Alfred v Primmer
[2009] FMCA 158
•3 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALFRED v PRIMMER & ORS | [2009] FMCA 158 |
| INDUSTRIAL LAW – Workplace Relations Act 1996 – breaches – civil penalty – consideration of matters relevant to penalty – two breaches arising out of one course of conduct – only one penalty imposed on each respondent – totality principle distinguished. |
| Workplace Relations Act 1996, ss.792, 793, 779, 800, 806, 807, 826 Building and Construction Industry Improvement Act 2005, s.73 Trade Practices Act 1974, s.45D |
| Alfred v Primmer & Ors (No. 2) [2008] FMCA 1476 Construction, Forestry, Mining & Energy Unionv Coal & Allied Operations Pty Ltd (No.2)(1999) 94 IR 231 Kelly v Fitzpatrick [2007] FCA 1080 Hadgkiss v Sunland Constructions (Qld) Pty Ltd [2006] FCA 1566 Hadgkiss v Construction, Forestry, Mining & Energy Union [2007] FCA 524 A&L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy [2008] FCA 466 Pearce v The Queen (1998) 194 CLR 610 Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 Hamburger v Construction, Forestry, Mining & Energy Union [2002] FCA 585 Veen v R (No.2) (1998) 164 CLR 465 R v Armstrong (1996) 1 Qd R 316 Leighton Contractors v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (No.3) [2008] FCA 1426 Cahill v Construction, Forestry, Mining & Energy Union [2008] FCA 495 CPSU, The Community & Public Sector Union v Telstra Corporation Limited [2001] FCA 1364 Financial Sector Union v Commonwealth Bank of Australia (2005) 147 IR 462 Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 ASIC v Australian Investors Forum Pty Ltd (No.3) [2005] NSWSC 1198 |
| Applicant: | GREGORY CHARLES ALFRED |
| First Respondent: | PETER PRIMMER |
| Second Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Third Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH) |
| File Number: | SYG 1222 of 2007 |
| Judgment of: | Cameron FM |
| Hearing dates: | 10 February 2009 |
| Date of Last Submission: | 10 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr I. Neil S.C. with Mr C. Bolger |
| Solicitors for the Applicant: | Bartier Perry |
| Counsel for the Respondents: | Mr J.H. Pearce |
| Solicitors for the Respondents: | Taylor & Scott |
ORDERS
The first respondent pay a penalty of $3,500 for breaches of s.800(1)(a) of the Workplace Relations Act 1996 on 12 October 2006.
The second respondent pay a penalty of $10,000 for breaches of s.800(1)(a) of the Workplace Relations Act 1996 on 12 October 2006.
The third respondent pay a penalty of $10,000 for breaches of s.800(1)(a) of the Workplace Relations Act 1996 on 12 October 2006.
Each penalty be paid to the Commonwealth within 28 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1222 of 2007
| GREGORY CHARLES ALFRED |
Applicant
And
| PETER PRIMMER |
First Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Second Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH) |
Third Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, an Australian Building and Construction Inspector, has brought these proceedings seeking pecuniary penalties be imposed on the respondents for contravention of the Workplace Relations Act 1996 (“Act”).
On 3 November 2008, in an earlier stage of these proceedings, I found that each of the respondents had breached s.800(1)(a) of the Act on two occasions on 12 October 2006. I found that they had done so by advising and encouraging Camarda & Cantrill Pty Ltd (“C&C”), a building and construction company, to prevent Fine Line Painting (Aust) Pty Ltd (“Fine Line”) from working on the second stage of the Kiama High School redevelopment project (“Project”) for a reason prohibited by s.793(1)(k) of the Act.
Specifically, I found that the first respondent, Mr Primmer, first in a conversation with C&C’s site foreman, Mr Thomas and secondly in a conversation with C&C’s occupational health and safety and quality assurance officer, Mr Kennedy, contravened s.800(1)(a) by giving advice and encouragement to C&C to engage in conduct which, if engaged in, would have contravened s.792(5). Because Mr Primmer was an officer and agent of the second respondent (“CFMEU”) and the third respondent (“CFMEU(NSW)”), I further found that the CFMEU and the CFMEU(NSW) were vicariously liable for Mr Primmer’s conduct in question and that by virtue of ss.779(2) and 826(2) of the Act, that conduct was also the conduct of the two unions.
