Mr Nigel Davies [2019] FWC 2022 | Case summary

[2019] FWC 2022

Mr Nigel Davies [2019] FWC 2022 | Case summary | Zoe

[1] Mr Nigel Davies is an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). On 5 March 2014 Mr Davies was issued a right of entry permit under s 512 of the Fair Work Act 2009 (the Act). His current permit was issued on 3 March 2017 and expires on 3 March 2020.

[2] In August 2018, the Federal Court imposed penalties on Mr Davies in respect of contraventions of the right of entry provisions in the Act. The question for determination in the present matter is whether the Commission must suspend or revoke Mr Davies' entry permit under s 510(1) as a consequence of the imposition of those penalties, or whether the Commission is not required to do so because the exception in s 510(2) applies, namely that it would be harsh or unreasonable to suspend or revoke Mr Davies' permit in the circumstances. The background to this matter centres on events that took place in Bendigo on two days in 2014, which can briefly be summarised as follows.

[3] On 22 July 2014, a health and safety representative at the construction site for the 'Bendigo Theatre' project requested Mr Davies' assistance in relation to concerns he held about the safety of certain scaffolding. Mr Davies entered the site and met with the health and safety representative. He did not provide notice of his entry to the occupier. When asked by the project manager, Mr Simon Ireland, to show his entry permit, Mr Davies refused to do so. The project manager told Mr Davies that he could stay on site if he showed his permit. Mr Davies still did not show his permit and the project manager directed him to leave. The police were called. When they arrived, Mr Davies showed them his entry permit and left the site.

[4] On 29 July 2014, Mr Davies again entered the site in response to a request for assistance from the same health and safety representative. He did not produce his permit and did not follow a direction from the occupier to leave the site.

[5] An important consideration in this proceeding is Mr Davies' state of mind at the time of these entries. Mr Davies says that his understanding at the time was that, because he was entering the site pursuant to 58 and 70 of the Occupational Health and Safety Act 2004 (Vic) ('OHS Act'), he was not exercising entry rights under the Fair Work Act, and was therefore not required to show his federal entry permit. He says that this was also the view of his union and the Victorian Workcover Authority. On 3 November 2016, in proceedings unrelated to Mr Davies, the Federal Court upheld this interpretation of the Act in Australian Building and Construction Commissioner v Powell (Powell No 1).[1] However, on 2 June 2017 the decision was overturned in Australian Building and Construction Commissioner v Powell (Powell No 2).[2]

[6] In March 2016, prior to the decision in Powell No 1, proceedings were brought against Mr Davies and the CFMMEU (then the CFMEU) by the Director of the Fair Work Building Industry Inspectorate in respect of alleged contraventions of the Act. On 23 February 2018, after the decision in Powell No 2, Justice Tracey handed down a decision in which he found Mr Davies to have contravened the Act in the course of his visits to the Bendigo site (Liability Decision)[3]. On 14 August 2018, his Honour issued declarations of contraventions of the Act and imposed penalties in relation to these contraventions (Penalty Decision).[4]

[7] Four contraventions of s 500 were declared to have taken place on 22 July 2014. First, Mr Davies was declared to have contravened s 500 by acting in an improper manner by not providing the entry notice required by s 487; not presenting himself to the site office; not signing the site visitors book; refusing a lawful request by the occupier of the site to produce the entry permit issued to him under s 512 of the Act for inspection and offering no viable explanation for that refusal; and directing foul and dismissive language towards the authorised representative of the occupier of the site when asked to produce his permit ('the first contravention').

[8] Secondly, Mr Davies was declared to have contravened s 500 by acting in an improper manner by refusing to comply with a lawful direction by the occupier of the site to leave the site and offering no viable explanation for that refusal ('second contravention').

[9] The third contravention of s 500 was Mr Davies' having acted in an improper manner by refusing to comply with a further lawful direction by the occupier of the site to leave the site and offering no viable explanation for that refusal; and in response to that direction, saying dismissively 'Why are you following me? Just go away' ('third contravention').

[10] The fourth contravention of s 500 was Mr Davies' acting in an improper manner by placing his mobile phone close to the face of the authorised representative of the occupier of the premises; and persisting in his refusal of a lawful request by the occupier of the site to produce his federal entry permit for inspection and offering no viable explanation for that refusal ('fourth contravention').

