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[2017] FWC 5086
General information, not legal advice.
Fair Work Commission
2017-10-18
White J
Original judgment source is linked above.
s.510 - Revocation or suspension of an entry permit
ss. 510(1), (2), (4), (5) and (6); penalty imposed on Mr Kalem and CFMEU for a contravention of s.500 of the Act; whether to suspend or revoke entry permit; whether suspension in the circumstances harsh or unreasonable; permit suspended for 3 months; ban period for 3 months.
[1] Mr Muhammed Kalem (Mr Kalem) is an official of the Construction, Forestry, Mining and Energy Union (CFMEU) and is employed by it as an organiser. Mr Kalem is the holder of a right of entry permit issued pursuant to s.512 of the Fair Work Act 2009 (the Act) (the Permit). The Permit was issued to Mr Kalem on 14 April 2016 and will, absent other intervening events, expire on 14 April 2019.
[2] In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union[1] (Penalty Decision), White J declared, inter alia, that:
• Mr Kalem contravened s.500 of the Act on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Part 3 - 4 of the Act by failing to provide a notice of entry as required by s.487 of the Act, in order to enter the Flinders University project at Tonsley Park (the Flinders University Site) and remaining on the site for about an hour and 40 minutes and by distracting workers by speaking to them as they worked[2] and;
• By reason of s.793 of the Act, the CFMEU contravened s.500 of the Act on 30 October 2013 by the conduct of Mr Kalem constituting his contravention of s.500 of the Act.[3]
[3] His Honour relevantly ordered that, Mr Kalem pay a pecuniary penalty of $1,500.00 in respect of the s.500 contravention the subject of the declaration to which reference is made above. The CFMEU was ordered to pay a pecuniary penalty of $25,000.00 in respect of the s.500 contravention.
[4] On 2 May 2016, the Fair Work Commission initiated consideration of whether the Permit held by Mr Kalem should be revoked or suspended pursuant to s.510 of the Act. On 5 May 2016, I listed the matter for a directions hearing and I also invited the Director of the Fair Work Building Industry Inspectorate (as the office was then known) to attend as an interested party. On 10 May 2016, the Director advised me that an appeal had been lodged by the CFMEU against the decision of White J and that it had no objection to an adjournment being granted pending the determination of the appeal. On 17 May 2016, the CFMEU requested that the directions hearing be vacated pending the outcome of the appeal and on the same day, I granted the adjournment.
[5] On 6 February 2017, the CFMEU advised me that the appeal had been listed for hearing on 2 and 3 March 2017. On 26 May 2017, the CFMEU indicated that a Full Court of the Federal Court had determined not to grant leave to appeal.[4] As such, I issued Directions on 7 June 2017 and listed the matter for hearing on 31 August 2017. Due to varying commitments of the parties involved, I did not hear the matter until 18 September 2017. The Australian Building and Construction Commissioner (the Commissioner) was represented at the hearing.
[6] As I have earlier observed, the Federal Court imposed a penalty on Mr Kalem and on the CFMEU because Mr Kalem contravened s.500 of the Act. That section provides:
A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
Note 2: A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.
Note 3: A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).
[7] Section 500 of the Act, along with s.510 of the Act, are part of a right of entry scheme established by Part 3 - 4 of the Act. Section 510 of the Act relevantly provides the following:
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.
(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.
(5) If the FWC takes action under subsection (1), it must also ban the issue of any further entry permit to the permit holder for a specified period (the ban period).
(6) The ban period must:
(a) begin when the action is taken under subsection (1); and
(b) be no shorter than the minimum suspension period.
[8] The object of Part 3 - 4 of the Act is to be found in s.480 of the Act and provides:
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.
[9] In Maritime Union of Australia v Fair Work Commission[5] a Full Court of the Federal Court made the following observations about Part 3 - 4 of the Act:
Although the questions for resolution may be stated simply, it is important to recognise at the outset that Part 3-4 of the Fair Work Act fundamentally modifies common law rights.
A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees' Union (1987) 18 FCR 51 at 61 to 62 thus observed:
The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.
See also: Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 439 to 440 per von Doussa J.
Section 480, extracted at [8] above, sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not "untrammelled" and are subject to both express and implied constraints: Australasian Meat Industry Employees' Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a "permit holder" renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.