The relevant facts are set out in the reasons for judgment in Alfred v Primmer & Ors (No. 2) [2008] FMCA 1476.
Relevant legislation
Section 807 of the Act provides:
807 Penalties etc. for contravention of civil remedy provisions
(1)The Court, on application by an eligible person, may make one or more of the following orders in relation to a person (the defendant) who has contravened a civil remedy provision of this Part:
(a)an order imposing a pecuniary penalty on the defendant; …
(2)The maximum pecuniary penalty under paragraph (1)(a) is 300 penalty units if the defendant is a body corporate and otherwise 60 penalty units.
(3)….
(4)Each of the following is an eligible person for the purposes of this section:
(a) a workplace inspector;
(b) a person affected by the contravention;
(c)a person prescribed by the regulations for the purposes of this paragraph. …
As an Australian Building and Construction Inspector, pursuant to s.73 of the Building and Construction Industry Improvement Act 2005 (“BCII Act”), the applicant was entitled to make an application under s.807 of the Act.
“Person” is defined in s.806 to include an industrial association. Each of the CFMEU and the CFMEU(NSW) admitted that it was an industrial association as relevantly defined.
Considerations as to penalty
Introduction
Considerations relevant to the determination of whether particular conduct should attract a penalty and, if so, how much that penalty should be, have been referred to in a number of cases such as Construction, Forestry, Mining & Energy Unionv Coal & Allied Operations Pty Ltd (No.2)(1999) 94 IR 231, Kelly v Fitzpatrick [2007] FCA 1080, Hadgkiss v Sunland Constructions (Qld) Pty Ltd [2006] FCA 1566 and Hadgkiss v Construction, Forestry, Mining & Energy Union [2007] FCA 524. However, as Gyles J said in A&L Silvestri Pty Limited v Construction, Forestry, Mining & Energy Union [2008] FCA 466, there are no mandatory statutory criteria. Considerations relevant to this case are:
a)the nature and extent of the conduct which led to the breaches;
b)whether the breaches were properly distinct or arose out of the one course of conduct;
c)the nature and extent of any loss or damage sustained as a result of the breaches;
d)whether there had been similar previous conduct by the respondents;
e)whether the CFMEU and the CFMEU(NSW) had cultures of compliance;
f)whether the party committing the breach exhibited contrition and cooperated with the enforcement authorities;
g)the need for specific and general deterrence; and
h)the capacity of the relevant persons to pay.
The nature and extent of the conduct
On 12 October 2006 Mr Primmer attended the Project site and went on a safety walk. During that walk he went to areas where Fine Line painters were working. After that safety walk, the following conversation took place between Mr Primmer and C&C’s site foreman, Mr Thomas:
Primmer:Fineline Painting have no affiliation with the CFMEU and it looks as though Camarda & Cantrill don’t either. Norm Mogg has court proceedings against him for not paying an apprentice for two days wages and therefore should not have a contract on a government job. The project will be stopped.
Thomas: For how long, do you think?
Primmer: It could be weeks and cost thousands of dollars. Norm Mogg will bring the Taskforce in.
Thomas: And what’s their position with all this?
Primmer:The Taskforce was set up by Johnny Howard to prevent the unions shutting down building sites without good reason. Fineline Painting, Camarda & Cantrill and the CFMEU, you and him (pointing Ian [Kennedy] and me) will be in court proceedings at a great cost to Fineline Painting and Camarda & Cantrill. OK, you will have to stop the painters.
Thomas: I don’t know that it is my position to stop the painters.
Later, as he was leaving the site, Mr Primmer had a conversation with Mr Kennedy, C&C’s occupational health and safety and quality assurance officer in words to the following effect:
Primmer:What are we going to do about Fineline working on a government site with a pending wage case?
Kennedy:Thomas is on the phone with Peter Camarda, Norm Mogg and Justin Kennedy to see what we need to do about the issue. We’ll have to wait for the outcome of those conversations before we do anything else.
