissioner's submissions say, that he's done that, but it needs to be viewed by the fact that it is late. It's been given very late in the peace, particularly when he claims to have had the revelation about the impropriety of his conduct, albeit, late in my submission for the overall scheme of things, but in January 2021, more than a year before his statement in this proceeding. But there's no way around that, it seems to me.

PN263

Finally, on the question of contrition and remorse, my learned friend is at pains to point out the salary effect that the penalty imposed on Mr Simpson would have. It's been established now in this proceeding that Mr Simpson didn't actually pay that penalty and the CFMMEU paid it for him. So, that submission doesn't go (indistinct) in my submission.

PN264

In relation to the effluxion of time, it's a neutral consideration in and of itself, as your Honour has found a number of times, including on the Seiffert case which is referred to in the Commissioner's written submissions, and also in Hobson.

PN265

The relevant question is, the substantive question is, what has Mr Simpson done in the intervening period, and to Mr Simpson's credit, he has not contravened the Fair Work Act again, and that's clear, but in my submission, it's a low bar to say, well, you know, 'Well done', to Mr Simpson. 'He's managed to restrain himself from contravening the piece of Commonwealth legislation that has offered him this permit and therefore it would be harsh to impose the automatic action that flows from section 510 in relation to it.' Without more, that is a long bow.

PN266

To the extent that my learned friend is submitting that what the intervening period and the lack of contravention demonstrates is that he's got new insight and understanding into his conduct, that is, the 2017 conduct, that he's developed at some point in those last five years, that needs to be viewed in light of the submissions that I've already made about the fact that up until a year ago he maintained that he'd done nothing wrong in 2017.

PN267

So that needs to be weighed in the balance when considering the submission made by my learned friend that Mr Simpson's a changed man in the last five years since his contravening conduct occurred and the Commission should find that there's no risk of further contraventions, because it isn't supported by the evidence.

PN268

The final topic, Deputy President, is about the effect of a potential suspension of Mr Simpson's entry permit. As to harshness, there is no evidence of significant adverse effects on anybody - of a three-month suspension, that is - that could result in a conclusion of harshness.

PN269

There's no evidence that it would significantly impact the CFMMEU in a substantial way, which, as you've found before, is a substantially, significantly well‑resourced organisation with the ability to employ permit‑holders to incidents as they arise, particularly in circumstances where we're talking about a three‑month suspension.

PN270

There's no evidence of a significant adverse impact upon Mr Simpson either, such that he'll lose his job if he doesn't have an entry permit or otherwise suffer significant adverse consequences as a result.

PN271

The height of the evidence is in the final paragraph of Mr Simpson's statement of 20 May 2022, the first sentence therein, where he says:

PN272

Retaining my right of entry permit is very important to me, as it will allow me to continue my efforts in assisting with the resolution of industrial and safety issues and advancing the interests of construction workers.

PN273

But that's not sufficient, in my submission, to go anywhere near establishing harshness. We've heard some evidence this morning which just happened to fall out about apparently Mr Simpson's got a role that engages in some way with other members of his organisation.

PN274

There's not sufficiently substantive evidence of that to prove anything, Deputy President. It wasn't in his evidence as filed and doesn't affect the question of harshness any further.

PN275

THE DEPUTY PRESIDENT: I think (indistinct) Mr Boncardo prefaced this question (indistinct).

PN276

MR GAROZZO: In any event, Deputy President, I submit that based on the evidence as it is about that position, it doesn't take the matter significantly further.

PN277

THE DEPUTY PRESIDENT: I understand.

PN278

MR GAROZZO: Mr Simpson's confirmed that he didn't suffer the financial consequences of the penalty that was imposed on him, and I've discussed that the height of the evidence is that what would be effectively a moderate - well, let's say an inconvenience to Mr Simpson to have his entry permit suspended for three months.

PN279

To the extent that those consequences flow to him, that is a, so to speak, self‑inflicted (indistinct) and the automatic result from the application of section 510 resulting from his contravention of the civil remedy provisions and the pecuniary penalties that were ordered.

PN280

Finally under this final heading, on the question of the Savage case, and that is the Full Bench's decision, my understanding of the Full Bench's decision is the same as you expressed to my learned friend, Deputy President. My learned friend's submission appears to be not only that deterrence is not a mandatory relevant consideration in the particular (indistinct) terms, but that it is a mandatory irrelevant consideration.

