[2015] FWCFB 5867 The attached document replaces the document previously issued with the above code on 7 September 2015. By amending the signing date to 7 September 2015. Susan Robertson Associate to Senior Deputy President Hamberger Dated: 7 September 2015 f_p_n_1_ f_p_n_2_ 1 Fair Work Act 2009 s.604—Appeal of decision John Perkovic v Director of the Fair Work Building Industry Inspectorate (C2015/4723) SENIOR DEPUTY PRESIDENT HAMBERGER DEPUTY PRESIDENT LAWRENCE COMMISSIONER LEE SYDNEY, 7 SEPTEMBER 2015 Appeal against decision [2015] FWC 4062 and order PR568561 of Deputy President Gostencnik at Melbourne on 19 June 2015 in matter number RE2015/356 – public interest not enlivened – no error – permission to appeal refused. [1] The appellant, John Perkovic, is an official of the Construction, Forestry, Mining and Energy Union (CFMEU). He has sought permission to appeal a decision1 and an order2 of Deputy President Gostencnik, both made on 19 June 2015. The facts [2] The Deputy President’s decision was precipitated by the decision of White J of the Federal Court3 to impose a pecuniary penalty upon Mr Perkovic for contravening s.500 of the Fair Work Act 2009 (Cth) (the Act). [3] White J found that Mr Perkovic had contravened s.500 of the Act by acting in an improper manner. The relevant conduct is described in the following paragraphs of his Honour’s decision: ‘49 At the time the CFMEU Officials [of which Mr Perkovic was one] attended at the Grenfell St Site on 1 May 2014, two Fair Work Building Industry Inspectors appointed under s 59 of the FWBI Act, Mr Flynn and Ms Peters, were also present and acting in their capacity as an Inspectors. 50 When the CFMEU Officials arrived at the Site, they met Mr Kamminga. They each signed the Visitors Register and then entered the Site. At the time they were signing the Register, Mr Kamminga asked the CFMEU Officials, “have you got a right of entry notice? Why are you here? Can we see your permits?” Mr McDermott responded with words to the effect of “You can’t get a right of entry”. Mr Kamminga then instructed the CFMEU Officials to leave the Site but Mr McDermott said “No”. The respondents acknowledged that in the statements just summarised Mr Kamminga was referring to an entry notice under s 487 which complied with s 518 of the FW Act [2015] FWCFB 5867 DECISION f_p_n_3_ [2015] FWCFB 5867 2 and that in referring to “permits”, Mr Kamminga was referring to entry permits issued under s 512 of the FW Act. 51 After Mr McDermott indicated the refusal of the CFMEU Officials to leave, they then proceeded onto the part of the Grenfell St Site on which construction was taking place and entered the building. … 56 Mr Perkovic approached Mr Flynn who was wearing an orange high-visibility vest and a white hard hat. His identification as an FWBI Inspector was visible on his right hand shirt pocket. Mr Perkovic went so close to Mr Flynn that their stomachs were almost touching, if not touching and, at least five times, shouted at Mr Flynn, referring to him as “you piece of shit”, “you fucking piece of shit” and as a “cunt”. Almost immediately after the incident started, Ms Peters commenced videoing. The exchange between the two men included the following: Flynn (to the effect): You’re hindering and obstructing me in the execution of my duty. Perkovic: Do you want a fuckin’ photo, you fuckin’ piece of shit. Flynn: Don’t touch me, get away from me. Perkovic: You’re just about having a heart attack. You’re shitting yellow, you piece of shit. Go fuck … brush your teeth next time, you piece of shit, alright? You fuckin coward, I’d fuckin’ take you to school, you fuckin’ piece of shit. 57 The video shows that Mr Perkovic’s stance and manner was provocative, bullying and intimidating. It is evident that he sought to belittle and humiliate Mr Flynn who, despite Mr Perkovic’s, conduct stood his ground and did not respond in kind. … 63 In Mr Perkovic’s case, his exercise of his right of entry in an improper manner arose from the following: (a) His refusal to leave the Site after being directed to do so by Mr Kamminga; (b) His refusal, using profane language, to produce his entry permit and an entry notice when requested by Kamminga to do so; (c) His failure to provide any entry notice at all as required by s 487 of the FW Act; (d) His conduct in the Flynn-Perkovic incident.’4 The Deputy President’s decision and order [4] Section 510 of the Act provides that the Commission must revoke or suspend a