[11] The Court also declared that on 29 July 2014 Mr Davies had committed two further contraventions of the Act when attending at and entering the Bendigo Theatre site. Mr Davies was declared to have contravened s 497 of the Act by continuing to exercise a State or Territory OHS right after having refused a lawful request by the occupier of the site to produce his federal entry permit for inspection ('the fifth contravention'). The Court also declared that Mr Davies had contravened s 500 of the Act by acting in an improper manner by refusing a lawful direction from the occupier to leave the site, and refusing a lawful request by the occupier to produce his federal entry permit ('the sixth contravention').

[12] The court ordered Mr Davies to pay pecuniary penalties in the following amounts: $5,000 in respect of the first contravention; $2,000 in respect of the second contravention; $3,000 in respect of the third contravention; $3,500 in respect of the fourth contravention; $2,000 in respect of the fifth contravention; and $3,500 in respect of the sixth contravention.[5]

[13] In addition, the court found that the CFMMEU had, by reason of the operation of s 793 of the Act, when read with s 550, engaged in Mr Davies' conduct and participated in all contraventions save for the fifth, and imposed pecuniary penalties on the union in respect of those contraventions.[6]

[14] On 14 August 2018, the Fair Work Commission initiated consideration of whether the permit held by Mr Davies should be revoked or suspended pursuant to s 510 of the Act. On 22 August 2018, Deputy President Gostencnik made directions and also invited the Australian Building and Construction Commission (ABCC) to attend as an interested party. The matter was then allocated to my chambers on 16 November 2018 and heard before me on 17 December 2018.

[19] The Parliament has determined to compel the suspension or 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 them by reason of the contravention, but subject to exceptions.[9] Relevant in this case is the exception in s 510(2), namely whether the Commission is satisfied that it would be harsh or unreasonable in the circumstances to suspend or revoke the permit. If so satisfied, the Commission is not required to suspend or revoke the permit. Clearly, the consequence of this is that the permit will not be suspended or revoked.

[20] The decision of Parker and othe__rs[10] provides some guidance as to the Commission's approach to s 510(2) and the circumstances that might be taken into account in the Commission's consideration of whether it would be harsh or unreasonable to suspend or revoke a right of entry permit. These include 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 union, its members and the permit holder; whether training has been undertaken by the entry permit holders since the events; and general character evidence.[11] I agree that these matters are relevant to the exercise of power under s 510 of the Act, although this is not an exclusive statement of relevant considerations.

[21] I would make the following further observations. First, I proceed on the basis that the Commission's powers under Part 3-4 are to be exercised with due regard to the object of the Part set out in s 480, and the need to establish or maintain a balancing of rights and obligations between employees, registered organisations, occupiers of premises and employers. Secondly, the Commission's role under s 510 does not have a punitive dimension, whether in respect of the permit holder or the relevant organisation. Where a person has been ordered to pay a pecuniary penalty for a contravention of Part 3-4, the court will have already determined and ordered condign punishment for the contraventions in question. Further, punishment is not ordinarily a function of an arbitral body such as the Commission. The Commission's function under s 510, consistent with the object of the Part, should be understood as being protective and corrective in nature.[12]

[26] A peculiar and significant consideration in this case is that Mr Davies says that his conduct was premised on a misapprehension of the law. He submits that he believed that he was not required to show his permit in the circumstances of his visits to the Bendigo site on 22 and 29 July 2014. This is consistent with his evidence to the Court in the proceedings that resulted in the Liability Decision.[14] Mr Davies admitted to the Court that he did not show his permit, and when asked why he did not do so, said that he had been asked to come to the site by a health and safety representative. He also said that he had 'been asked to come onto the site for a safety concern, and [his] objective was to deal with that.'[15]

[27] In the Penalty Decision, Justice Tracey stated that, although Mr Davies said that he believed he was not required to produce his federal permit in the circumstances, no basis for that belief had been established and that he did not find this explanation persuasive.[16]

[28] Mr Davies appended to his witness statement in the present proceedings an affidavit of Ms Kristen Reid, legal officer of the CFMMEU, in which she explained that, prior to the decision of the Full Court in Powell No 2 in June 2017, the union's view was that a permit holder who was requested by a health and safety representative to provide assistance pursuant to section 58(1) the OHS Act was not exercising a 'State or Territory OHS right' for the purposes of s 494(2) of the Act. Rather, it was the health and safety representative who was exercising any rights by requesting the assistance of a union official. Ms Reid said that it was the view of the union's legal team, and the common understanding among its organisers, that a federal entry permit was not needed in those circumstances.[17] Ms Reid's affidavit attached a copy of correspondence that the union had received from the Victorian Workcover Authority in 2016 in which the Authority confirmed that it shared the union's view of the legal position on this question.[18]