It is thus not surprising that the legislature has confined the category of persons who may be clothed with such powers to those persons who are "fit and proper".[6]
[10] As I observed in another matter,[7] to this I would add, it is also not surprising that the legislature has determined (subject to limited exceptions) to compel the removal of such powers from a person who has contravened any of the prohibitions found in Division 4 of Part 3 - 4 of the Act, and has had a pecuniary penalty imposed on that person or another person by reason on the contravention.
[11] In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union[8] (Liability Decision) White J set out the contravening conduct in which Mr Kalem had engaged on 30 October 2013 as follows:
"Flinders University site: 30 October 2013 - findings as to the conduct
Mr Crabb: Morning Mark. I haven't seen an entry permit for any of you guys.
Mr Crabb: Well, you need one. You know I need to ask you to leave if you haven't got one.
Mr Gava: We're not leaving. This is the way it's done now. We're going for a walk on the site.
The other men stood about 710 m away at the time and did not contribute to the discussion. Mr Gava said to Mr Crabb "this is Moe, Vern and John. These guys are officials from interstate and they want to look around". As a result of discussions later that day, Mr Crabb learnt that Moe (Mr Kalem) and Vern were from Melbourne and John (Mr Lomax) from Canberra. The evidence did not identify Vern more particularly but he, like the others, was wearing a hard hat and clothing with CFMEU insignia and logos. I think it probable, and so find, that he too was a CFMEU organiser.
The four CFMEU officials then walked further into the site. They walked around the site for about 1520 minutes, mostly staying in the vicinity of one another, but moving separately. Mr Crabb rejected the suggestion that Mr Gava had appeared to be leading the group. Mr Crabb followed the officials but at a distance of about 20 m as he wished to avoid creating a confrontation. He observed them talking with six to eight formworkers, taking photographs and making audio notes on their mobile phones. Mr Crabb could not hear all the conversations but noted that several were brief (30 seconds to a minute) and seemed to be in the nature of short enquiries by the officials and answers by the workers.
The officials then approached Mr Crabb. They told him of some observations which they had made regarding a second access staircase to the formwork decks, access under the formwork platforms and the locking of the switch box containing RCD breakers. Either Mr Kalem or Vern (Mr Crabb could not remember whom) referred to how things were done in Melbourne.
By this time it was about 9:30 am, the time for the morning smoko of the formworkers. They went to the lunch shed and the four CFMEU officials followed them. They remained in the lunch shed until the end of smoko. Mr Gava then had a conversation with Mr Grindle.
One of the CFMEU officials asked Mr Crabb if they could sit down somewhere with him and have a talk. Mr Crabb agreed. The officials also asked Mr Wallace, a Safety Advisor employed by Lend Lease, and Mr Grindle to join them. The meeting took place in the Induction Room on the site.
In the meeting, the officials raised a request that the Lend Lease Safety Committee commence carrying out site walks, that padlocks be put on electrical boards, that access ways through frames be defined and that there be two stair access points to the "live deck". The discussion on these issues was mainly led by Mr Lomax.
Mr Gava and Mr Lomax then raised the question of Lend Lease employing a permanent CFMEU delegate on the site. Mr Crabb was aware of this issue as it had been raised by the CFMEU a number of times over the previous three weeks, although not by Mr Gava. He told the men that this was not something which could be agreed at the site level and that the request should be made to Lend Lease senior management, with words to the effect "you will need to get Aaron [Cartledge, the State Secretary of the CFMEU] to speak to Chris Leopold if that's going to happen". Mr Crabb also said, and I accept, that both Mr Gava and Mr Lomax led the discussion on this topic and that he could not recall Mr Kalem or Vern contributing to it.
The officials then raised the topic of the CFMEU flag on the crane. The discussion on this topic was mostly by Mr Kalem, with some support from Vern. The conversation was to the following effect:
Mr Kalem: Why isn't the CFMEU flag on the crane hook?
Mr Crabb: It's fixed to the machine deck on the crane where it is secure and that is where it will stay.
Mr Kalem/Vern: Every crane in Melbourne's got it, every crane in the country has it except for you. We want the flag flying.
Mr Crabb said that both Mr Kalem and Vern had made the second statement in this passage, albeit at different times during the discussion.
Mr Gava: Why isn't the flag on the hook? We want the flag on the hook.
