RE2015/356, Transcript of Proceedings [2015] FWCTrans 373 (24 June 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052012

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DEPUTY PRESIDENT GOSTENCNIK

RE2015/356

s.510 - Upon referral, revoke or suspend an entry permit

Director of the Fair Work Building Industry Inspectorate

and

Mr John Perkovic
(RE2015/356)

Melbourne

10.09 AM, TUESDAY, 9 JUNE 2015

PN1

THE DEPUTY PRESIDENT: Good morning. Mr Snaden, you're seeking permission to appear for the director?

PN2

MR J SNADEN: I am, your Honour.

PN3

THE DEPUTY PRESIDENT: Mr Bakri, you're seeking permission to appear for the CFMEU and Mr Perkovic?

PN4

MR Y BAKRI: Yes, your Honour. That is so.

PN5

THE DEPUTY PRESIDENT: Is there any objection to permission being granted to either, subject to the question of standing?

PN6

MR BAKRI: No, your Honour. There's no objection to permission being granted.

PN7

THE DEPUTY PRESIDENT: All right. Subject to the question of standing, I'll grant both the director and the CFMEU, Mr Perkovic, permission to be represented by counsel having regard to the complexity of the matter. Mr Bakri, I've noted what the CFMEU and Mr Perkovic say in relation to standing. I've also noted the decision of Watson VP in a related matter.

PN8

What I propose to do, unless you wish to add anything in relation to standing, is for the present purposes to simply invite the director to make submissions and to call relevant evidence in relation to the questions that I need to determine under section 510 and deal with the question of standing in the final decision.

PN9

MR BAKRI: Your Honour, we're content with that course. We rely on the submissions that are made in writing.

PN10

THE DEPUTY PRESIDENT: I understand, yes. I haven't had the opportunity to properly consider the matter. As I said, I have read your submissions. I've read Mr Snaden's submissions. I've also taken note of the Vice President's decision in the matter. That's the way I propose to deal with it.

PN11

MR BAKRI: Thank you, your Honour. If I may say one thing about the decision of the Vice President.

PN12

THE DEPUTY PRESIDENT: Yes.

PN13

MR BAKRI: Our contention in relation to that decision is, with respect to the Vice President, the decision is wrong and that you're not bound by it.

PN14

THE DEPUTY PRESIDENT: Yes, I understand that.

PN15

MR BAKRI: Thank you.

PN16

THE DEPUTY PRESIDENT: All right. Thank you, Mr Bakri. Yes, Mr Snaden.

PN17

MR SNADEN: Thank you, your Honour. Before you is an application to revoke an entry permit of an organiser of the CFMEU, Mr Perkovic. The application is dated 4 March 2015 and it's supported by an affidavit of an official of the director or of the Fair Work Building Commission, Mr Steve Pemberton, an affidavit affirmed on 23 April this year. Can I indicate from discussions with my learned friend, there is no objection to my reliance upon the content of that affidavit. Is it your Honour's practice that they be tendered or can I treat that as read?

PN18

THE DEPUTY PRESIDENT: I will mark it. I'm assuming, Mr Bakri, there's not going to be any cross‑examination of Mr Pemberton.

PN19

MR BAKRI: No, there's not.

PN20

THE DEPUTY PRESIDENT: All right. You don't otherwise object to the content of the affidavit?

PN21

MR BAKRI: We don't. I should clarify that ‑ ‑ ‑

PN22

THE DEPUTY PRESIDENT: Without accepting everything that's said in there, there is no evidentiary objection?

PN23

MR BAKRI: There is no objection to the contents, but the question of standing under 510 does have some bearing on the tendering of the affidavit.

PN24

THE DEPUTY PRESIDENT: As I indicated, I think I'm entitled to invite the director to make submissions on such terms as I see fit. I think I indicated at the outset that I will allow the director to lead evidence.

PN25

MR BAKRI: Yes. If I could clarify the respondent's position. It does not object to the affidavit being tendered via the section 507 application.

PN26

THE DEPUTY PRESIDENT: Yes.

PN27

MR BAKRI: But it says that the director does not have standing to make the application under 510 and thus does not have a right as a party to call any evidence in the 510 application.

PN28

THE DEPUTY PRESIDENT: Yes. As I read section 590(2), I can invite the director to make oral and written submissions on such terms and conditions as determined. It seems to me, either by reference to that section or by reference to subparagraph (d), I can admit the evidence on that basis without standing.

PN29

MR BAKRI: Yes. We don't cavil with that proposition.

PN30

THE DEPUTY PRESIDENT: And it's on that basis that I propose to do it. I'm not determining standing and I'm not suggesting that the evidence is admissible because the director has standing.

PN31

MR BAKRI: Yes.

PN32

THE DEPUTY PRESIDENT: I'm proposing to admit it on that basis.

