Unionist fined but keeps entry permit

The Fair Work Commission has rejected a bid to suspend the right-of-entry permit of a construction union official.

The Fair Work Commission has rejected the building watchdog’s bid to suspend the right of entry permit of a construction union official who was penalised $19,000 for contravening the Fair Work Act.

The Australian Building and Construction Commission wanted the right of entry permit of Nigel Davies suspended for six months after he, another official, Alex Tadic, and the Construction Forestry Maritime Mining and Energy Union were penalised a combined $271,500 by the Federal Court last year.

Mr Davies entered the Ben­digo Theatre project in Victoria on two days in July 2014 at the request of the designated health and safety representative. He ­refused to produce his right of entry permit, despite having it on him.

He told a manager to “f..k off” when asked to leave the site, and held his mobile phone close to the manager’s face.

Mr Tadic also told a manager that he was “not dealing with a f..king pen-pusher”.

Federal Court judge Richard Tracey said the union’s non-compliance with the law was “anathema’’ in a democratic society, and the six contraventions by Mr Davies on two different days were “serious contraventions by the union”.

Mr Davies said he believed he was not required to show his federal permit because he entered the site following a request made under Victorian law.

The commission noted that while Justice Tracey found Mr Davies was “defiant and dismissive in the face of lawful directions that he leave the site”, he did not find that Mr Davies acted in defiance of 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,’’ the commission said.

Mr Davies has not apologised for the contraventions or ­expressed remorse. But the commission noted he had not contravened the law since the 2014 incident and had undertaken training.

“Based on the evidence before the commission, I conclude that Mr Davies did not believe that he was legally required to show his entry permit to the ­occupier of the site in connection with his entries to the Bendigo Theatre premises on 22 and 29 July 2014,’’ commission deputy president Alan Colman said.

“His understanding of the legal position was reasonable, and only later revealed by a decision of the full Federal Court to be wrong. His was not a case of a wilful or reckless contravention of the act.

“His attitude on site was confrontational, and he should not have used bad language, or placed his telephone close to the project manager’s face.

“But he was responding to a request for assistance from a health and safety representative about a genuine safety issue and believed that he was not exercising entry rights under the act, and therefore did not need to show his permit.

“Having regard to all of the circumstances, I am satisfied that the suspension or revocation of Mr Davies’ entry permit would be unreasonable.”