Primmer:If the local papers found out that Camarda & Cantrill were using shonky subcontractors who did not pay their apprentices, it wouldn’t look good for Camarda.
Kennedy:Well, we’ll have to wait and see what the outcomes of the phone calls are.
Mr Primmer’s conduct was intended to cause prejudice, loss and damage to Fine Line and it might also have had the consequence, presumably unintended, of causing inconvenience, delay and expense to C&C and the principal, the New South Wales government as requested by its Department of Commerce, by preventing Fine Line from performing its contracted tasks. The conversation with Mr Kennedy also involved a threat to C&C of wider significance, that if it did not act on Mr Primmer’s concerns, then that company might be directly disadvantaged by way of adverse media attention.
These conversations were serious contraventions of freedom of association rights provided by the Act.
Whether the breaches were properly distinct or arose out of the one course of conduct
In this case it has been found that each of the respondents breached s.800(1)(a) of the Act on two occasions on 12 October 2006. Although the applicant submitted that the contraventions represented by each of the conversations was separate and distinct, in my view they must be considered to form part of the one course of conduct. It is apparent from the first part of the conversation which took place between Messrs Primmer and Kennedy that that conversation was really no more than a continuation of the earlier conversation with Mr Thomas and a reiteration of the concern already expressed by Mr Primmer.
Where a single course of conduct produces more than one contravention, generally it would not be appropriate to impose more than one penalty in respect of those contraventions. This is not a case where one act simultaneously contravened more than one provision of the Act, such as was considered in Pearce v The Queen (1998) 194 CLR 610 at 623 [40] where it was said that to
… punish an offender twice if conduct falls in [an area where legislative provisions] overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. (per McHugh, Hayne and Callinan JJ)
Instead, this case presents a distinguishable situation where, whatever the number of technically identifiable contraventions committed, the contraveners were truly engaged in one course of conduct, in respect of which, in the criminal context, a judge would be likely to find concurrent sentences just and convenient (Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at 396-397 [41]-[42]).
The general principle that a person should not be punished more than once for the same act, or for a course of conduct which generates more than one contravening act, should be distinguished from the totality principle which a court applies as a final check to ensure that, when multiple penalties are imposed, in the aggregate they are not unjust or out of proportion to the circumstances of the case: Mornington Inn Pty Ltd v Jordan at 397 [42] per Stone and Buchanan JJ. In the Mornington Inn case, Stone and Buchanan JJ drew attention to the potential for confusion where multiple contraventions could be treated either as overlapping, and thus attract from the outset the general principle that one act or one course of conduct should not attract more than one penalty, or as separate contraventions, which would attract multiple penalties but also the application of the totality principle at the end of a case: at 398 [46].
In this matter, as already noted, I have concluded that the two contravening acts arose out of the same course of conduct. For this, each of the respondents should not be punished more than once. Even so, because it was a course of conduct which was persisted in, by being repeated on a second occasion in different circumstances, and because the second conversation involved a threat to C&C, a circumstance of aggravation is apparent when the conduct is viewed as a whole: cf.Hamburger v Construction, Forestry, Mining & Energy Union [2002] FCA 585 at [11].
Nature and extent of any loss or damage
Mr Mogg deposed to the inconvenience caused to him and his business because of the contravening conduct. Even so, any loss suffered by Fine Line has not been quantified and, it is apparent, was small. Nevertheless, the consequences of Mr Primmer’s statements might have been much greater. As was said in the reasons delivered on 3 November 2008:
If C&C had acted on this advice and encouragement of Mr Primmer it would have, at least, altered the position of Fine Line to Fine Line’s prejudice. Depending on the precise action which C&C took, it might also have terminated Fine Line’s contract or injured Fine Line in relation to the terms and conditions of its contract with C&C. Any step taken by C&C to inhibit Fine Line’s work on the Project, and thus from enjoying the fruits of its contract with C&C, would have amounted to conduct described in one or more of paragraphs (a), (b), (c) and (d) of s.792(5). (at [116])
If Fine Line had left the site, Mr Primmer’s conduct might also have had consequences for C&C’s relationship with the New South Wales Department of Commerce and its ability to meet its contractual obligations in respect of the Project.