PN33

MR BAKRI: That's understood.

PN34

THE DEPUTY PRESIDENT: Yes, all right. Thank you. On that basis, I'll mark the affidavit of Stephen Phillip Pemberton, comprising nine paragraphs, affirmed on 23 April 2015, together with the attachments thereto, as exhibit 1.

EXHIBIT #1 AFFIDAVIT OF STEPHEN PHILLIP PEMBERTON AFFIRMED 23/04/2015 PLUS ATTACHMENTS

PN35

THE DEPUTY PRESIDENT: Yes, Mr Snaden.

PN36

MR SNADEN: Thank you, your Honour. The application arises as a consequence of some orders made on 23 December last year by his Honour White J of the Federal Court against Mr Perkovic and others. Those orders are attached to the affidavit that has just been tendered, as annexure SPP4. As your Honour will no doubt be aware, they concern some conduct in which Mr Perkovic, amongst others, engaged at a construction site in Adelaide on 1 May last year. The conduct in question is summarised in the reasons for judgment of his Honour White J, which your Honour will find also annexed to that affidavit as annexure SPP3.

PN37

The conduct itself was found to have been engaged in, in contravention with section 500 of the Fair Work Act, in that Mr Perkovic was found to have acted inappropriately during an attempt that he and other officials of the CFMEU made on 1 May last year to enter a building site pursuant to rights otherwise conferred upon them to that end by section 484 of the Act. In consequence of that finding, Mr Perkovic was ordered to pay a penalty of $5000, which he did in February to this year.

PN38

The conduct that attracted that sanction is described in our submission of 24 April and I won't take your Honour to that. Your Honour will have read in those submissions a reference to a particularly ugly exchange that Mr Perkovic had with an FWBC inspector by the name of Seamus Flynn on the day in question. Again, the particulars of that exchange are described in our submission at paragraph 18 and again perhaps in a little more detail by his Honour White J at paragraphs 56 and onwards in the reasons for judgment. There is a video recording of that exchange, which I dare say your Honour has seen.

PN39

THE DEPUTY PRESIDENT: I have, yes.

PN40

MR SNADEN: I agree with my learned friend that there is no need to show your Honour that video now. Given that you've seen it, there is especially no need. It's enough that the description of the exchange is described in the documents I've just mentioned and particularly by White J at paragraphs 56 and onwards in the reasons for judgment. There was also a statement of agreed facts filed by the parties in the proceeding before his Honour and your Honour will find that at annexure SPP5 to exhibit 1.

PN41

THE DEPUTY PRESIDENT: As I understand it, Mr Perkovic didn't make any admissions in relation to the Flynn incident.

PN42

MR SNADEN: That's correct. There were admissions in relation to the failure to produce a permit and failure to leave, but ‑ ‑ ‑

PN43

THE DEPUTY PRESIDENT: Yes.

PN44

MR SNADEN: Your Honour, at annexure SPP7, you'll find a copy of Mr Perkovic's entry permit.

PN45

THE DEPUTY PRESIDENT: It expires on 16 January next year.

PN46

MR SNADEN: Precisely, your Honour.

PN47

THE DEPUTY PRESIDENT: Yes.

PN48

MR SNADEN: It's for that reason that we have sought revocation rather than suspension, although if your Honour is minded to think that a lesser period of exclusion that is, a period less than the seven months that the permit has to run then it is of course open for your Honour to suspend the permit for up to that amount of time. That is, the seven months between now and I think it's 16 January that it expires.

PN49

This application is for revocation of Mr Perkovic's permit and for a ban period to be imposed under section 510(5). That is, a ban period of two years to apply from the point of revocation. That is to say a period to apply where not only is Mr Perkovic's permit to be revoked, but also that he's unable to apply for a new one for that period.\

PN50

Your Honour will be familiar with section 510. It provides for minimum periods of suspension and bans, or what I might conveniently refer to as exclusion periods. We say that two years is the right period in this case and it's right because of the nature and gravity of the conduct in which Mr Perkovic engaged. In particular, what I described earlier as the ugly exchange that he had with Mr Flynn on the day in question. That's one of two battlegrounds in this application.

PN51

The respondent seeks to invoke the Commission's discretion under section 510(2) to be spared an order for revocation on the grounds that to do so would be harsh or unreasonable. Your Honour will have seen by reply submission on Friday last week, we have addressed that point. I anticipate that my learned friend will have more to say about it today and, that being the case, I'll say no more now than simply this: the evidence, such that it is, upon which the respondents rely, falls well short of establishing any relevant harshness or unreasonableness that the revocation of Mr Perkovic's permit might visit.

PN52

The other battleground that has already been spoken about this morning concerns my client's standing to mount the application or, more specifically, the application that is made under section 510. It's said that the powers conferred by section 510 may only be invoked upon the Commission's own application. To that, I make three submissions.