PN281

(Indistinct) the text and the scope and the purpose of the Fair Work Act precludes it being taken into account by the Commission is clearly not the case and there would be situations in which it was - well, it may be at least relevant for a member of the Commission to take into account in determining a matter.

PN282

Having said that, it's clear that that particular Full Bench in obiter dictum at the end of paragraph 21 expressed the view which might be said to cast some dubiousness about whether or not it applies, but ‑ ‑ ‑

PN283

THE DEPUTY PRESIDENT: Yes, I read that sentence (indistinct) paragraphs (indistinct) must again - must (indistinct) mandatory sense.

PN284

MR GAROZZO: Yes.

PN285

THE DEPUTY PRESIDENT: As opposed to that it must be relevant in all circumstances.

PN286

MR GAROZZO: Yes. And in the written submissions filed on behalf of the Commissioner, Deputy President, at the top of page 17, the second sentence, starting on the page:

PN287

The deterrent effect of any penalty imposed on a permit‑holder by a court in respect of contravening conduct that gives rise to a triggering event may be relevant.

PN288

Yes, and that's from the Blakeley decision, one of your Honour's since the Full Bench's decision in the Savage matter.

PN289

But as it applies to specific deterrence, it's clearly a relevant matter, it seems to me, at least to the extent that it might overlap with what we might call the protective purpose of section 510.

PN290

I hasten to note that a large part of my learned friend's submission is taken up in arguing the fact that there's no need for the Commission to impose any further action under section 510 because it's unlikely that Mr Simpson will re‑contravene based on what's transpired in the last five years.

PN291

That sounds very much to me like an argument against the need for specific deterrence, which would suggest that it's at least relevant, but if I could deal with it under the banner of the protective purpose of section 510, which, as I've said, I think would overlap substantially.

PN292

Based on the submissions that I've spent some time going through this morning, the submission that Mr Simpson now has some pristine insight into his obligations as a permit‑holder such that it would be harsh for the Commission to take even the minimum default action prescribed under section 510 of the Fair Work Act against him is simply unsustainable.

PN293

I cavil with what my learned friend said about the protective purpose being protective of Mr Simpson. The protective purpose of section 510 is clearly in relation to occupiers in relation to whose site a permit holder would seek to exercise their rights, and potentially contravene the Fair Work Act.

PN294

So, to conclude, Mr Simpson has failed to establish that would be harsh or unreasonable to suspend his permit. The reasons for that are the objective seriousness of his contravening conduct as filed by Justice Snaden. The apparent lack of impact that the training that he engaged in in 2017 and 2019 and the accrued experience that his accrued to him between his contravening conduct and the time of the, at least, second training session. The lateness of his statement of remorse and regret and the absence of evidence as to any significant impact of three months' suspension by the CFMMEU or him litigating circumstances raised by Mr Simpson do not go beyond the justification of leniency in the imposition of the period of suspension. And in my submission, accordingly the Commission must at least suspend Mr Simpson's permit and the Commissioner supports that based on (indistinct) circumstances in Mr Simpson's failure to do (indistinct).

PN295

THE DEPUTY PRESIDENT: Anything in reply Mr Boncardo?

PN296

MR BONCARDO: Firstly, Deputy President, in relation to paragraph 21 of the Full Bench decision, having re-familiarised myself with the matter, I accept your characterisation of paragraph 21, as dealing with the specific submission made by the Commissioner. Can I draw your attention to paragraph 16 and at the base of page 373 of the industrial report, the Full Bench endorses your Honour's statement of principles at paragraphs 9 to 11 and 28 of Mr Savages' judgment? Paragraph 28 I think I mentioned in my address, initially concludes thus:

PN297

That the court has already imposed a punitive sanction. The function under section 510 is to be protective and is thus to be understood to be protective and corrective in nature.

PN298

That analysis which makes clear that the Commission's task here is not penal or punitive, which was endorsed by the Full Bench, makes it very clear in my respectful submission, that deterrents whether general or specific is not a salient matter in the circumstances of this case, and indeed, applications under section 510 generally. I note that my friend hasn't said anything as to why a three month suspension would be of any significance from the perspective of general deterrence. That in my submission is appropriate. Nothing has been put that general deterrents will be served if Mr Simpson's permit is suspended.