Similar previous conduct
The applicant conceded that the respondents had not previously been found by the Courts to have contravened s.800 of the Act but submitted that the Court may consider any and all contraventions of applicable Commonwealth legislation that may have been committed by them. The CFMEU and CFMEU(NSW) submitted that only contraventions of provisions in what is now Pt.16 of the Act are relevant.
In the criminal context, in Veen v R (No.2) (1998) 164 CLR 465 at 477 it was held that a defendant’s history of prior offences was relevant to show whether the instant offence was an uncharacteristic aberration or whether the defendant had manifested in the commission of the offence in question a continuing attitude of disobedience of the law. The High Court said that in the latter case a more severe penalty might be warranted:
It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows the need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. (per Mason CJ, Brennan, Dawson and Toohey JJ at 477)
Although in the criminal context, to be relevant, a prior offence need not be one of a nature similar to the one for which the defendant is being penalised: R v Armstrong (1996) 1 Qd R 316 at 319, it has been held, when considering breaches of civil penalty provisions of particular industrial relations legislation, that it is inappropriate to take account of contraventions of other legislation which were different in character from the contravening conduct in question: Leighton Contractors v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 at 390 [67]. Later, in Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (No.3) [2008] FCA 1426 Tracey J said:
In the present case, the applicant invites the Court to have regard to previous contraventions by the CFMEU of the WR Act in determining the appropriate penalty for the CFMEU’s contraventions of the BCII Act. Similar previous conduct demonstrates that the respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions. Conduct which is of a different character does not assist this assessment see: Leighton Contractors Pty Ltd v Constructions, Forestry, Mining and Energy Union (2006) 164 IR 375 at [67]. Similar conduct which has been found to contravene other legislative provisions will have potential relevance. In this case, any previous contraventions of the provisions of Part 9 of the WR Act which relate to unlawful industrial action and coercion are relevant in determining the appropriate penalty. (at [44])
Consequently, while I accept that contraventions of provisions in what is now Pt.16 of the Act are the most relevant for consideration, I do not agree that other cases in the industrial relations context are irrelevant: cf. A&L Silvestri Pty Ltd v Construction, Forestry, Mining & Energy per Gyles J at [13].
The CFMEU and CFMEU (NSW) submitted that each of them was the result of an amalgamation of a number of previous unions and that their divisions, representing occupational groups, enjoyed a high degree of autonomy. They submitted that the Court should only treat as relevant previous contraventions by the New South Wales Construction and General Divisional Branch or, in the alternative, by the CFMEU Construction and General Division.
In connection with a similar issue, in Cahill v Construction, Forestry, Mining & Energy Union [2008] FCA 495 Marshall J said at [40] that as the CFMEU was a large organisation with nationwide coverage, he did not consider that the actions of branches or officials, other than those involved in that particular matter, in respect of other provisions of industrial legislation, should be taken into account for the purposes of assessing penalty. His Honour formed a different view concerning prior contraventions of the section which was the particular subject of the proceedings before him.
However, in Hadgkiss v Construction, Forestry, Mining & Energy Union [2007] FCA 524, Kiefel J said:
The applicant has submitted that the penalty to be imposed upon the third and fourth respondents should be increased because they, or more particularly, the third defendant, have engaged in similar conduct on previous occasions. There would not appear to be evidence that the fourth respondent has been involved in prior contraventions of this nature. The point the third respondent seeks to make is that it is an amalgamated federation and the conduct in the cases relied upon by the applicant is conduct of branches of different divisions of the third respondent, which are largely autonomous. As a national body it should be not be liable for their conduct, or be seen to have been responsible for their conduct in the past.