PN53

Firstly, as your Honour has already foreshadowed, this very question was considered by Watson VP only a matter of days ago in a case that also arose out of his Honour White J's decision. Does your Honour have a copy of ‑ ‑ ‑

PN54

THE DEPUTY PRESIDENT: I do, yes.

PN55

MR SNADEN: Your Honour is clearly already familiar with it, but I'll simply refer your Honour to what the Vice President says at paragraph 8 of that decision. In my submission, this question is one that has been if I may say put to bed. My client, being the applicant in the matter before his Honour White J, has an obvious interest in the application that is made under section 510, as his Honour the Vice President says in paragraph 8. That is enough for us establish standing under section 510. That was the first of three points.

PN56

THE DEPUTY PRESIDENT: In the end, does it matter so much? It seems to me that section 510 compels the Commission to act given a certain state of affairs and there's obviously nothing to prevent the director from bringing those state of affairs to the attention of the Commission. It's simply a question of what rights the director might have as applicant as opposed to the discretionary permission that the Commission might give. Is that really the ‑ ‑ ‑

PN57

MR SNADEN: It is, your Honour. Your Honour has beaten me to the second point. This follows from the decision of Boulton J to which the Vice President refers in the Smart case. Whether it's by application or otherwise, once you're informed of the matters about which you are now informed, section 510 compels you either to revoke or suspend the entry permit.

PN58

THE DEPUTY PRESIDENT: Subject to the harshness question.

PN59

MR SNADEN: Subject to section 510(2). Having said that, can I direct your Honour to what Boulton J did say in Re Parker [2011] FWA 2577.

PN60

THE DEPUTY PRESIDENT: Yes.

PN61

MR SNADEN: If your Honour turns to paragraph 17 of that decision, you'll see there Boulton J says:

PN62

In the absence of a specified mechanism for the activation of the powers in section 510, it would seem appropriate that the power to exercise the obligations in the second be implied. As a general concept it would serve no purpose or legislature to insert a provision in legislation with a deliberate intent that it could not be put into operation.

PN63

Later down that paragraph:

PN64

The fact that section 510 does not specifically include a mechanism for the exercise of power contained within it, does not preclude Fair Work Australia from exercising the power in a manner as stipulated in other provisions at part 3.4.

PN65

Then your Honour will see at paragraph 18 the passage that Watson VP extracted in the Smart case, and as I said, your Honour, the effect of those passages is that it doesn't much matter if you are made aware of the matters of which you are now aware by means of application or otherwise. Once you're aware of them section 510 kicks in and it mandates what it mandates.

PN66

THE DEPUTY PRESIDENT: I don't take Mr Bakri to be saying that I don't have power to act.

PN67

MR SNADEN: No, nor do I, your Honour. Can I make the third and final point, which is that even if I'm wrong about all that and your Honour finds that the applicant lacks standing to commence proceeding under section 510, there is an alternative application referred to in the application document, made under section 507 of the Act.

PN68

THE DEPUTY PRESIDENT: Yes.

PN69

MR SNADEN: There's no issue about standing under that section, certainly not as I apprehend. The standing is conferred by that section upon an inspector, and as your Honour might be aware of section 59A of the Fair Work (Building Industry) Act 2012, the directorate of the Inspectorate serves as an inspector under that Act and by section 59C inspectors appointed under that Act have the same powers as inspectors appointed under the Fair Work Act, at least in relation to building matters. I don't apprehend there to be any issue about whether or not this is a building matter.

PN70

The orders that are sought under section 507, at least insofar as it concerns revocation is the same. The only difference is that unlike the mechanism provided for by section 510, it's not mandatory that your Honour make an order for suspension or revocation, it's a matter of the Commission's discretion.

PN71

THE DEPUTY PRESIDENT: There doesn't appear to be a power to impose a ban of any kind.

PN72

MR SNADEN: No, that's right.

PN73

THE DEPUTY PRESIDENT: The permit qualification matters need to be taken into account.

PN74

MR SNADEN: That's precisely right, your Honour.

PN75

THE DEPUTY PRESIDENT: Including, according to the - anyway, yes.

PN76

MR SNADEN: Yes. Can I say on the permit qualification matters that those are not matters about which I would make any submission. They're really for the respondents to identify what they say is relevant and depending on what may or may not be identified, I may or may not have something more to say in reply.

PN77

THE DEPUTY PRESIDENT: Mr Snaden, can I try and - I don't want to cut you off ‑ ‑ ‑

PN78

MR SNADEN: No, no, your Honour.

PN79

THE DEPUTY PRESIDENT: ‑ ‑ ‑ but can I just cut to the chase in this matter.

PN80

MR SNADEN: Yes.

