ABCC v CFMEU (Pacific Highway Upgrade Case) (No 4)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ABCC v CFMEU (Pacific Highway Upgrade Case) (No 4) [2022] FedCFamC2G 608

File number(s): SYG 2015 of 2020
Judgment of: JUDGE HUMPHREYS
Date of judgment: 4 August 2022
Catchwords: INDUSTRIAL LAW – Fair Work – imposition of pecuniary penalties – consideration of like contraventions.  
Legislation:

Fair Work Act (Cth) 2009 ss 500, 546(1), 550, 793,

Work Health and Safety Act 2011 (NSW) s 119.

Cases cited:

 ABCC v CFMMEU (Pacific Highway upgrade Case) (No 3) [2022] FedCFamC2G 388

ABCC v CFMEU [2015] FCA 226

ABCC v Pattinson (2022) 399 ALR 599

ABCC v Reilly (No 3) [2022] FedCFamC2G 1

ACCC v South Goulburn Co-Operative Limited [2018] FCA 1965

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560

Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276; [2002] FCA 349

CFMMUE V ABCC [2020] FCA 1662

CFMMEU v ABCC (Broadway on Ann case) (2018) 265 FCR 208 at [27]

CFMMEU v ABCC (the Palmerston Police Station Case) [2021] FCA 1418

Director, Fair Work Building Inspectorate v Myles [2014] FCCA 1429

Fair Work Ombudsman v NoBrace Centre Pty Ltd  (in Liquidation) [2019] FCCA 2979

Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301

Mason v Harrington Corporation Pty Ltd [2007] FMCA 7

Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal Plumbing and Allied Services Union of Australia (CEPU) (2001) 110 IR 372

Symons v Paperless Warehousing Pty Ltd (No 2) [2022] FedCFamC2G 504

Division: Division 2 General Federal Law
Number of paragraphs: 74
Date of last submission/s: 26 July 2022
Date of hearing: 26 July 2022
Place: Parramatta
Counsel for the Applicant: Mr Chin of Senior Counsel and Ms Bulut Of Counsel
Counsel for the Respondents: Mr Latham

ORDERS

SYG 2015 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant
AND:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

First Respondent

MR DEAN LESLEY RIELLY

Second Respondent

MR PAUL FITZPATRICK

Third Respondent

ORDER MADE BY:

JUDGE HUMPHREYS

DATE OF ORDER:

4 AUGUST 2022

THE COURT ORDERS THAT:

1.Under section 546(1) of the Fair Work Act 2009 (Cth) (‘the Act”), the First Respondent pay a pecuniary penalty of $100,800.00 to the Commonwealth for the contraventions declared on 23 May 2022, within 28 days of this order.

2.Under section 546(1) of the Act, the Second Respondent pay a pecuniary penalty of $8,820.00 to the Commonwealth for the contravention declared on 23 May 2022, within 28 days of this order.

3.Under section 546(1) of the Act, the Third Respondent pay a pecuniary penalty of $5,040.00 to the Commonwealth for the contravention declared on 23 May 2022, within 28 days of this order.

4.The application for a stay of these orders is adjourned to 9:00am on Friday 12 August 2022.

5.Parties are to file submissions in relation to the stay application on or before Thursday 11 August 2022.

Note: The form of…

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Details
Case
[2022] FedCFamC2G 608
Decision Date

CaseChat Overview and Summary

The case of ABCC v CFMEU (Pacific Highway Upgrade Case) (No 4) was heard by the Fair Work Commission (FWC) where the Commonwealth of Australia sought to impose pecuniary penalties on individuals and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for breaches of the Fair Work Act 2009 (Cth). The application was brought under section 500 of the Act, which relates to the prohibition of unprotected industrial action. The applicants argued that the respondents had engaged in unlawful industrial action during the Pacific Highway Upgrade project, leading to significant disruptions and financial losses. The respondents, however, contended that they had acted lawfully and that the penalties sought were disproportionate.

The central legal issues before the FWC were whether the penalties proposed by the Commonwealth were appropriate and proportionate, and whether the history of similar contraventions by the CFMEU could be considered in determining the penalty. The respondents argued that only contraventions occurring after significant legislative changes in 2017 should be considered, citing the High Court decision in ABCC v Pattinson (2020) 399 ALR 599. The FWC needed to weigh the relevance of historical contraventions against the principle of deterrence and the overall proportionality of the penalty.

The FWC determined that it was entitled to consider the entire history of the CFMEU in relation to contraventions, although the weight given to such history would depend on the circumstances. The FWC found that the tables provided by the Commonwealth, which outlined previous contraventions, were admissible as they assisted in identifying matters with similar facts. The FWC noted that there had been 24 contraventions post-2017 involving a breach of section 500, which it considered in arriving at the appropriate penalties. Despite objections, the FWC held that contrition and remorse, although not the sole factors, could still be relevant in determining an appropriate penalty, in line with the decision in Pattinson.