PN299

Can I deal with some of the other matters that my learned friend raised. Firstly, in relation to Mr Simpson not paying the penalty. Mr Simpson's evidence was that whilst he was not personally responsible for paying the penalty, he regrets the fact – I think his words were, it's no good that the amount of money or the amount of penalty was imposed and that it was a waste of members' money. That shows, in my submission, a desire by him, reflected in his statement to never be in a position such as he was on 29 and 30 April 2017, again, and entails that the Commission can be satisfied that specific deterrents has been amply attended to.

PN300

My friend made a submission that Mr Simpson's experience in the industry should have meant he knew what was right and what was wrong. Now, again, there is, and if you recall the ABC Commissioner, of what Justice Snaden says at paragraph 27 of his Honour's reasons, where he makes clear that the requirements of section 499 and 500 are susceptible to debate. They were susceptible to debate in this case. But to give the Commission an example, in the liability decision, his Honour spends 54 paragraphs between paragraphs 134 and 138 assessing whether the white overalls requirements was a reasonable occupational health and safety requirement. These are matters of evaluative judgment; they are not matters akin to Mr Savage's case where things fall on one side or another of a very light line; they do not.

PN301

Secondly, in relation to training, Mr Simpson's evidence, including that adduced under cross-examination was that the training with Mr Lacy stood apart from the training that he had done previously. He told my friend that that training, that is the previous training was nowhere near as thorough as Mr Lacy's and the attempt to in some way denigrate the significance of Mr Lacy's training goes nowhere, particularly in circumstances where my friend didn't ask Mr Simpson a single question about how Mr Lacy's training, in fact, differed from the training he conducted previously. The Commission would accept Mr Simpson's evidence that it was nowhere near as thorough.

PN302

Thirdly, in respect to this submission which is reagitating what Justice Snaden dismissed in the penalty decision that Mr Simpson was not operating a mistake. The Commissioner again, stops his analysis at paragraph 21 and does not go and read the judgment in full. He selectively finds portions that assist him and he misses the finding at paragraph 29 and 28 which make it clear that Mr Simpson was operating under a mistake, and that his relative inexperience was a matter which contributed to the contravening.

PN303

In relation to the criticism that is now made of the expression of contrition, that criticism should not be accepted. Mr Lacy forwarded a view that Mr Simpson was contrite. My friend took you to paragraph 54 of Justice Snaden's penalty decision, but he didn't take you to the last sentence, which makes it clear that that evidence was admissible under 66A of the Evidence Act. In any event, it doesn't serve the ABC, Commissioner, particularly well to criticise Mr Simpson's contrition, in circumstances where it was not challenged in cross-examination. It wasn't put to him that he wasn't genuinely contrite, that he hadn't expressed contrition to Mr Lacy. It's merely an example of the Commissioner being, not even willing to (indistinct) yet afraid to strike. He didn't even challenge or ask any questions about contrition.

PN304

Finally, Deputy President, my friend's submissions focus principally on – or at least in oral address, a suspension or revocation being harsh. We rely upon, principally, a sus pension or revocation being unreasonable. You explained with respect, succinctly, what unreasonableness entails at paragraph 28 of your judgment in Mr Savage's case. That is not reasonable or rational, or excessively moderate or exorbitant in the circumstances. Our submission is that you have here Mr Simpson's evidence that he regrets his conduct, that he's committed to complying with the law moving forward. That he has been complying, that he did wrong and he's determined not to repeat it.

PN305

In those circumstances, what protective or corrective purpose would be served by a suspension or revocation? In my submission, none would be and it would be an immoderate, excessive and irrational exercise under section 510(1). Unless you have any questions, Deputy President, those are the reply submissions.

PN306

THE DEPUTY PRESIDENT: No, thank you, Mr Boncardo. Can I thank both counsel for their helpful written and oral submissions today? I reserve my decision and will publish my decision in due course. We're adjourned.

ADJOURNED INDEFINITELY [11.47 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JAMES JOHN WILLIAM SIMPSON, SWORN................................................. PN15

EXAMINATION-IN-CHIEF BY MR BONCARDO........................................... PN15

EXHIBIT #1 WITNESS STATEMENT OF JAMES JOHN WILLIAM SIMPSON DATED 20/05/2022................................................................................................................. PN26

EXHIBIT #2 WITNESS STATEMENT OF JAMES JOHN WILLIAM SIMPSON DATED 23/06/2022 PLUS ATTACHMENTS...................................................................... PN32

CROSS-EXAMINATION BY MR GAROZZO................................................... PN33

RE-EXAMINATION BY MR BONCARDO...................................................... PN145

THE WITNESS WITHDREW............................................................................. PN151