PN81

THE DEPUTY PRESIDENT: In the proceeding before Boulton J in relation to a related matter and in particular in relation to McDermott, it appears that the director and the - the union and Mr McDermott agreed to a suspension period of six months, and an order to that effect was made.

PN82

MR SNADEN: Yes.

PN83

THE DEPUTY PRESIDENT: When one looks at the summary of the conduct said to have been improper in White J's judgment at paragraph 62, and then one looks at the conduct of Mr Perkovic said to have been improper summarised in paragraph 63, apart from some different wording, it appears that the essential difference in the conduct appears to be what's described as the Perkovic incident. If one is to look at questions of relative consistency and outlook, the effect of your submission on a two year ban period is that the Flynn Perkovic incident was so egregious as to warrant effectively an additional 18 months.

PN84

MR SNADEN: Well, yes, I'm not sure it's quite right with respect, your Honour, to say that the conduct was otherwise similar. My recollection was that Mr McDermott was more of a passenger, if I can put it in those terms, on the day in question. He was asked to leave and he didn't leave and he was asked to show his permit and he didn't ‑ ‑ ‑

PN85

THE DEPUTY PRESIDENT: And he used profound language which is also said of Mr Perkovic, this is at 62(d).

PN86

MR SNADEN: Yes.

PN87

THE DEPUTY PRESIDENT: Earlier it was noted that both - at one stage when McDermott and Perkovic were asked to leave or produce their entry permit - I'll just find the passage - this is at paragraph 52(h). When Mr Kamminga requested McDermott, Pitt and Perkovic to produce their right of entry permits and he asked them for their ROE and permits, Mr McDermott and Mr Perkovic replied to this request by saying et cetera.

PN88

MR SNADEN: Yes, well I think I have to correct myself, your Honour, I don't think he was a passenger. I'm thinking of someone else. So your Honour's quite right, with respect, the difference is exchange. If your Honour pleases, those are the submissions.

PN89

THE DEPUTY PRESIDENT: Yes, thank you. Yes.

PN90

MR BAKRI: Thank you, your Honour. There are three preliminary matters. Firstly, your Honour has already been given some copies of authorities, I don't want to weigh you down with additional copies of the same decisions, so I'll hand up those that you don't have.

PN91

THE DEPUTY PRESIDENT: Yes.

PN92

MR BAKRI: Secondly, your Honour, an outline of submissions has been filed on behalf of the respondent. Does your Honour have a copy of those submissions?

PN93

THE DEPUTY PRESIDENT: I do, yes. Just to not weigh me down, I already have Parker so I'll give you that one back.

PN94

MR BAKRI: My apologies.

PN95

THE DEPUTY PRESIDENT: That's all right. I have two decisions; one in relation to Darlaston, decision of Flick J dated 10 December 2010 and another one relating to Mr Darlaston of Flick J, 23 July 2010.

PN96

MR BAKRI: Yes, your Honour. That's what you should have in front of you. Just to explain what those decisions are; the first is the decision on liability and the second is the decision on penalty.

PN97

THE DEPUTY PRESIDENT: Yes.

PN98

MR BAKRI: That takes me to the next housekeeping matter. In paragraph 10 of the respondent's submissions there is a reference to Darlaston v Parker No. 2, which is the penalty decision.

PN99

THE DEPUTY PRESIDENT: Yes.

PN100

MR BAKRI: The decision on liability which is the [2010] FCA 771 should also be referred to at paragraph 10 and flowing on from that change, footnote 14 intends to refer to the FCA 771 decision, the decision on liability.

PN101

THE DEPUTY PRESIDENT: Footnote 14?

PN102

MR BAKRI: Footnote 14, yes.

PN103

THE DEPUTY PRESIDENT: Yes.

PN104

MR BAKRI: I understand that the version that was filed and served of the submissions initially, sir, was missing a page, page 9 I believe.

PN105

THE DEPUTY PRESIDENT: I have page 9.

PN106

MR BAKRI: You have that there? Do you have that? The final housekeeping matter is to deal with the respondent's document. The respondent is not intending to call any witnesses to give evidence but instead relies on various documents, which for ease of reference have been attached to the submissions.

PN107

THE DEPUTY PRESIDENT: yes.

PN108

MR BAKRI: If it's a convenient time I seek to tender those documents now.

PN109

THE DEPUTY PRESIDENT: Any objection, Mr Snaden?

PN110

MR SNADEN: No, your Honour.

PN111

THE DEPUTY PRESIDENT: Shall I mark them as a bundle?

PN112

MR BAKRI: Happy for them to be marked as a bundle, your Honour.

PN113

THE DEPUTY PRESIDENT: Documents that are attached to the respondent's outline of submission marked attachments A to F will be marked as a bundle as exhibit 2.

EXHIBIT #2 BUNDLE OF DOCUMENTS

PN114

THE DEPUTY PRESIDENT: Yes, Mr Bakri.