[29] Mr Davies' counsel explained that the affidavit of Ms Reid was prepared after the Liability Decision was handed down and for the purposes of Mr Davies' case in the penalty proceedings, but that it was not admitted into evidence. The Commission however is not bound by the rules of evidence and can inform itself in relation to any matter before it in such manner as it considers appropriate (see ss 590 and 591). I do not apprehend any basis on which I should decline to have regard to it. In my view the affidavit is relevant to the question of Mr Davies' understanding of the law in July 2014 and the reasonableness of that view, and therefore to the question of whether in all the circumstances it would be harsh or unreasonable for the Commission to suspend or revoke his permit.

[30] The ABCC said that Mr Davies' evidence and the affidavit of Ms Reid made no reference to any written legal advice from the union or the Authority prior to 2016 concerning their understanding of the legal position. Nevertheless, Ms Reid said in her affidavit that prior to the decision of the Full Court in Powell No 2 in June 2017 it was the common understanding of the union that the right of entry provisions in the Act did not apply where a health and safety representative sought the assistance of a union official under s 58 of the OHS Act.[19] Further, I note that when the proceedings in Powell No 1 were initiated by the Director of the Fair Work Building Industry Inspectorate in November 2014, the union defended the claims against it and its organiser on the same legal basis as the one Mr Davies says he relied on when entering the Bendigo site some months earlier.[20] This is consistent with what Ms Reid says in her affidavit.

[31] I also note that in his reply statement in the present proceedings, Mr Davies explained that, when he underwent training to obtain his first federal and state permits, run by the ACTU and the Victorian Trades Hall Council respectively, it was never mentioned that his federal permit was relevant to entries under s 58(1)(f) of the OHS Act, and that he thought they were different schemes.[21]

[32] In my assessment, the evidence before the Commission establishes that Mr Davies had a genuine but mistaken belief about the legal effect of s 58(1)(f) when he entered the Bendigo site on 22 and 29 July 2014. That the belief was erroneous only became evident when the decision of the Full Court in Powell No 2 was handed down nearly three years later. Mr Davies' belief was reasonable in the circumstances. It was consistent with his union's understanding of the legal position at the time. It was a belief shared by the Victorian Workcover Authority. The legal argument on which the belief was founded was not without merit. It was accepted by a judge of the Federal Court in the decision of Powell No 1. And when the ABCC appealed that decision, the Victorian Workcover Authority intervened in the proceeding to support the position of the union, contending that the decision of the primary judge was correct.[22]

[33] I note the finding of Justice Tracey that Mr Davies was 'defiant and dismissive in the face of lawful directions that he leave the site'.[23] However, his Honour did not find that Mr Davies acted in defiance of the law. Similarly, I note that the Court found that Mr Davies was determined not to comply with the requests of the occupier,[24] but did not find that he was determined not to comply with the law. Taking into account Mr Davies' explanation in these proceedings of the basis for his belief that he was acting lawfully, I conclude that he did not act in defiance of the law; he believed that he was acting within the law.

[34] Mr Davies' mistake of law is not exculpatory. But it places his conduct in context for the purposes of the present proceeding. He reasonably but erroneously believed that he was acting lawfully and did not consider that the demands made by the occupier needed to be complied with. This consideration should be attributed due weight in considering whether it would be harsh or unreasonable to suspend or revoke Mr Davies' permit.

[35] The ABCC contended that the Commission should take into account the nature and gravity of the contravening conduct. It submitted that Mr Davies' contraventions of ss 497 and 500 involved an unlawful interference with a proprietary right, as well as the occupier's right to engage in business activity unimpeded by the conduct. Further, the Court found six separate contraventions associated with his conduct on two different days.

[36] The ABCC noted the various dimensions to the contravening conduct identified in the Liability and Penalties Decisions. One was the failure of Mr Davies to show his permit. In relation to this, Justice Tracey stated that Mr Davies had asserted an entitlement to unrestricted access to the site without regard to the statutory obligations which attach to such an entry, and that Mr Davies had determined that he would not comply with any request by site management to produce his entry permit. His Honour stated that Mr Davies persisted in that refusal despite multiple requests to him to produce the permit, when he could easily have done so. He had the permit in his possession and later showed it to the police when they arrived at the site. Justice Tracey also noted that Mr Davies did not comply with directions to leave the site and offered no viable explanation for his refusal to comply with Mr Ireland's requests.[25]

[37] However, Mr Davies has explained to the Commission why he did not comply with the direction of the occupier to leave the site. Further, the affidavit of Ms Reid was not admitted into evidence in the proceedings before the Court. However I have had regard to it for the purposes of informing myself about the facts that are relevant to the matters that the Act requires me to determine.