Mr Crabb: It's on the machine deck. That's where it is staying. We are not putting it on the hook.
Mr Kalem: If you don't put it up there we'll bring back ten brothers tomorrow and stop the job.
Mr Crabb: You do want you've got to do, but the flag isn't going up.
One of the officials: We're not leaving until it's on.
Mr Crabb said, and I accept, that, while the above exchange was occurring, the other CFMEU officials were making statements such as "this is bullshit mate", "just chuck it up there" and "if you don't do it, we will". He agreed that neither Mr Gava nor Mr Lomax had become "too involved" in the discussion about the flag and that it was mostly Mr Kalem and Vern who had spoken.
It was put to Mr Crabb in his crossexamination that, by the words "you do what you've got to do", he had conveyed that, if Mr Gava was insistent on the flag being on the hook, then that is what was going happen. Mr Crabb rejected that suggestion. He said that he intended by the words not to enter in to any further argument and that if the men proceeded, he was not going to attempt physically to stop them. I accept Mr Crabb's evidence about this and find that neither Mr Gava nor the other CFMEU officials could have understood him to be acquiescing in, let alone authorising, the placement of the flag on the hook.
Mr Crabb agreed that, when interviewed by a Fair Work Building Inspector on 4 November 2013, he had not attributed the words "if you don't put it up there we'll bring back 10 brothers tomorrow and stop the job" to Mr Kalem, but simply to "the Melbourne guys". He maintained nevertheless that it was Mr Kalem who had made that statement. I accept his explanation that it was only on 4 November 2013 after he had viewed the photographs of the CFMEU officials and recalled their respective locations in the Induction Room that he could say confidently that it was Mr Kalem who made the statement about bringing back 10 brothers. As previously indicated, I considered that Mr Crabb was an honest and reliable witness and I accept his evidence about that.
Mr Crabb did not want to have the flag on the hook of the crane because of safety considerations. He considered that dogmen have to be vigilant in watching the hook and load and that a flag flapping around in their line of sight can be distracting.
Mr Crabb said that he felt under pressure to agree to the location of the flag on the hook, but had not felt threatened. He was uncertain at the time as to whether there would be any consequences on the site as a result of his refusal to agree to the CFMEU demand.
At the end of this exchange, the group of five moved onto the site. Mr Crabb called them back, pointing out that some were not wearing the correct PPE. Those who were not wearing the correct PPE left to get these items and returned.
Mr Gava and possibly one other approached Mr DellaTorre who was then working as a dogman on the crane. Mr DellaTorre knew Mr Gava. A conversation took place between them to the following effect:
Mr Gava: Why isn't the flag on the hook of the crane?
Mr DellaTorre: I've been told by my supervisor not to put it there, so we've got it erected at the rear of the crane.
Mr DellaTorre: If you need it in another position, then I have to confer with my supervisor and make sure that he's happy with that.
Mr DellaTorre: We are very busy. We'll do it at the end of the day.
Mr DellaTorre: Well, I need to speak with my supervisor. Give me 10 minutes so that I can finish what I am doing and I'll try to arrange something.
Mr Timms: Only if the boss says it's OK. The flag is up there now, at the back of the crane like you requested, tied to the rail. Why don't I just get the driver to cut one side of it and then the flag will be flying?
Mark Gava has been down here. If you cut the flag on one side, they'll be happy to leave it like that.
Mr Gava: That's not good enough. We want it on the hook.
Mr Timms: Did Brenton [Crabb] say that it was alright?
Mr Gava's statement conveying that Mr Crabb had given approval for the relocation of the flag was false as Mr Crabb had said expressly that the flag was to stay in its existing location. Mr Gava could not have understood him to be saying otherwise.
Mr Timms then radioed Mr Nicholls again and said words to the effect "the Union isn't happy about the flag. They want it on the hook. Just see if you can cut it down and send it down to me." Mr Nicholls gave effect to that request by pulling the chains on the crane up, tying the flag to chains and then lowering the flag to ground level at Mr Timms' location. Mr DellaTorre and Mr Timms then attached the flag to the hook. Work with the crane stopped for 1520 minutes while this occurred.
The group of CFMEU officials watched this occur and took a number of photographs. While the flag was being put on the hook, some of the officials made comments to the effect of "well done boys", "it's finally in its right location" and "we'll be taking photos to show our members". The evidence did not identify the particular members of the group who made those comments.