right of entry permit if any of the circumstances in s.510 (1) exists, unless the relevant f_p_n_4_ [2015] FWCFB 5867 3 circumstance satisfies s.510(1)(d) or (f) and the Commission is satisfied that revocation or suspension would be harsh or unreasonable in the circumstances.5 It further provides that if the Commission revokes or suspends a right of entry permit under s.510 (1), then it must also ban the issue of any further entry permit to the permit holder for a specified period.6 [5] In this case, the Deputy President found that Mr Perkovic had been ordered to pay a pecuniary penalty under the Act in relation to his contravention of s.500 of the Act, satisfying s.510(1)(d).7 So much was evident from the decision of White J. The Deputy President decided that it would not be harsh or unreasonable to revoke or suspend Mr Perkovic’s permit. In so doing, he noted Mr Perkovic’s submission that he had not committed any further contraventions in the intervening period of just over a year, but considered that this was outweighed by ‘the gravity of the contravention, the particular nature of the contravening conduct, and the fact that Mr Perkovic has not shown, either before the Court or in proceedings before me, any remorse or contrition, nor offered any statement of regret for that conduct’.8 [6] The Deputy President decided that Mr Perkovic’s existing right of entry permit (otherwise due to expire on 16 January 2016) should be revoked rather than suspended, because he considered it appropriate, given the gravity of Mr Perkovic’s conduct, that ‘in future the CFMEU will need to persuade the Commission that Perkovic is a fit and proper person to hold an entry permit should the CFMEU wish that Mr Perkovic hold a permit again’.9 He further decided that Mr Perkovic should be banned from holding such a permit until 17 January 2017, having taken into account the parties’ submissions on an appropriate ‘ban period’,10 the fact that this was Mr Perkovic’s first contravention,11 the objects of Part 3- 4 of the Act (within which s.510 is situated)12, the gravity of Mr Perkovic’s conduct13 and the fact that he did not appear to show remorse or contrition for his actions.14 He made an order accordingly.15 The grounds of appeal [7] Mr Perkovic’s appeal against the Deputy President’s decision is made on two grounds: ‘1. The Deputy President erred in failing to exercise the discretions under s.510 of the Fair Work Act (Cth) (FW Act) in accordance with the purpose and objects of the section and of Part 3-4 of the FW Act, in that: (a) he took the purpose of the section as being or including to condemn or punish the permit holder; (b) he failed to distinguish between the decision to suspend or revoke the permit from the decision as to the length of the ban to be imposed under s.510(5) of the FW Act, and the differing considerations that apply to each of those decisions; (c) he failed to exercise either of the discretions under the section for the purpose of facilitating or encouraging the offending permit holder to lawfully exercise right of entry under the FW Act. 2. The Deputy President erred in making a decision and order that was unreasonable and/or plainly unjust in all the circumstances.’16 f_p_n_5_ [2015] FWCFB 5867 4 Consideration [8] The appeal is brought under s.604 of the Act, which relevantly provides: ‘604 Appeal of decisions (1) A person who is aggrieved by a decision: (a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or (b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act; may appeal the decision, with the permission of the FWC. (2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so. …’ [9] We therefore turn to consider whether permission to appeal should be granted. Public interest [10] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.17 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest: ‘... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.’18 [11] Mr Perkovic submits that it is in the public interest to have a Full Bench determine how members of the Commission should exercise the discretions provided for in s.510 of the Act, as this has not previously occurred and is a matter of general importance.19 The Director of the Fair Work Building Industry Inspectorate (the Director) submits that this matter ‘does not raise any new or novel point that warrants consideration by the Full Bench’.20 [12] We accept that a Full Bench of the Commission has not previously examined the operation of s.510 of the Act in detail. However, we do not consider this to be the appropriate occasion on which to do so. We were not taken to any evidence that suggested that ‘there is a diversity of decisions at first instance so that guidance from an appellate court is required’21 in respect of this section. We agree with the Deputy President’s observation that ‘ultimately each case will need to be decided according to its particular facts and circumstances’.22 f_p_n_6_ [2015] FWCFB 5867 5 [13] Mr Perkovic further submits that the Deputy President’s decision caused him ‘substantial injustice’, and that there is a public interest ‘correcting decisions that are unreasonable or plainly unjust’.23 He submits that this was his first contravention, that he has not contravened the Act since, that he has recently attended right of entry training and that the other permit holders penalised by White J had not had their permits revoked. Mr Perkovic also says the decision was unjust because ‘the Deputy President wrongly described the incident between Mr Flynn and [himself] as a worst case: there are many circumstances that could be envisioned that could have a higher level of gravity and thus would be ‘more warranting of revocation…’, it was the ‘harshest order made by the Commission to date’ and it would impair his ability to serve the CFMEU’s members. 24 [14] The Director submits that the decision was ‘moderate’ in light of the factors outlined in paragraph [5] above25 and that there was no evidence that the training Mr Perkovic attended has changed his attitude26 nor that he had suffered hardship as a result of the revocation or ban.27 [15] We are not persuaded by the argument that the Deputy President’s decision must have been unjust simply because Mr Perkovic’s behaviour was not as bad as it could possibly have been, or because it is the longest revocation/ban period the Commission has ordered to date. We agree with The Deputy President’s findings about the seriousness of Mr Perkovic’s behaviour. [16] We accept that not holding a right of entry permit will restrict Mr Perkovic’s ability to serve the members of the CFMEU. However, inconvenience does not equate to injustice. We agree with the Deputy President’s comment at first instance that the possibility of having his permit revoked ‘is perhaps something to which Mr Perkovic should have turned his mind before acting in an improper manner when exercising or seeking to exercise those entry rights’.28 [17] We do not consider that the matters raised attract sufficient public interest to warrant the grant of permission to appeal. Other grounds [18] Other than the special case in s.604(2) of the Act, the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if permission is refused.29 [19] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.30 However, the fact that the Commission Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.31 [20] We have already indicated above, in addressing the parties’ submissions on public interest grounds, that we do not consider that the Deputy President’s decision causes substantial injustice to Mr Perkovic. We turn to address the submissions addressing whether it was attended with sufficient doubt to warrant its reconsideration and/or discloses appealable error. f_p_n_7_ [2015] FWCFB 5867 6 [21] Section 510 of the Act provides that the Commission may exercise discretion in several respects. Firstly, s.510 (1) gives the Commission the option to either revoke or suspend the permit in question. Secondly, s.510 (2) provides that if the Commission is satisfied that revoking or suspending the permit would be ‘harsh or unreasonable in the circumstances’, it need not do so, even if s.510(1)(d) or (f) is satisfied. Finally, s.510(4) and (5) confer discretion upon the Commission regarding the period for which a permit should be revoked or suspended and the ban period, provided they meet the lower limits prescribed in s.510(4) and (6). [22] In determining whether to grant permission to appeal a discretionary decision, the following principles set out in House v The King are relevant: ‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’32 [23] Mr Perkovic submits that the Deputy President sought to punish him for his conduct in relation to Mr Flynn and, in so doing, acted upon a wrong principle. He contends that the imposition of a penalty is properly a court’s role, rather the Commission’s.33 This argument is primarily founded on the Deputy President’s