[38] The gravity of Mr Davies' conduct has been assessed by the Court in the context of considering the penalty that should apply to his contraventions of the Act. I am now required to consider his conduct in the context of the evidence before the Commission, in reference to the question of whether it would be harsh or unreasonable to suspend or revoke his permit. In this context, and for this purpose, I consider that Mr Davies' belief that he was acting lawfully lessens the gravity of his conduct.

[39] Mr Davies could have told Mr Ireland exactly why he would not produce his permit or leave the site, but did not do so. However I also note Mr Davies' evidence before me (which I accept) that he did say to Mr Ireland that the health and safety representative had invited him onto the site. This, it will be appreciated, was the essence of the matter, and although Mr Davies may not have framed this statement as a legal justification for his conduct, it was in fact his reason for not showing the occupier his permit. This consideration too, in my estimation, reduces the gravity of the conduct for the purposes of the present proceeding.

[40] It is also relevant to note that Mr Davies' conduct was not motivated to achieve some industrial or other ulterior purpose. Mr Davies' purpose in attending the site was to assist a health and safety representative with concerns in relation to scaffolding. There is no suggestion that those concerns were not genuine. I accept Mr Davies' contention that these matters moderate the gravity of the contravening conduct for the purposes of considering whether it would be harsh or unreasonable to suspend or revoke his permit.

[41] Other aspects of Mr Davies' conduct were not premised on his understanding of the law. As Justice Tracey noted, in rejecting attempts to have him produce his permit, Mr Davies directed foul and dismissive language to the representative of the occupier. Perhaps Mr Davies felt justified in using strong language because he believed he was being asked to do things that could not be required of him. But that does not excuse his bad language.

[42] Another matter that cannot be explained by misapprehension of law is the Court's finding that Mr Davies placed his mobile phone close to Mr Ireland's face when Mr Davies was stepping down from the scaffolding access step. Justice Tracey did not accept Mr Davies' explanation that he was simply recording the height of the step. In his reply statement in the proceedings before me, Mr Davies stated that he denies placing his phone close to Mr Ireland's face, but that he understands that this is not what the court found. Mr Davies' counsel stated, quite properly, that his client did not seek to challenge the factual findings of the Court. Accordingly, it is appropriate that I take into account, in considering the gravity of the conduct, both Mr Davies' bad language and his conduct in putting his phone close to Mr Ireland's face.

[43] The ABCC contended that a further matter weighing against Mr Davies' position that it would be harsh or unreasonable to suspend or revoke his permit was that he has not shown any remorse or contrition for his conduct, nor provided any assurance that he will comply with his lawful obligations in the future. I accept that whether a permit holder demonstrates genuine remorse for a contravention is relevant to the assessment of whether it would be harsh or unreasonable to revoke or suspend the entry permit. And it is true that Mr Davies has not apologised for his contraventions. However he reasonably believed at the time that his entry to the site without showing his permit was lawful. In these peculiar circumstances, I do not regard the absence of an expression of remorse as a significant factor.

[44] Mr Davies has also not expressed remorse for having held his mobile phone close to the face of the project manager. He continues to deny that he did this, although accepts the Court's finding to the contrary, as he must. Mr Davies could have said that he disapproves of, and would not engage in, conduct of this kind, without making admissions about his own conduct. Further, Mr Davies has not apologised for telling Mr Ireland to 'fuck off', although in the proceedings before me, he did say that he should not have used this language. These considerations weigh against Mr Davies in the assessment of whether it would be harsh or unreasonable to suspend or revoke his permit.

[45] I take note of the fact that in the Penalty Decision, Justice Tracey stated that '(i)n the absence of any contrition or the provision of any assurances relating to his future conduct, there are no other mitigatory factors which should be brought to account in his favour.'[26] However there is now before the Commission evidence, submitted for the purposes of considering whether to suspend or revoke the permit and if so for how long, that was not before Court. And as I have explained, Justice Tracey was concerned with the question of penalty for a statutory contravention. I am required by the Act to determine a different question.

[46] Mr Davies contended that over four years have passed since the impugned conduct occurred, and that throughout this period he has not contravened the right of entry or any other provisions of the Act. He submitted that the contraventions in the Bendigo Theatre Case are his only contraventions of industrial legislation and that since those events he has had an unblemished record. The ABCC said that the Commission should give no weight to the fact that it has been four years since Mr Davies' contravening conduct, without substantial evidence as to how the effluxion of time may have reformed his 'previous unlawful propensities'.