The third respondent is the body responsible for penalties as an organisation. It has adopted the structure which it now seeks to be distanced from. In any event it should be in a position to be more influential with respect to those divisions at least with respect to matters involving the rights of others which are enshrined in legislation. The cases referred to by the applicant do not however suggest that contraventions of this kind have been habitual and I accept that the third respondent may not have been aware of this particular problem. Nevertheless, as I have said, it owed duties to ensure its officers know of the statutory provisions. (at [9] – [10])
I respectfully agree with her Honour’s observation expressed in the last sentence of the above quotation
The Court was taken to a number of cases in which civil pecuniary penalties had been imposed on or sought against the respondents. Only one of these concerned Mr Primmer. It arose out of a breach of s.45D of the Trade Practices Act 1974 but no penalty was imposed on him. Of the others, several involved breaches of the BCII Act and breaches of parts of the Act other than what is now Pt.16. Several cases did involve breaches of provisions in what is now Pt.16. Several of the cases involved contraventions by the CFMEU in states other than New South Wales while others involved breaches in New South Wales.
It is not necessary to perform a detailed analysis of the various contraventions and cases to which the Court’s attention has been drawn by the applicant. However, it can be noted that in the industrial relations context, they demonstrate a history of contraventions of the Act and of other legislation by the CFMEU and the CFMEU (NSW). The CFMEU and CFMEU (NSW) have sought to distance themselves from the contraventions in this case because of their federated structures but I am unpersuaded by that submission and respectfully agree with the comment of Kiefel J in Hadgkiss v Construction, Forestry, Mining & Energy Union that the CFMEU, and also here CFMEU (NSW), should be in a position to bring influence to bear on their divisions with respect to matters involving the rights of others which are enshrined in legislation.
Culture of compliance
In that latter connection, Mr Roberts, the CFMEU’s senior national legal officer, deposed to changes to the CFMEU’s rules saying that such changes were publicised to union officials. However, as Kiefel J observed in Hadgkiss v Construction, Forestry, Mining & Energy Union, the CFMEU’s rule changes were
to the effect that it is no part of an officer's duty to contravene the Act … This would appear to be in its own interests and provide possible defences … It does not, however, amount to an acknowledgement of their need for officer training. (at [8])
The relevant rule change to which Mr Roberts deposed is merely to the effect that persons associated with the CFMEU would not be required, presumably by it, to break the law. However, it does not go so far as to say that such acts would be discountenanced by the CFMEU or that observance of the law, at least in relation to legislation applicable to the CFMEU, was expected of all persons governed by the rules.
Mr Roberts referred to a resolution which the national executive committee of the CFMEU adopted on 9 March 2007 to the effect that all divisions were directed to
…. provide further training, information and education to all officers, employees, members and delegates in relation to what constitutes or may constitute illegal/unlawful conduct under relevant industrial legislation and any relevant prohibitions/limitations on conduct contained in the rules of the CFMEU or resolutions of its Committees of Management.
He said that the CFMEU Construction and General Division has circulated summaries of and commentaries on legislative changes which have included relevant information concerning the freedom of association provisions of the Act. He also deposed to education briefing sessions. While these efforts must be recognised, Mr Roberts does not depose to Mr Primmer having been the recipient of any of the publications or to having attended any of the briefing sessions. Nor did Mr Roberts depose that Mr Primmer or any other CFMEU officers or employees were obliged to familiarise themselves with the statutory environment in which they operated and the rights, obligations and prohibitions provided by statute. In brief, Mr Roberts’s affidavit falls short of demonstrating an adequate compliance program.
Significantly, Mr Primmer gave no evidence of having participated in the activities to which Mr Roberts referred or of having read the summaries and commentaries mentioned in Mr Roberts’s affidavit.
As to the CFMEU (NSW), in her affidavit affirmed 5 February 2009, its industrial officer, Ms Raju, deposed that the state union’s records disclose that union training for workplace delegates included relevant legal issues of which a delegate should be aware including freedom of association issues. Amongst the subjects covered in training concerning Workplace Relations Amendment (Work Choices) Bill 2005 was information concerning the prohibition on coercion of another person to engage or not to engage a contractor. Ms Raju did not say that Mr Primmer attended any of these training sessions.
Ms Raju deposes that on 24 November 2008 Mr Primmer attended compulsory group training on union officials’ right of entry to workplaces, the Act and New South Wales occupational health and safety laws. The affidavit did not contain evidence that the provisions the subject of these proceedings were covered in that training in any depth or at all.