PN115

MR BAKRI: Your Honour, there's one further document which we wish to tender which I have shown my learned friend just before the hearing this morning, if I may hand that up now.

PN116

THE DEPUTY PRESIDENT: Yes.

PN117

MR BAKRI: Your Honour, this is a document which I'm instructed was distributed by the ACTU as part of the right of entry training which Mr Perkovic undertook a few days ago.

PN118

THE DEPUTY PRESIDENT: Yes.

PN119

MR BAKRI: I seek to tender that document.

PN120

THE DEPUTY PRESIDENT: Any objection, Mr Snaden?

PN121

MR SNADEN: No, your Honour.

PN122

THE DEPUTY PRESIDENT: I'll mark the document prepared by ACTU Organising Centre, entitled Right of Entry Fair Work Act 2009, comprising 16 pages, as exhibit 3.

EXHIBIT #3 DOCUMENT PREPARED BY ACTU ORGANISING CENTRE, ENTITLED "RIGHT OF ENTRY FAIR WORK ACT 2009", 16 PAGES

PN123

Yes, Mr Bakri.

PN124

MR BAKRI: Thank you, your Honour. I want to now address the proposed order that is sought by the director. The director seeks that the respondent have his permit revoked and that he be banned from applying for a new entry permit for an extended period of two years. Based on the research that we have undertaken, such an order has never been made and the contention made by the respondent, which I will develop over the course of this hearing, is that such an outcome is simply not warranted in this present case. At paragraph ‑ ‑ ‑

PN125

THE DEPUTY PRESIDENT: Have there been cases where conduct of the kind that occurred in the incident with the inspector have been considered?

PN126

MR BAKRI: I was unable to find any cases which would fit into that category, your Honour, but there have been cases where a larger penalty has been imposed on a respondent and a more minor outcome has been ordered by the Commission pursuant to 510, and I will come to that.

PN127

THE DEPUTY PRESIDENT: Yes.

PN128

MR BAKRI: At paragraphs 3 to 4 of the respondent's outline, the point is made that the director has erroneously submitted in its outline that the penalty ordered against the respondent was 75.76 per cent of the maximum penalty, and that the director has relied on this to justify the imposition of the order sought. In our outline the point is made that the calculation is incorrect and that when the correct percentage is applied, the director's submissions is just not sustainable.

PN129

THE DEPUTY PRESIDENT: If I go back to the McDermott example the penalty imposed was 20 higher than McDermott, if I put it in those terms.

PN130

MR BAKRI: Yes.

PN131

THE DEPUTY PRESIDENT: McDermott got 4000.

PN132

MR BAKRI: Yes, and that is something that your Honour is entitled to take into account. It's contended by the respondent here that the imposition of the outcome in McDermott in the present case should not be ordered, and that such an outcome would be harsh and also not justified. I'll come to the reasons for that.

PN133

There are really two key issues for determination in this proceeding. Firstly, should the Commission exercise its discretion to grant the revocation order in the terms that's sought by the director, and secondly would suspending or revoking the entry permit be harsh and unreasonable in the present circumstances.

PN134

The respondent contends firstly that the Commission should not exercise its discretion as requested by the director, as doing so is not justified on the material before the Commission. Secondly, that suspending or revoking the permit for any period would be harsh and unreasonable.

PN135

I wish to say one - your Honour, we've had a discussion about standing at the outset of this matter. I wish to say one thing in response to the submissions made by my learned friend, and that's in response to the second proposition that was put by him. That's the submission that it doesn't really matter whether there's standing under section 510 or not. Our response to that is that it does matter, it goes to - it's an important question, as it goes to how the jurisdiction of this Commission is enlivened. Whilst it's not argued that the Commission does not have - ultimately doesn't have jurisdiction to revoke or suspend, it's submitted that how section 510 operates and who has standing is an important question and does warrant the Commission's consideration in the decision.

PN136

I will now turn to the principles which we say ought to be applied in considering section 510. The respondent relies on the decision of Boulton J in Parker and I intend to now address each of the matters that I submit should be considered. The first principle that we say ought to be considered are the objects of the relevant part of the Act, which is part 3.4. It's contended that the objects of part 3.4 and not some other inapplicable principles, such as deterrence of punishment ought to guide the Commission in exercising its functions are section 510.

PN137

Whilst deterrence and punishment are the aims of the imposition of the civil penalty or sentencing in a criminal matter, they are just irrelevant to a consideration of section 510. To put my submission a different way, it's not the job of the Commission to punish a permit holder that's already been punished by the court. It just does not have the jurisdiction to do so. The Commission's task rather is to conduct a balancing exercise ‑ ‑ ‑

PN138

THE DEPUTY PRESIDENT: It's not punishment here that we're concerned about. We're concerned about whether a person who has a licence to otherwise interfere with common law property rights should continue to have that licence.