[47] The passage of time between a contravening event and proceedings in the Commission following imposition of a penalty by the Court is an ordinary circumstance. The absence of contravening conduct in the interim is something that should be expected, rather than a consideration warranting special weight in favour of the permit holder. I would note however that in my view the evidence does not establish any unlawful 'propensities' on the part of Mr Davies, or, as the ABCC suggested, that Mr Davies' has a 'character that permitted him to contravene the right of entry laws'. The contravening conduct was confined to events on two days and was substantially consequent upon a misapprehension of the law.

[48] Mr Davies also submitted that he has undertaken training since the contravening conduct occurred, and that it is appropriate for the Commission to take this into account. Mr Davies said that he has read and considered the decision of the Full Court in Powell No 2 and understands that entry pursuant to a request for assistance from a health and safety representative under the OHS Act does involve the exercise of a 'State or Territory OHS right' for the purposes of s 494(2) of the Act, and that he is therefore required to comply with the right of entry provisions in the Act. Mr Davies also said that the effect of the Full Court decision in Powell No 2 has been explained to him by a National Legal Officer of the CFMMEU.[27] He said that he has taken steps to understand why he was found to have contravened Part 3-4 of the Act and to educate himself so as to avoid doing so again.

[49] The ABCC referred to the decision of Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland,[28] which noted the link between expressions of regret and the utility of training, particularly in cases involving multiple contraventions. Certainly one might approach with scepticism training directed at behavioural problems associated with contraventions of the Act if there has been no statement of remorse. However, broader behavioural concerns were not at issue in this case. Mr Davies has undergone technical instruction targeted at the particular legal issue that was the confounding factor in his contraventions. In my view this training is relevant and weighs in Mr Davies' favour. Further, although the present case dealt with multiple contraventions, they substantially concerned two related incidents a week apart underpinned by a single legal error. It is not appropriate in this case for the Commission to view Mr Davies' multiple contraventions as recidivistic.

[50] The ABCC submitted that, although Mr Davies says that he now understands the law in light of the Full Court's decision in Powell No 2, he has not provided any assurance that he will act in accordance with it. However, in his first witness statement filed in these proceedings Mr Davies' said that he understands now what are the 'requirements' of the Act 'when I enter a site to assist a health and safety representative under s 58(1)(f) of the OHS Act'. In my view his evidence conveys a clear intention to abide by those requirements.[29]

[51] Mr Davies contended that his contraventions of the Act occurred shortly after he had commenced employment with the union, and that his lack of experience as an official should count in favour of his argument that suspending his permit would be harsh or unreasonable. However, in not showing his permit, Mr Davies was acting in a manner that was consistent with the union's understanding of the legal position. In this respect it is difficult to see how his conduct could be described as reflecting inexperience. It appears from Ms Reid's affidavit that even experienced union officials would have refused to show their permits in these circumstances. Further, the use of inappropriate language is not a matter that I see as being connected to Mr Davies' lack of experience.

[52] I also note Mr Davies' evidence that suspension or revocation of his permit would have an adverse effect on his ability to provide services to members of the CFMMEU whom he represents, and that it would impede him from discharging his duties as a National Assistant Secretary of the Construction and General Division of the CFMMEU in relation to occupational health and safety. However, these are routine consequences of the suspension or revocation of a permit and do not in my view carry significant weight in the circumstances. There was no evidence about special disadvantages that would be suffered by members or Mr Davies as a result of suspension or revocation of his permit.

[53] I return to the schematic considerations referred to earlier, namely that the object of the Part is to balance various rights and obligations, and that the Commission's function in proceedings under s 510 is not punitive but protective and corrective. In my view suspending or revoking Mr Davies' permit in the present matter, with its peculiar circumstances, would not reflect an appropriate balancing of rights and obligations. Further, I do not see any evident correction that would be achieved, given that Mr Davies has undergone appropriate technical training and now understands the correct legal position. Nor would a protective purpose be served, as I do not harbour concern that Mr Davies will again contravene the Act in the way he did in July 2014.

Mr Nigel Davies [2019] FWC 2022 (27 March 2019)

At a glance

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Judgment (61 paragraphs)

Mr Nigel Davies [2019] FWC 2022 (27 March 2019)

Legislation Cited (2)

Cases Cited (2)