When Mr DellaTorre finished fixing the flag to the hook, he asked Mr Gava questions to the effect of "so is this what's going to happen to every crane in the State? That they'll all flying on the hook?". Mr Gava did not answer these questions.
Mr Crabb was close by while this occurred but could not hear the conversations between the CFMEU officials or the conversations between Mr Gava, Mr DellaTorre and Mr Timms. He took photographs of the CFMEU officials. Two of his photos and one taken on behalf of the CFMEU were tendered. These show that Mr Gava, Mr Kalem, Mr Lomax, Vern and Leo were present when the crane stopped work and the flag repositioned to the hook.
The CFMEU officials left the site at about 3 pm. As they were walking off the site, Mr Kalem said to Mr Crabb words to the effect of "the flag had better be up there tomorrow or there will be trouble".
65. The flag was removed from the crane at Mr Crabb's direction on the following morning."[9]
[12] Only some of the conduct described above relates to the s.500 contravention.
[13] In considering the pecuniary penalty that should be imposed on Mr Kalem for his contravention of s.500 of the Act, and in fixing $1,500.00 as the appropriate amount for the penalty, his Honour said the following:
Penalties are to be imposed on Mr Kalem in respect of his contraventions of ss 348 and 500 at the Flinders University site and for his involvement as an accessory in Mr Gava's contravention of s 348 at the same site. Although Mr Kalem was a member of the group which entered the TAFE site on the same day, the Director did not allege that he (or Mr Lomax) had contravened the FW Act by that entry.
The circumstances of Mr Kalem's contraventions are set out in the same paragraphs of the Liability Judgment to which I referred in relation to Mr Gava.
On my findings, Mr Kalem was one of the members of the group who took the lead in insisting that the CFMEU flag be flown on the site crane. During the morning visit, he told Mr Crabb, "we want the flag flown ... it better be flying by lunchtime". In the afternoon visit, Mr Kalem told Mr Crabb, "if you don't put [the flag] up there we'll bring back 10 brothers tomorrow and stop the job". Later, just before leaving the site at 3 pm, Mr Kalem told Mr Crabb, "the flag had better be up there tomorrow or there will be trouble".
Mr Kalem's conduct in contravention of s 500 comprised his entering the Flinders University site without having provided a notice of entry and without having obtained permission to do so, remaining on the site for an hour and 40 minutes, and distracting workers by speaking to them while they were carrying out their work.
Mr Kalem commenced employment as an organiser with the CFMEU in February 2013. He was granted an entry permit by the FWC in March 2013. Although the subject contravention occurred only eight months later, it is to Mr Kalem's credit that, as at 30 October 2013, he had not been found to have contravened industrial legislation on any previous occasion. Nor, for that matter, has he been found to have contravened industrial legislation since that date.
Unlike Mr Gava, Mr Kalem did not admit his contraventions and so credit cannot be given to him on that account.
The respondents submitted that all of Mr Kalem's contraventions should be regarded as having occurred during a single course of conduct. For the reasons which I gave in relation to Mr Gava, I do not consider it appropriate for Mr Kalem's contraventions of s 348 and s 500 to be treated as incidents in a single course of conduct.
Mr Kalem's liability pursuant to s 550 of the FW Act for his involvement in Mr Gava's contravention of s 348 stands differently. I consider it appropriate to regard Mr Kalem's own conduct contravening s 348 and his conduct in being knowingly concerned in Mr Gava's contravention of the same provision to form part of the one transaction. Both were contributing, almost simultaneously, to the coercion of Mr Crabb. By his statements, Mr Kalem was himself coercing Mr Crabb, but also lending support to the coercion of Mr Crabb by Mr Gava. In these circumstances, I consider that Mr Kalem's conduct should be regarded as part of a single course of conduct. This will permit account to be taken of the aspects of his conduct which were common to each contravention, and thereby to avoid penalising twice for the same conduct.
I will give effect to this conclusion by imposing separate penalties in respect of the three contraventions, but a reduced penalty in respect of Mr Kalem's liability pursuant to s 550.