PN139

MR BAKRI: That's right and the way we put that is we say that the Commission's task is to conduct a balancing exercise, to weigh up the rights and interests of the permit holder, union members, the relevant union, employers in the industry and occupiers in the industry and not - the aim is not to punish the permit holder.

PN140

The director submits that the task of the Commission is to provide an additional sanction and that this is what the Act envisages. It's submitted in response to that, that that submission is misguided. It's contended that given that the relevant contravention occurred over 12 months ago and there's no suggestion of any further allegations of further contraventions of part 3.4, the balancing exercise here favours the retention of the permit.

PN141

I'll now move onto the second principle on which we rely and that's the nature and the gravity of the contravention. It's the respondent's contention that the best measure of the nature and gravity of the contravention is the quantum of the civil penalty that was imposed by White J in the Federal Court proceeding. It was White J who heard and considered the evidence and arrived as to the findings, as to the conduct that had occurred and it was him that considered extensive submissions from the parties as to the appropriate penalty to be imposed. In short, we say that the penalty imposed by White J is the best measure of the seriousness of the contravention. The respondent also contends that outcomes in prior section 510 proceedings ought to be used ought to be considered and used ‑ ‑ ‑

PN142

THE DEPUTY PRESIDENT: The penalty imposed on Mr Perkovic or the penalty imposed on Mr Perkovic and the CFMEU?

PN143

MR BAKRI: It s contended that the penalty imposed on Mr Perkovic ‑ ‑ ‑

PN144

THE DEPUTY PRESIDENT: Is the only relevant matter.

PN145

MR BAKRI: Sorry, your Honour?

PN146

THE DEPUTY PRESIDENT: Is the only relevant matter?

PN147

MR BAKRI: Is one of the relevant matters to be ‑ ‑ ‑

PN148

THE DEPUTY PRESIDENT: I mean so far as penalties are concerned, I should disregard the $100,000 that was imposed on the CFMEU by reason of, amongst other things, Mr Perkovic s conduct.

PN149

MR BAKRI: Your Honour, the problem with considering the $100,000 is that the decision makes it clear that the $100,000 was imposed on the CFMEU not just because of the conduct of Mr Perkovic but a range of officials.

PN150

THE DEPUTY PRESIDENT: Yes.

PN151

MR BAKRI: Therefore, we say that the best measure as to the seriousness of Mr Perkovic s conduct is the penalty that was imposed on him. Another reason for ‑ ‑ ‑

PN152

THE DEPUTY PRESIDENT: If I were to impose a ban, the ban effectively operates as a ban on the CFMEU, not Mr Perkovic. Mr Perkovic can t apply for a permit.

PN153

MR BAKRI: Yes, that s right. The respondent also contends that outcomes in prior section 510 proceedings ought to be considered. At paragraph 19 of the respondent s outline, reference is made to the Flick J decision in Darlaston v Parker. The respondent contends that given that in the corresponding Fair Work Commission proceeding, Boulton J suspended Mr Mitchell s permit for three months, that ought to be taken into account in arriving at the appropriate outcome in this matter.

PN154

Three months was imposed on Mr Mitchell after he had been found by Flick J to have driven a car at a gate behind which a manager was standing, and received a penalty at the upper end of the applicable range, which was 68.18 per cent. In light of the manner in which the Commission exercised its discretion in the Parker decision, it s contended that imposing the type of outcome that is sought by the director in this proceeding would be excessive, inconsistent and unjust. Your Honour, I ll now move to the ‑ ‑ ‑

PN155

THE DEPUTY PRESIDENT: The conduct of Mr Mitchell appears to have occurred before he exercised any right of entry, whereas Mr Perkovic s conduct occurred after entry was obtained.

PN156

MR BAKRI: Your Honour, on my reading, the conduct of Mr Mitchell was found to have been inconsistent with his right of entry obligations, so it was viewed as a breach of the relevant part of the Act. That is the key fact there.

PN157

THE DEPUTY PRESIDENT: Right.

PN158

MR BAKRI: Your Honour, I ll now move to the third principle that we say should be taken into account. That s the impact of the revocation. The respondent contends that the Commission should consider the impact of the revocation or suspension on the union, its members and the respondent, and relies on the submissions that it makes at paragraphs 20 to 29 of its outline. I don t intend to take your Honour through every submission that we have made but seek to expand on two of the contentions made.

PN159

Firstly, the submission made in relation to what we refer to as the FWBC campaign and, secondly, the submissions made in relation to the proposed code. Addressing the FWBC campaign firstly, there s documentary evidence before the Commission in attachment C to the submissions to establish that the inspectorate is actively discouraging builders from inviting or permitting union organisers on site if they don t have an entry permit. The web page clearly states:

PN160

If the union official does not have a right to enter and they are on your site, you should make it clear that they do not have your consent to be on site and request that they leave.