comment that Mr Perkovic’s behaviour ‘warrant[ed]… condemnation’.34 Mr Perkovic also relies on the Deputy President’s comments in paragraphs [56] and [57] of his decision and the length of the ban the Deputy President imposed in support of his submission. The Director submits that while the outcome differed, the Deputy President’s approach was consistent with that of Boulton J in Parker35 and therefore not erroneous.36 [24] We do not agree that the Deputy President sought to ‘punish’ Mr Perkovic. It is clear that the intention of the relevant sections of the Act is to protect the right of occupiers of premises and employers to go about their business without undue inconvenience37. In deciding how to exercise its discretion under s.510 it is quite appropriate to have regard to the gravity of the conduct of the permit holder. This is what the Deputy President did. [25] Mr Perkovic further submits that the Deputy President conflated the matters to be considered when deciding whether to revoke or suspend his permit with those to be considered when deciding on the appropriate length of the ban period. We agree with the Director that it is clear from the structure of the Deputy President’s decision that he understood the need to distinguish the two, and further that Mr Perkovic himself acknowledges that similar considerations are relevant to both in any case.38 f_p_n_8_ [2015] FWCFB 5867 7 [26] Finally, Mr Perkovic submits that the Deputy President exercised his discretion without due regard to the purpose of encouraging permit holders to lawfully exercise their right of entry. While the Director concedes that this is a relevant consideration, he submits that general and specific deterrence are also relevant and that in this case, they legitimately outweighed the former.39 [27] The relevant sections of the Act balance the rights of organisations to represent their members in the workplace with the rights of the occupiers of premises to go about their business without undue inconvenience. The Deputy President’s decision had due regard to this balance. [28] We do not consider that the Deputy President’s decision discloses the application of wrong principles or any other appealable error. Conclusion [29] We are not persuaded that the grounds of appeal raised any matters warranting a finding that it was in the public interest to grant permission to appeal. We do not think that the Deputy President’s decision is attended with sufficient doubt to warrant its reconsideration. Nor do we think that substantial injustice may result if permission to appeal is refused. [30] We refuse permission to appeal and dismiss the application. SENIOR DEPUTY PRESIDENT Appearances: H Borenstein of counsel with Y Bakri of counsel and C Kazakoff, solicitor, for John Perkovic. R O’Neill of counsel with M Kelleher, solicitor, for the Director of the Fair Work Building Industry Inspectorate. Hearing details: 2015. 12 August. Melbourne. Printed by authority of the Commonwealth Government Printer <Price code C, PR571180> f_p_n_9_ [2015] FWCFB 5867 8 1 [2015] FWC 4062. 2 PR568561. 3 Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432. 4 Ibid at [49]-[51], [56]-[57] and [63]. 5 Fair Work Act 2009 (Cth) s.510(2). 6 Fair Work Act 2009 (Cth) s.510(5). 7 [2015] FWC 4062 at [2]. 8 Ibid at [23]. 9 Ibid at [50]. 10 Ibid at [52]-[53]. 11 Ibid at [54]. 12 Ibid at [57]. 13 Ibid at [55]. 14 Ibid. 15 PR568561. 16 Form F7 – Notice of Appeal. 17 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-7 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [44]-[46]. 18 [2010] FWAFB 5343 at [27]. 19 Appellant’s outline of submissions at [9]. 20 Respondent’s outline of submissions at [4]. 21 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]. 22 [2015] FWC 4062 at [33]. 23 Form F7 – Notice of Appeal. 24 Appellant’s outline of submissions at [49]. 25 Respondent’s outline of submissions at [42]-[42.7]. 26 Ibid at [42.8]. 27 Ibid at [42.9]. 28 [2015] FWC 4062 at [38]. 29 CFMEU v AIRC (1998) 89 FCR 200; Wan v AIRC (2001) 116 FCR 481. 30 Wan v AIRC [2001] FCA 1803 at [30]. 31 Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [43]; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]. 32 House v The King (1936) 55 CLR 499 at 505. 33 Appellant’s outline of submissions at [35]-[47]. 34 [2015] FWC 4062 at [50]. 35 [2011] FWA 2577. 36 Respondent’s outline of submissions at [42.12]-[42.13]. 37 Section 480 (c) 38 Ibid at [33]-[35]. 39 Ibid at [36]-[40]. f_p_n_10_