The Director submitted that a penalty in the range $1,500$2,500 was appropriate in respect of Mr Kalem's contravention of s 500, a penalty in the range $1,000$1,250 in respect of his contravention of s 348, and a penalty of $1,000$1,250 in respect of his liability as an accessory. The respondents submitted that a single penalty in the range $1,200$1,800 was appropriate.
131. I consider penalties of $1,500 to be appropriate in respect of the contraventions of s 500 and s 348 and a penalty of $750 in respect of Mr Kalem's accessorial involvement in Mr Gava's contravention of s 348."[10]
[14] The gravity of Mr Kalem's contravening conduct, so far as it is relevant for the purposes of fixing a penalty, is reflected in the observations of his Honour and in the size of the penalty imposed on Mr Kalem relative to those imposed on other officials also found to have contravened s.500 of the Act during their entry to the Flinders University Site[11] and relative to the maximum penalty that may be imposed for the contravention.
[15] The starting point is to understand that the happening of an event identified in ss. 510(1)(a) to (f) of the Act since the date on which a relevant entry permit was issued to a permit holder, results in a suspension or revocation of the relevant permit or permits, except in the limited circumstances described in ss. 510(2) or (3). The evident purpose of the provision is thus to ensure that, generally, the licence to enter premises conferred by an entry permit will be suspended or revoked if the conduct of the permit holder results in the happening of one or more of the enumerated events. For present purposes, the relevant exception to that general consequence is satisfaction by the Commission that the suspension or revocation would be harsh or unreasonable in the circumstances.
[16] The decision in Parker and others[12] (Parker) provides some guidance as to the exercise of the power under s.510 of the Act. In particular, Parker provides guidance as to some of the circumstances to take into account in the exercise of the discretion to not suspend or revoke a right of entry permit because the consequence of doing so would be harsh or unreasonable.
[17] In Parker, Boulton J had regarded the following matters as relevant:
● the nature and gravity of the underlying contravention of Part 3-4;
● the impact that the revocation or suspension of the entry permits might have on the Organisation, its members and the permit holder;
● whether training has been undertaken by the entry permit holders since the events; and
[18] Whilst this is not an exhaustive list, I accept that these matters are relevant to the exercise of power under s.510 of the Act. Neither the Commissioner nor the CFMEU submitted otherwise, although the Commissioner contended that additional relevant matters include, whether the permit holder has demonstrated genuine remorse for the contravening conduct and other relevant findings of misconduct against the permit holder.[14] I will return to these matters later in these reasons.
[19] It is accepted that the power of the Commission under ss. 510(1) and 510(2) is to be informed, not by the need to punish a permit holder, but rather by the need to establish or maintain a balancing of rights and obligations between employees, registered organisations, occupiers of premises and employers. The power in s.510 is protective and corrective, not penal. It is not directed to punishing a permit holder, his or her organisation or ultimately the workers whose interests the permit holder might represent.
Would it be harsh or unreasonable in the circumstances to revoke or suspend the Permit?
[20] For Mr Kalem and the CFMEU, it was contended that the following circumstances are relevant to the question of unreasonableness.[15] First, the matters relevant to the proceedings happened almost four years ago.[16] Secondly, Mr Kalem was, and has been, of good behaviour for a considerable period of time before and after the contravention.[17] Thirdly, Mr Kalem is contrite about what he did, that he has explained how he became involved in the contraventions and that he has promised that he will not engage in contravening conduct again.[18] It was contended that although, when viewed individually, these factors may not be indicative of unreasonableness, together they strongly suggest that taking further action against Mr Kalem would be unreasonable.[19]
[21] I consider that a revocation or suspension of Mr Kalem's entry permit would be unreasonable in the circumstances if a suspension or revocation was not guided by reason or sound judgment or if it was irrational. Such action might also be unreasonable if a suspension or revocation was not in accordance with practical realities of the circumstances, or was not appropriate in the circumstances, or was excessive, immoderate, or exorbitant in the circumstances_._
[22] Without rehearsing the evidence given by Mr Kalem, I accept that he is now contrite and that he is unlikely to engage in contravening conduct again, although I note that he did not admit his contravening conduct in the relevant proceedings,[20] and that the contrition he expressed before me was not evident in the relevant proceedings before Justice White. As his Honour observed:
"Although some respondents admitted their contraventions, none has made any expression of regret, apology or contrition; apart from the so-called corrective action arising from the consent to the FWC orders on 18 February 2015, none has identified any action it or he has taken to avoid further contraventions in the future; and none has even made a statement of a determination to ensure that it and he complies with s 500 in the future."[21]
[23] I accept that some time has passed since the contravening conduct and that during this time Mr Kalem appears not to have engaged in any relevant contravening conduct. I am prepared to accept that these are all matters going to the circumstances and that they weigh in favour of a conclusion that revocation or suspension would be unreasonable in the circumstances.