PN161

Now, the director asserts in his reply submissions at paragraph 33 that:

PN162

The inspectorate is properly exercising its power to inform employers in the building industry as to their rights.

PN163

In my submission, it s doing more than that. It s discouraging builders from allowing officials on site where they don t have a permit. In light of that, the effect of employers being discouraged from allowing officials on site without entry permits, on site, is that the consequences of not having a permit are all the more grave.

PN164

It s been accepted by this tribunal that part 3-4 does not operate as an exclusive code, and I refer to the decision of the CFMEU v the Fair Work Commission. I haven t handed that decision up yet.

PN165

THE DEPUTY PRESIDENT: You don t have to persuade me of that point, Mr Bakri.

PN166

MR BAKRI: I don t?

PN167

THE DEPUTY PRESIDENT: You don t need to persuade me of that point.

PN168

MR BAKRI: I need to persuade you?

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THE DEPUTY PRESIDENT: No. You don t need to persuade me on that point.

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MR BAKRI: Okay. Understood, your Honour. I will now address the submission made in relation to the proposed code. The contention is that if the code becomes law it will increase the detriment of not holding a right of entry permit. Now, this is because the code goes further than merely requiring compliance with right of entry obligations under the Fair Work Act. At clause 14(2)(a) it provides that:

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Code covered entities must ensure that officials only enter sites where they have exercised rights under the right of entry scheme

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and that inviting an officer of the union on site would be in breach of the code of practice. Once again, similarly to what we call the FWBC campaign, if the proposed code was to become law it would make the consequences of not having a permit all the more grave and thus is something that should be taken into account.

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I should say that the respondent accepts that if the proposed code never comes law, then this issue will not having a bearing on the impact of the permit being revoked or suspended.

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THE DEPUTY PRESIDENT: So what do you say I should do with that? I mean, I can t proceed upon the basis, can I, that the possibility that something might become law in the future is a factor that I should take into account?

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MR BAKRI: In my submission, it s something that you should take into account in arriving at the appropriate decision.

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THE DEPUTY PRESIDENT: Well, isn t it equally plausible that I take into account the fact that on the present numbers in the senate, the prospect of a code becoming law are remote?

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MR BAKRI: That would be a matter for your discretion and consideration. The fourth ‑ ‑ ‑

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THE DEPUTY PRESIDENT: Presumably your client isn t acting as though the code will become law because I m not aware of many or any agreements that your client has made which would be prospective code compliant.

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MR BAKRI: I m not instructed either way, your Honour. Your Honour, the final principle to which I will refer is the question of any training that Mr Perkovic has undertaken since the contraventions. The respondent contends that the fact that he has undertaken refresher right of entry training ought to be taken into account when considering the appropriate order.

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The director contends that there s no evidence adduced as to what is specifically entailed and what the respondent learnt through the training. I have two things to say in response to that. Firstly, the right of entry course, as provided by the ACTU, has been approved by the Fair Work Commission and, accordingly, the Commission can find that the course includes training as to the rights and obligations of the permit-holder. I refer to section 513(1)(a) in this regard.

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The second thing we say is that we rely on the document that was handed up at the outset of this hearing, which outlines some of the matters which were covered in the training. This establishes that the rights and obligations of the permit-holder are covered in the training. I will now address the application that has been made under section 507. In relation to 507 the director does not advance any submissions which are in addition to the submissions it advances for 510.

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Accordingly, we repeat the submissions that we ve made in relation to 510. It was submitted by my learned friend that it is on the respondent to address the permit qualification matters. I d cavil with that submission. It s the director s application under 507. The only submissions that the respondent needs to respond to are those that have been made. It has not been suggested by the directed that any of the permit qualification matters are relevant, and it s on that basis that we rely on the submissions made in relation to 510.

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THE DEPUTY PRESIDENT: Well, in relation to the permit qualification matters, the penalty that is imposed on the CFMEU is part of well, is in part by reason of Mr Perkovic s conduct, it seems to me that under 513(1)(d) that s a relevant matter.

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MR BAKRI: Yes, your Honour, but the issue here is that the director has made an application under 507 but has not advanced by contentions in support of that application that go to the qualification matters.

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THE DEPUTY PRESIDENT: Yes, I understand that point. My question though is if I am to act under 507, I need to take into account the permit qualification matters and I, therefore, need to take into account and by taking it into account means giving it some weight, the penalty that was imposed on the CFMEU. You might urge me not to act under 507 in your submissions. That s one option. But if I m to act upon it, I m required to take into account the permit qualification matters, and that s one of them.

