A CFMEU official has had his right of entry permit revoked and will not be eligible to hold another permit until January 2017 due to his ‘intimidating, bullying and belittling behaviour’ towards a Fair Work Building Industry inspector.
On 19 June, FWC Deputy President Val Gostencnik considered an application by the Director of the Fair Work Building Industry Inspectorate to apply a two-year ban on CFMEU official John Perkovic after the Federal Court issued a penalty of $5,000 for contravening s.500 of the Fair Work Act.
The penalty was issued following a May 2014 incident where Mr Perkovic, along with five other CFMEU officials entered an Adelaide construction site and refused the site manager’s request to present their entry permits.
While at the site, Mr Perkovic also approached a FWBI inspector, shouting repeated abuse including: “you piece of s**t”, “you f*****g piece of s**t” and “you f******g coward, I’d f****n take you to school, you f****n piece of s**t”.
The CFMEU argued that a revocation or suspension of the official’s permit would serve little purpose given it was his first offence and which happened over 12 months ago without further contravention.
However, DP Gostencnik disregarded this saying, ‘I do not accept that the mere passage of time and the absence of any further contravention results in there being little purpose in suspending or revoking the permit for the purposes of safeguarding the rights of occupiers of premises or employers’.
The CFMEU failed to convince DP Gostencnik that revocation or suspension of the permit would be harsh or unreasonable due to the $5,000 penalty being ‘just below the middle of the applicable range’.
DP Gostencnik referred to Mr Perkovic’s actions on the day ‘in combination is aptly described as conduct involving a high level of gravity’.
As part of his response to the CFMEU’s argument that revocation or suspension would cause ‘hardship, disruption and disadvantage to Mr Perkovic, the CFMEU and its members’, DP Gostencnik said: “It 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…”.
DP Gostencnik further pointed to the ‘stark’ juxtaposition of the CFMEU’s submission on the effect no longer holding a permit will have on Mr Perkovic’s ability to deal with safety issues, given the officials conduct was ‘provocative, bullying and intimidating’.
In handing down his decision, DP Gostencnik noted that the minimum suspension period relevant to the ban period is three months, however that in this case that term would be ‘manifestly inadequate’.
“In this case, not only did Mr Perkovic deliberately refuse to meet his basic obligations as a permit holder when asked to do so, but also he proceeded, unprovoked, to use abusive language and physical menace in an attempt to intimidate, bully and belittle an FWBI inspector going about his lawful duties. All this was done under cover of a licence, which deprives the project’s occupier of its proprietary right to otherwise exclude Mr Perkovic from the property over which it has control. In view of this conduct it should be a while before Mr Perkovic is again considered for the grant of such licence,” he said.
DP Gostencnik issued a ban period until 17 January 2017, noting that Mr Perkovic’s entry permit would expire within that time and so the suspension would operate in effect as a revocation.
Click here to read the decision.