[24] I also regard as a relevant circumstance that the contravention occurred only a few months after Mr Kalem had commenced employment with the CFMEU and consequently his inexperience or naivety is likely to have contributed to his conduct. I have also taken into account the character evidence given in statements that form part of the evidence before me.[22] These matters have weighed in Mr Kalem's favour in my assessment as to the genuineness of his contrition and the likelihood of Mr Kalem engaging in any further contravening conduct.
[25] Against all this weigh other factors. First, although Mr Kalem has undertaken further training, the extent to which that training has had a material positive impact on his understanding of his wrongdoing or on his rights and obligations as a permit holder, judging by some of the answers he gave during cross-examination, is to be doubted.[23] This is a circumstance that I do not weigh in favour of the permit holder.
[26] Secondly, there is the nature and gravity of the contravening conduct. Viewed in isolation, the s.500 contravening conduct in which Mr Kalem engaged, although an unlawful interference with another's proprietary right and right to engage in a business activity unimpeded by the conduct, was not particularly egregious. However, as the Commissioner points out, in assessing the gravity of Kalem's conduct, it is relevant that the conduct in which Mr Kalem engaged occurred with other CFMEU officials at the Flinders University Site and was part of a multi-site campaign by the CFMEU, involving four separate sites with conduct of a similar kind with close temporal proximity. As Justice White observed:
". . . in late October 2013, the CFMEU had decided upon a form of concerted action which involved deliberate entry onto Lend Lease building sites without providing a notice of entry. It is not necessary to make findings about the purpose of the campaign but I note that, on several occasions during the subject entries, reference was made, whether expressly or by implication, to the CFMEU wish that Lend Lease employ a permanent CFMEU delegate on each site. Whatever its purpose, I am satisfied that the CFMEU and its officials were engaged in a concerted campaign at Lend Lease sites in Adelaide in deliberate defiance of the requirements in the FW Act regarding the exercise of rights of entry. I agree that the conduct of the respondents on 30 and 31 October 2013 should be assessed in that light. It means that the contraventions are to be regarded as deliberate and pre-meditated. This is a significant matter of aggravation.
The respondents did not concede that their conduct at the Lend Lease building sites was the implementation of a concerted campaign. They did not, however, advance any submission to the contrary."[24]
[27] Thirdly, and also relevant to the nature and gravity of Mr Kalem's conduct is the impact of the contraventions. White J referred to the CFMEU's campaign at several sites, including Mr Kalem's conduct at the Flinders University Site as follows:
"The Director did not allege that Lend Lease suffered quantifiable economic loss or damage at any of the four sites by reason of the unlawful entries. It is, however, appropriate to take into account that senior managers at each site were distracted from their normal duties by having to deal with the CFMEU officials. In some cases, the periods involved were relatively short but in others, for example, at the Adelaide Oval site on 30 October 2013, the period extended over several hours. The distraction of the managers from their duties included the time they later spent in making reports to their upper management concerning the unlawful entries, but the evidence did not disclose the times involved in doing so.
In addition, workers carrying out their normal duties at each site were distracted from their work by the CFMEU officials speaking to them. In relation to the Flinders University site, I will mention separately the stoppage of work with the crane while the CFMEU flag was relocated.
Finally, it is appropriate to keep in mind in each case the affront to the rights of Lend Lease associated with each of the unlawful entries. At some sites this was more obvious than at others. The CFMEU officials acted in defiance of the requirements of Pt 3-4 of the FW Act and, with the possible exception of the entry at the Convention Centre site, in a way which was dismissive of the objections of the Lend Lease managers. Their conduct was a subversion of the balancing of the rights and interests sought to be achieved by Pt 3-4 to which I referred earlier and an affront to the authority of Lend Lease and of its managers."[25]
[28] Viewed in this way, the nature and gravity of the conduct was serious contravening conduct and weighs strongly against a conclusion that the default position of suspension or revocation should be departed from on the ground that such an outcome would be unreasonable or harsh in the circumstances. This would also be consistent with the objects of Part 3 - 4 of the Act to which effect in part is given by s.510(1).