Although Ms Raju’s evidence does indicate the existence of a compulsory education program, it does not detail the substance of the training, to the extent that it dealt with the Act. Nor does it go so far as to demonstrate the existence of a program designed to encourage, through education, compliance with the law by CFMEU (NSW) officers and employees.
The evidence of Mr Roberts and Ms Raju falls short of demonstrating a culture of compliance within the CFMEU or the CFMEU (NSW).
Contrition, co-operation
All respondents vigorously contested the proceedings, which included a lengthy interlocutory dispute. No question of co-operation with the enforcement authorities arises.
Significantly, none of the respondents provided evidence of contrition or of acknowledgement of wrongdoing.
None of the respondents have said that they will not contravene again.
Deterrence
As to Mr Primmer, it was submitted on his behalf that although there was need for general deterrence, there was limited need for specific deterrence because the consequences of his statements were not serious. However, no credit accrues to Mr Primmer because, on this occasion, these breaches of the Act happened to cause little or no harm to the object of his statements, Fine Line, or to his interlocutors and their employer, C&C. This submission merely tends to underline the lack of contrition demonstrated by Mr Primmer. Absent contrition on the part of Mr Primmer, some element of special deterrence is appropriate to deter him from repetition of this conduct.
Similar considerations apply to the CFMEU and CFMEU (NSW). Although they have deposed to the steps taken in recent years to inform their officials and employees of the law applicable to their operations, they have failed to acknowledge that, at least on this occasion, their efforts have been unsuccessful, as a result of which they have been found to have contravened the Act. In those circumstances, the penalties imposed should contain some element for specific deterrence.
The respondents have conceded the need for general deterrence, a matter which must be considered in order that the law’s disapproval of the conduct in question should be marked and the penalties serve as a warning to others not to engage in similar conduct: CPSU, The Community & Public Sector Union v Telstra Corporation Limited [2001] FCA 1364 at [9].
Generally, for a penalty to have the desired effect it must be imposed at a meaningful level: Financial Sector Union v Commonwealth Bank of Australia (2005) 147 IR 462 at 475 [41] and a price should be put on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act: Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 per French J at 52,152.
Further matters
Three references were tendered on behalf of Mr Primmer attesting to his character. Two of those references make no mention of the judgment of 3 November 2008 and they will be accorded no weight: ASIC v Australian Investors Forum Pty Ltd (No.3) [2005] NSWSC 1198 at [26]. As to the third reference, it does not disclose an understanding of the nature of the contraventions which have been found to have occurred. Nevertheless, it does speak highly of Mr Primmer’s character and I have taken it into account.
No submissions were made concerning Mr Primmer’s financial position and his ability to pay such penalty as might be imposed by the Court. As to the CFMEU and CFMEU (NSW), they are large organisations capable of meeting the penalties likely to be imposed in these proceedings. However, I note their counsel’s submission that although legally they are two entities, any penalties would be paid from the one source.
Mr Primmer did not make any submissions as to what penalty would be appropriate in his case. The CFMEU and CFMEU (NSW) submitted that any penalties which might be imposed on them should be at no more than the mid-range of the scale. The applicant submitted that that mid-range would be an appropriate floor for such penalties as the Court might impose.
Penalty
I have found that each of the respondents has contravened the Act on two occasions but that only one penalty should be imposed on each of them. In such circumstances s.807 provides that the maximum pecuniary penalty for Mr Primmer is $6,600 and $33,000 for each of the second and third respondents.
Having taken into account the matters discussed above:
a)I consider $3,500 to be the appropriate penalty to be imposed on Mr Primmer for his breaches of s.800(1)(a) of the Act on 12 October 2006.
b)I consider $10,000 to be the appropriate penalty to be imposed on the CFMEU for its breaches of s.800(1)(a) of the Act on 12 October 2006.
c)I consider $10,000 to be the appropriate penalty to be imposed on the CFMEU(NSW) for its breaches of s.800(1)(a) of the Act on 12 October 2006.
The penalties are to be paid to the Commonwealth within 28 days.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 3 March 2009
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