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MR BAKRI: Yes. The respondent s position is that the Commission should not act on it given that the director has not taken that application very seriously and has not put forward any submissions in support of it. The Commission should exercise its discretion to take no action under that provision and is still to consider the application under the well, the operation of 510.

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Your Honour, in summary, the respondent contends that the Commission should not exercise its discretion, as requested by the director under 510, as such a severe and harsh outcome is simply not justified in the present circumstances. Secondly, that suspending or revoking the permit for any period of time would be harsh and unreasonable.

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THE DEPUTY PRESIDENT: Thank you, Mr Bakri.

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MR BAKRI: Thank you, your Honour.

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THE DEPUTY PRESIDENT: Mr Snaden, I ll invite you to make some submissions in reply if you wish.

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MR SNADEN: Thank you, your Honour. I won t be long. In large part the respondent s submission mirrors the written submission that was provided last week, which we ve addressed.

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THE DEPUTY PRESIDENT: That s why it shouldn t catch you by surprise.

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MR SNADEN: It doesn t. Well, I was going to say, your Honour, not only does it not catch me by surprise, they are things that we ve already responded to.

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THE DEPUTY PRESIDENT: Yes.

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MR SNADEN: With two exceptions, which I ll address now. I say nothing about the bulk of those submissions because I ve already addressed them in reply submissions.

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THE DEPUTY PRESIDENT: Yes.

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MR SNADEN: The two exceptions are these. Firstly, in relation to section 507 the application made under section 507, it s not right to say that we ve made no submission under that section. The submission is that under section 507 it s appropriate that Mr Perkovic s entry permit be revoked, and it s appropriate for precisely the same reasons as it should be revoked for two years under section 510. That is, having regard to the nature and gravity of the conduct.

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Now, true it is that the Commission is required to have regard to the permit qualification matters. What I said earlier was simply this, that those matters by and large are matters that are peculiarly within the knowledge of the respondent. Not all of them. Clearly the fact that he has been ordered to pay a pecuniary penalty is, as your Honour has said, relevant under 513(1)(d).

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We ve not come here armed with a submission that, for example, he s been convicted of any offence against a law of the Commonwealth involving entry or fraud or violence. I don t submit that he has and, if he has, that might be something that comes from my learned friend rather than me. It might not. We don t say that he has ever been convicted of an offence against an industrial law. Again, my learned friend is in a better position to know that than I am.

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Whether he s received appropriate training about the rights and responsibilities of a permit-holder, well, your Honour has received some evidence that he has been. Again, that s not something that I can sensibly lead evidence about. It s a matter for my learned friend. That was the point that I made earlier, simply that to the extent that there were matters that might inform your Honour in relation to the permit qualification matters, it is more likely that they would come from my learned friend. But it s not right to say that we make no submissions under section 507.

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That was the first of the two points. The second was the submission that was made that the best measure of the nature or gravity of Mr Perkovic s conduct was the penalty that was awarded against him. It has to be accepted, your Honour, that that s a good measure of the nature and the gravity of the conduct in which he engaged, but it s not the be all and end all.

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The imposition of a pecuniary penalty by a court, as your Honour is aware, is a function of many things, not all of which will inform your assessment of the nature or gravity of Mr Perkovic s conduct, and not all of which will inform whether or to what extent exclusion from the regime of rights conferred by part 3-4 of the Act is appropriate. Ultimately, your Honour, it s a matter for you. It s an assessment that you have to make based on the statement of agreed facts, the description of the conduct. In particular, the interaction with Mr Flynn and of course the video as your Honour can see for yourself.

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The submission that I make is that this is in total very, very concerning conduct on Mr Perkovic s ‑ ‑ ‑

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THE DEPUTY PRESIDENT: Well, it seems to me that no more need be said about the conduct than White J s description at paragraph 142 of the judgment, which is that his conduct or the incident was particularly egregious. He engaged in sustained intimidating and abusive conduct toward Mr Flynn and created a circumstance that could have easily developed into something more serious.

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MR SNADEN: Indeed, your Honour. Indeed. And conduct that, on my submission, that warrants the exclusion if I can use that term that we seek in this case. As your Honour pleases.

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THE DEPUTY PRESIDENT: Yes. All right. I ll reserve my decision. Can I thank counsel for their written submissions and their elaboration this morning. I also thank you for your brevity. We are adjourned.

ADJOURNED TO A DATE TO BE FIXED [11.05 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 AFFIDAVIT OF STEPHEN PHILLIP PEMBERTON AFFIRMED 23/04/2015 PLUS ATTACHMENTS................................................................................................... PN34

EXHIBIT #2 BUNDLE OF DOCUMENTS....................................................... PN113

EXHIBIT #3 DOCUMENT PREPARED BY ACTU ORGANISING CENTRE, ENTITLED "RIGHT OF ENTRY FAIR WORK ACT 2009", 16 PAGES......................................... PN122