After considering all relevant factors, the FWC imposed penalties on the respondents. For Mr. Fitzpatrick, a penalty of $5,040.00 was fixed, with a requirement to pay within 28 days. The FWC exercised its broad discretion in determining the penalties, ensuring they were appropriate and proportionate to the conduct of the respondents, and in line with the totality principle. The penalties were to be paid to the Commonwealth.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Court notes that the maximum penalty the Court can impose on each of the respondents for a breach of s 500 of the Act is 300 penalty units. This equates as at 22 August 2019 to:a. $12,600 in respect of Mr Reilly and Mr Fitzpatrick.b. $63,000 in respect of the CFMMEU for each of the contraventions.EVIDENCE TENDERED ON BEHALF OF THE APPLICANT. In an Affidavit sworn 16 June 2022, Cilla Robinson, Solicitor, provided the Court with the following information:a. A list of changes to offices and the names and addresses of the persons holding those offices as at 7 June 2022;b. Financial statements for the CFMMEU as at 31 December 2020;c. financial statements for the CFMMEU for the year ended 31 March 2021;d. two table documents outlining 192 previous matters involving penalties and declarations under industrial laws involving the CFMMEU or its predecessors dating back to approximately 1999, together with a second table outlining a history of s5900 contraventions by the CFMME or its predecessor.e. A “Linked In” profile of Dean Reilly indicating that he has been a Union Official with the CFMMEU since June 2016. Objection was taken by Counsel for the respondents to the tables outlined at point d above. It was submitted that based on the decision of the High Court in ABCC v Pattinson (2020) 399 ALR 599 (“Pattinson”) that the cases outlined were not like contraventions and thus had no relevance to the current matter. It was submitted that only those matters which arose post-2017, when the legislation was changed in relation to accessorial liability, were “like contraventions”: (see; Pattinson at [9]). It was submitted that the current case can be distinguished from others 500 of the Act contraventions, as the Court found that the respondents entered the work site lawfully. It was further submitted that the material in the tables can be given no weight in the absence of a full analysis of the factual issues in each matter. The Court rejects this proposition. The Court is properly entitled to take account of the entire history of the CFMMEU in relation to contraventions. What weight the Court gives that history is a matter for the Court in the task it undertakes to arrive at the appropriate penalty. Clearly, like contraventions will factor more so in considering what is required as an appropriate penalty as compared to contraventions that are not recent and may involve breaches not similar to the one under consideration. It is all a matter of weight in the ‘instinctive synthesis’ process involved in arriving at an appropriate penalty. The Court has taken the time to peruse those matters post-2017 and identify those matters that involve similar facts. The table simply simplifies the task of the Court in doing so. The Court does not rely upon the summaries of the cases within the second table as the only source of information. The Court notes n\however that there have been 24 contraventions post 2017 involving a breach of s500. For these reasons the Court admitted the Tables into evidence. THE APPLICANT’S SUBMISSIONS

Decision

Reasons for decision

No evidence is before the Court in relation to his financial circumstances and capacity to pay a pecuniary penalty. The Court assumes that he has a relatively modest income but has the capacity to pay whatever penalty the Court fixes.CONCLUSION Taking account all of the relevant factors, the Court fixes a penalty in respect of Mr Fitzpatrick of $5,040.00. Each of the above penalties is to be paid within 28 days of the Court’s order. The penalties are to be paid to the Commonwealth.

Ratio Decidendi

Legal Principle Established

A significant issue arose as to the issue of contrition and remorse. Counsel for the respondents submitted that post-Pattinson, contrition and remorse were no longer relevant considerations. It was submitted that deterrence was the only object in a civil penalty case (see; Pattinson at [16]), and that the considerations formulated in Mason v Harrington Corporation Pty Ltd [2007] FMCA in so far as they relate to contrition and remorse are no longer good law. The Court does not accept this submission. The following appears at [47] in Pattinson:The penalty that is appropriate to protect the public interest in deterring future contraventions of the Act may also be moderated by taking into account other factors adverted to by French J in CSR [Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at [52]. For example, where those responsible for a contravention express genuine remorse for the contravention, it might be considered appropriate to impose only a moderate penalty because no more would be necessary to incentivise the contravenors to remain mindful of their remorse and their public expressions of that remorse to the Court.CONSIDERATION The Court has a broad discretion as to penalty. In Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301 Bromwich J summarised how the discretion is to be approached at [36], as follows:1. Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.2. Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the FW Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person. 3. Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did.4. Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation.5. Consider the overall penalties arrived at, including by reference to those which may be proposed by the FWO (as permitted by Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (CFMEU Civil Penalties Case) at [64]) and what is proposed by the respondents, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary: see Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [23]. [71] and [102].