[29] Mr Kalem and the CFMEU also contended that Mr Kalem's personal circumstances and the fact that a lengthy period of suspension may see him lose his job suggest that suspension or revocation would be harsh. I am not persuaded on the evidence that there is any real prospect of Mr Kalem losing his job as an organiser in the event that the entry permit currently issued to him was suspended or revoked, except perhaps in the case of a lengthy period of suspension or lengthy period of a ban on the issue of any further permit to Mr Kalem.
[30] Mr Kalem gave evidence that he held discussions with Ms Jane Calvert, the divisional Secretary of the division of the CFMEU in which he is employed. Mr Kalem's evidence was that during those discussions, Ms Calvert told him that he may lose his job if his permit was suspended or revoked.[26] That a consequence of engaging in an unlawful activity whilst carrying out employment duties as an organiser, might be a suspension of entry rights and subsequent termination of employment, should not come as any particular surprise. However, if the CFMEU wish to seriously advance a proposition that the CFMEU will dismiss an organiser who loses his or her entry permit by suspension or revocation because they have engaged in particular unlawful conduct, then I would expect the relevant authorised official of the CFMEU to come to the Commission and give that evidence. Ms Calvert did not come to give that evidence and the extent to which it is likely that Ms Calvert would give effect to that which Mr Kalem says she told him, cannot be tested and Mr Kalem's evidence in this regard is given no weight.
[31] Mr Kalem also gave evidence that he currently lives with his parents and that he is able to assist them financially with their expenses and that he is repaying a mortgage on a number property, presumably one in which he does not live.[27] He said that if he lost his job he would suffer financially as a consequence.[28] I give this evidence no weight because it is contingent upon a premise that Mr Kalem lose his job in the event that his permit was suspended or revoked. For the reasons given above, that premise has not been made out. Mr Kalem's evidence about the other possible consequences of a job loss[29] is also given no weight for the same reason.
[32] A further matter that weighs against a conclusion that a suspension of revocation would be harsh in the circumstances is the fact that Mr Kalem did not pay the penalty imposed on him by the Court. The CFMEU paid the penalty.[30]
[33] The inconvenience that will be caused to Mr Kalem and to the CFMEU in terms of his and its capacity to service and represent members in the event that the right of entry permit is suspended or revoked whilst relevant, is a matter that carries little weight in the circumstances, particularly those described by White J in the Penalty Decision relating to Mr Kalem's conduct being part of "concerted action which involved deliberate entry onto Lend Lease building sites without providing a notice of entry."[31] There seems to me to be a guaranteed method to ensure that permit holders and their organisations are not curtailed in their representation of members by the loss or suspension of entry permits - comply with the law.
[34] The Commissioner contended that in addition to Mr Kalem's conduct contravening s.500 of the Act at Flinders University Site on 30 October 2013, a relevant matter in assessing whether it would be harsh or unreasonable to revoke or suspend Mr Kalem's entry permit is the findings of Justice White in the Liability Decision as to Mr Kalem's contraventions of s.348 of the Act. I do not accept that this is a matter I should take into account in this case for two reasons. First, I have already taken into account the conduct in assessing whether Mr Kalem is a fit and proper person to hold an entry permit and I concluded, notwithstanding the contravening conduct, taking into account the other permit qualification matters, that he was a fit and proper person to hold an entry permit.[32] The Director was invited to make submissions in that proceeding, but he did not. Secondly, the circumstances which enliven s.510(1) of the Act are all concerned with contravening conduct by a permit holder of right of entry laws. Taking into account a non-right of entry contravention in the circumstances, in assessing whether it would be harsh or unreasonable to suspend or revoke a right of entry permit bears the hallmarks of punitive action rather than protective. To be clear however, I am not suggesting that such considerations would never be relevant to an assessment under s.510(2) of the Act.
