CFMEU organiser John Perkovic has failed in his appeal against the longest entry permit ban order made by the Fair Work Commission (FWC). Members will recall that Mr Perkovic had his right of entry permit revoked until 2017 for breaching section 500 of the Fair Work Act 2009 (FW Act) and was fined $5000 in a decision by FWC Deputy President Val Gosternik following his disgraceful conduct at a construction project in Adelaide, where he was caught on camera abusing and intimidating an FWBC inspector.
Counsel for Perkovic argued that FWC Deputy President Val Gostencnik erred in exercising his discretion under section 510 of the FW Act, and acted beyond the Commission’s power by imposing orders that served to “punish”.
Whilst the full bench decision accepted there was no full bench authority on the operation of section 510, it agreed with the Deputy President’s observation that “ultimately each case will need to be decided according to its particular facts and circumstances”.
Perkovic further argued that Deputy President Gostencnik decision caused him “substantial injustice” and that it was in the public interest that decisions like this be corrected. This shows just how far out of touch with community expectations the CFMEU has become.
Despite accepting the ban would restrict Perkovic’s ability to effectively serve CFMEU members’ interests, the full bench found that “inconvenience does not equate to injustice”.
Nor did it accept the argument that Deputy President Gostencnik had sought to “punish” him for his conduct:
“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 inconvenience. In deciding how to exercise its discretion under s510 it is quite appropriate to have regard to the gravity of the conduct of the permit holder,” said the full bench.
The full bench said it was not persuaded by any of the appeal grounds raised, finding that the Deputy President had given consideration to balancing the rights of employee organisations to represent members with that of an employers’ right to go about their business without conflict or undue influence and refused permission to appeal.
Master Builders is encouraged by the decision of the full bench and strongly supports the efforts of the industry regulator FWBC to hold the CFMEU to account for its unlawful actions.
The case provides further grounds in support of Master Builders call for the Senate to act in the best interests of the construction industry and the broader community, by passing the legislation to reinstate the ABCC.