Full decision here.
Background
A union official has had his permit to enter sites revoked for a period of three months by the Fair Work Commission. This followed a finding and penalty from the Federal Circuit Court.
The FCC finding that the union official (and the union) acted in an improper manner towards an employee of a pre-cast concrete company.
The union official was fined $4,400, with the union being fined $34,650.
What are the rights of the business?
The Fair Work Ombudsman has produced a useful fact sheet on this subject, but in short, a union official may enter your premises insofar as they have a valid entry permit (issued by the FWC) and do not disrupt the workplace. Click here for the fact sheet.
Discuss Your Employer Rights Today
So what did the union official do wrong?
- The union official “in the company of some other people” entered a particular part of the site and when doing so, came into visual contact with the general manager of the company. The company was a subcontractor working on the project site. It manufactured pre-cast concrete products.
- As the union official approached the general manager, he yelled towards the general manager words to the effect of: “You f**king dog c**t”.
- The union official said, in reference to a hammer that Mr James was carrying, words to the effect of: “What’s the hammer for? You going to smash me?”
- The general manager continued towards the parking area and the union official said words to the effect of: “What are you doing here? Well, if the Project is using [X] beams they’ll probably fall down”. The general manager continued to walk away the union official repeatedly shouted words to the effect of: “See ya, bye! Aren’t you going to say goodbye to us?”
- From a distance of approximately 50 to 60 meters, the another person in the company of the union official yelled words to the effect of: “We’re going to sue you, you grabbed my throat; you f**king dog c**t”.
- The union official spoke in an aggressive manner. He was in a highly agitated state.
- The conduct by the union official was unprovoked.
In the Federal Circuit Court, the company put that the union offical:
- flouted the privileges conferred on him as a federal permit holder and a State OHS permit holder;
- fell short of the standard reasonably expected of someone in his position;
- caused disruption to the operations on the project; and
- shocked Mr James and caused him to feel intimidated, annoyed, embarrassed and targeted.
The judge finding that:
“Whilst I accept the first and second of those submissions, there is no evidence before me, and no agreement to the effect of the other matters. There is no basis for suggesting that [the union official’s] conduct caused disruption on the project or that the general manager was shocked, intimidated, annoyed, embarrassed or targeted.
“[The union official’s] conduct occurred in the presence of employees of the head contractor on the site…The words he used were objectively offensive. They were unprovoked and aggressive…
“[The] conduct was, I accept, antithetical to the rights of entry regime established under the Fair Work Act and was a gross abuse of the entitlements given to [the union official] by his entry permit. His conduct was plainly deliberate”.
The penalty
The judge adding:
“The principal object of pecuniary penalties…is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 at [116].
“A pecuniary penalty for a contravention of the Fair Work Act must be fixed with a view to ensuring that the penalty is not to be regarded by the offender or others as an acceptable cost of doing business. It is important to send a message that contraventions of the Act are serious and not acceptable: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 at [98]. Retribution, denunciation and rehabilitation have no part to play: Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 280 IR 28 at [19]. The amount of the penalty must, however, remain proportionate to the conduct concerned: The Non-Indemnification Personal Payment Case at [22].
“[The union official’s conduct, whilst offensive and aggressive was not prolonged. It did not result in any stoppages or delay to work. No physical aggression was involved. No tangible loss, physical or financial, was caused by his actions”.
“It is relevant to take into account that [the union official] has not contested his liability under the Act for his action, although there has been no other tangible expression of regret, remorse or contrition”.
The legal stuff
Section 500 of the Act provides as follows:
“Permit holder must not hinder or obstruct
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 1: This section is a civil remedy provision (see Part 4-1).
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).”
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. Relevantly, s.510 of the Act provides the following:
“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:
(a) the permit holder was found, in proceedings under this Act, to have contravened subsection 503(1) (which deals with misrepresentations about things authorised by this Part);
(b) the permit holder has contravened section 504 (which deals with unauthorised use or disclosure of information or documents);
(c) the Information Commissioner has, under paragraph 52(1)(b) of the Privacy Act 1988, found substantiated a complaint relating to action taken by the permit holder in relation to information or documents obtained under section 482, 483, 483B, 483C, 483D or 483E;
(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;
(e) a court, or other person or body, under a State or Territory industrial law:
(i) cancelled or suspended a right of entry for industrial purposes that the permit holder had under that law; or
(ii) disqualified the permit holder from exercising, or applying for, a right of entry for industrial purposes under that law;
(f) the permit holder has, in exercising a right of entry under a State or Territory OHS law, taken action that was not authorised by that law.
(2) Despite subsection (1), the FWC is not required to suspend or revoke an entry permit under paragraph (1)(d) or (f) if the FWC is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.
(3) Subsection (1) does not apply in relation to a circumstance referred to in a paragraph of that subsection if the FWC took the circumstance into account when taking action under that subsection on a previous occasion.
Minimum suspension period
(4) A suspension under subsection (1) must be for a period that is at least as long as the period (the minimum suspension period) specified in whichever of the following paragraphs applies:
(a) if the FWC has not previously taken action under subsection (1) against the permit holder–3 months;
(b) if the FWC has taken action under subsection (1) against the permit holder on only one occasion–12 months;
(c) if the FWC has taken action under subsection (1) against the permit holder on more than one occasion–5 years.
Banning issue of future entry permits
(5) If the FWC takes action under subsection (1), it must also ban the issue of any further entry permit to the permit holder for a specified period (the ban period).
(6) The ban period must:
(a) begin when the action is taken under subsection (1); and
(b) be no shorter than the minimum suspension period.”
The object of Part 3-4 of the Act is to be found in s.480 of the Act which provides:
“Object of this Part
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.”
In Maritime Union of Australia v Fair Work Commission 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.’
“As I have observed previously, it is not surprising that the legislature has determined (subject to limited exceptions) to compel the removal or suspension of such powers held by a permit holder 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 of the contravention”.
Commentary
In most cases a union official will act in a responsible manner. If you are doing no wrong, then they ought be treated with the courtesy of a visitor subject to the proviso that they do not disrupt your work. Know your rights and exercise these rights, but in all cases insist on them showing their entry permit. Oh, and ensure that they have knocked on the right door, as unions have rules pertaining what employees they can represent (eg generally speaking, a building union cannot represent a retail establishment).