[35] For the reasons given above I do not consider that any of the matters to which Mr Kalem and the CFMEU have pointed lead to a conclusion that it would be harsh in the circumstances to suspend or revoke Mr Kalem's entry permit. When I consider all of the relevant circumstances as a whole, I am not persuaded that the matters that I have identified as weighing in favour of a conclusion that it would be harsh or unreasonable in the circumstances to suspend the permit outweigh the matters identified which go the other way. I am therefore not persuaded that it would be unreasonable in the circumstances to suspend the entry permit for the minimum suspension period specified in s.510(4)(a) of the Act. I need not express a view as to whether it would be unreasonable in the circumstances to revoke the entry permit because I do not propose to do so.
[36] Clearly s.510(1) of the Act provides the Commission with the discretion to decide whether in a particular case revocation or suspension of an entry permit should occur. It seems to me that similar considerations to those, which arise on the question of whether suspension or revocation would be harsh or unreasonable in the circumstances, are appropriate considerations here. In addition, there is the consideration of the consequence of revocation compared with suspension. Revocation will require an organisation to later apply to the Commission for the issue of a permit and require satisfaction that the proposed permit holder is a fit and proper person to hold a permit. Suspension, on the other hand, will usually result in the permit holder being able to immediately exercise his rights pursuant to the permit once the suspension period has passed.
[37] I do not accept the Commissioner's submission that in light of Mr Kalem's contravening conduct and the circumstances in which Mr Kalem engaged in the conduct that a mere suspension would be inadequate. I consider for the reasons that follow that a suspension for a period of three months is appropriate.
[38] First, this will be the first occasion on which the Commission has taken action under s.510(1) against Mr Kalem. I accept that the presumptive minimum suspension period of three months should only be departed from with good reason and I am not persuaded that there is a case for a departure in this matter.
[39] Secondly, while the contravention by Mr Kalem on 30 October 2013 was serious, it was not of the most serious or grave kind. That this is the case is reflected in the penalty imposed by the Court, which was less than 15% of the maximum penalty available to the Court.
[40] Thirdly, Mr Kalem continuously held a federal right of entry permit from 2013, he has only once been found to have engaged in conduct in breach of his right of entry obligations and he has not engaged in any contravening conduct of which I am aware since the incident on 30 October 2013.
[41] Fourthly, Mr Kalem has undergone further right of entry training since the events of 30 October 2013, apart from the training administered by Ms Dooley.
[42] Fifthly, Mr Kalem has shown contrition for his conduct on 30 October 2013 and has made it clear that it is his intention not to engage in such conduct in the future. He has said this under oath.
[43] I therefore consider that the right of entry permit issued to Mr Kalem should be suspended for a period of three months and that there should be a period equal to the period of suspension during which there will be a ban on the issue of any further entry permit to Mr Kalem.
[44] An Order giving effect to this decision will be separately issued. Mr Kalem is reminded of his obligation under s.517(1)(a) of the Act to return the entry permit that is suspended to the Commission within 7 days from the date the permit is suspended.
For the Commissioner: Mr B Avallone instructed by the Australian Building and Construction Commission
[1] [2016] FCA 413 (Penalty Decision)
[7] Director of the Fair Work Building Industry Inspectorate v Perkovic [2015] FWC 4062
[8] [2016] FCA 1293 (Liability Decision)
[11] The other two officials involved were ordered to pay pecuniary penalties amounting to $1,500.00 each
[13] Ibid at [26]-[28], [33] and [34]
[14] Australian Building and Construction Commissioner's Outline of Submissions, dated 2 August 2017 at [26]
[15] Construction, Forestry, Mining and Energy Union's Outline of Submissions, dated 12 July 2016 at [9]
[22] Exhibit 3, Witness Statement of Mr. Giuseppe Schiavello, dated 17 July 2017 and Exhibit 4, Witness Statement of Mr. Adrian Byl, dated 11 July 2017
[23] Transcript dated 18 September 2017 at PN290 - PN300
[24] Penalty Decision at [71] and [73]
[26] Exhibit 1, Witness Statement of Mr. Muhammed Kalem, dated 12 July 2017 at [27]
[30] Transcript dated 18 September 2017 at PN175 - PN179
Printed by authority of the Commonwealth Government Printer
[2] In Director of the Fair Work Building Industry Inspectorate
Construction, Forestry, Mining and Energy Union[1]
(1979) 143 CLR 499
(1987) 18 FCR 51
(1990) 27 FCR 427
(2012) 203 FCR 389