Alfred v Wakelin (No 4)

Case [2009] FCA 267

FEDERAL COURT OF AUSTRALIA

Alfred v Wakelin (No 4) [2009] FCA 267

INDUSTRIAL LAW – penalties – unlawful industrial action – breaches of Workplace Relations Act 1996 (Cth) and Building and Construction Industry Improvement Act2005 (Cth) – related unions – totality principle

Building and Construction Industry Improvement Act 2005 (Cth)
Workplace Relations Act 1996 (Cth)

Alfred v Wakelin (No 1) [2008] FCA 1455
Alfred v Wakelin (No 2) [2008] FCA 1543
Bluescope Steel (AIS) Pty Ltd formerly known as BHP Steel (AIS) Pty Ltd v Australian Workers’ Union, New South Wales (2004) 136 IR 48; [2004] NSWIRComm 145
Furlong v Australian Workers’ Union [2007] FMCA 443
Hadgkiss v Construction Forestry Mining and Energy Union (No 5) [2008] FCA 1040
Haynes v CI & D Manufacturing Pty Limited (No 2) (1995) 60 IR 455
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65

Held: penalties imposed

GREGORY CHARLES ALFRED v ROBERT WAKELIN, CHARLES ABELA, MARK BATZLOFF, ROBERT JONES, JOSEPH O'CONNOR, THE AUSTRALIAN WORKERS' UNION, THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES, CONSTRUCTION, FORESTRY, MINING & ENERGY UNION, CONSTRUCTION FORESTRY, MINING & ENERGY INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND, AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES and FEDERATED ENGINE DRIVERS' AND FIREMENS' ASSOCIATION OF QUEENSLAND, UNION OF EMPLOYEES

NSD 858 of 2007

JAGOT J
26 MARCH 2009
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 858 of 2007
BETWEEN:

GREGORY CHARLES ALFRED
Applicant
AND:

ROBERT WAKELIN
First Respondent

CHARLES ABELA
Second Respondent

MARK BATZLOFF
Third Respondent

ROBERT JONES
Fourth Respondent

JOSEPH O'CONNOR
Fifth Respondent

THE AUSTRALIAN WORKERS' UNION
Sixth Respondent

THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES
Seventh Respondent

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Eighth Respondent

CONSTRUCTION FORESTRY, MINING & ENERGY INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND
Ninth Respondent

AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES
Tenth Respondent

FEDERATED ENGINE DRIVERS' AND FIREMENS' ASSOCIATION OF QUEENSLAND, UNION OF EMPLOYEES
Eleventh Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

26 MARCH 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The fifth respondent, Joseph O’Connor, pay penalties as follows for his contraventions of the Building and Construction Industry Improvement Act 2005 (Cth), Workplace Relations Act 1996 (Cth) and the John Holland Engineering Pty Ltd New South Wales – SMP Certified Agreement 2005:

(a)between 6.30 am on 15 October 2005 and 6.30 am on 18 October 2005 – $6,500; and

(b)between 11.00 am on 10 November 2005 and 6.30 am on 11 November 2005 – $2,500.

2.The sixth respondent, the Australian Workers’ Union, pay penalties as follows for its contraventions of the Building and Construction Industry Improvement Act 2005 (Cth), Workplace Relations Act 1996 (Cth) and the John Holland Engineering Pty Ltd New South Wales – SMP Certified Agreement 2005:

(a)between 6.30 am on 15 October 2005 and 6.30 am on…

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AGLC
Alfred v Wakelin (No 4) [2009] FCA 267
Case
[2009] FCA 267
Decision Date

CaseChat Overview and Summary

Alfred v Wakelin (No 4) involves the determination of penalties imposed on the respondents for contraventions of the Building and Construction Industry Improvement Act 2005 (Cth), the Workplace Relations Act 1996 (Cth) and the John Holland Engineering Pty Ltd New South Wales – SMP Certified Agreement 2005. The respondents, Joseph O'Connor, the Australian Workers' Union (AWU) and the Australian Workers' Union, New South Wales (AWU-NSW), had engaged in industrial actions that were considered unlawful. The court had to determine the appropriate penalties that should be imposed on the respondents for these contraventions.

The primary legal issue before the court was the assessment of the appropriate penalties for the respondents' contraventions. The court had to consider the culpability of each respondent, the seriousness of the contraventions, and the principles of proportionality and deterrence in determining the penalties. The court also had to consider the relationship between the AWU and the AWU-NSW and whether the penalties should be apportioned between the two unions.

The court found that the unions' attempts to distance themselves from Mr O'Connor's conduct were unpersuasive, given that Mr Goring, the AWU organiser, had left Mr O'Connor in charge without providing him or John Holland with a copy of the unions' rules. The court also found that the unions' description of the industrial action as "wildcat" did not significantly mitigate their culpability. The court rejected the unions' argument that they were entitled to a material discount on account of their limited admissions of fact, noting that those admissions did not equate to an admission of liability at an early stage.

The court determined that the penalties should be apportioned between the AWU and the AWU-NSW, given their close relationship. The court also determined individual penalties for Mr O'Connor and the AWU, and then considered the aggregate penalties for each union to ensure they were "just and appropriate". The penalties imposed were as follows: Joseph O'Connor was ordered to pay $6,500 for the first stoppage and $2,500 for the second stoppage; the AWU was ordered to pay $20,000 for the first stoppage and $8,000 for the second stoppage; and the AWU-NSW was ordered to pay $12,500 for the first stoppage and $5,500 for the second stoppage.

Orders

Orders of the court

1. The fifth respondent, Joseph O’Connor, pay penalties as follows for his contraventions of the Building and Construction Industry Improvement Act 2005 (Cth), Workplace Relations Act 1996 (Cth) and the John Holland Engineering Pty Ltd New South Wales – SMP Certified Agreement 2005:

(a) between 6.30 am on 15 October 2005 and 6.30 am on 18 October 2005 – $6,500; and

(b) between 11.00 am on 10 November 2005 and 6.30 am on 11 November 2005 – $2,500.

2. The sixth respondent, the Australian Workers’ Union, pay penalties as follows for its contraventions of the Building and Construction Industry Improvement Act 2005 (Cth), Workplace Relations Act 1996 (Cth) and the John Holland Engineering Pty Ltd New South Wales – SMP Certified Agreement 2005:

(a) between 6.30 am on 15 October 2005 and 6.30 am on 18 October 2005 – $20,000; and

(b) between 11.00 am on 10 November 2005 and 6.30 am on 11 November 2005 – $8,000.

3. The seventh respondent, the Australian Workers’ Union, New South Wales, pay penalties as follows for its contraventions of the Building and Construction Industry Improvement Act 2005 (Cth):

(a) between 6.30 am on 15 October 2005 and 6.30 am on 18 October 2005 – $12,500; and

(b) between 11.00 am on 10 November 2005 and 6.30 am on 11 November 2005 – $5,500.

Note:

Background

Background to the litigation

The remaining issue is the penalties which should be imposed on the respondents with respect to the contraventions.FACTS The principal facts are recorded in my reasons for decision in Alfred v Wakelin (No 2) particularly at [55] which, for convenience, I repeat:(1)Mr O’Connor had been elected as the job representative (or delegate) on the Lake Cowal site [a project involving the development of a gold mine] for the AWU in accordance with rule 45 of the AWU rules.(2)John Holland [a construction company engaged by the mine owner to carry out the construction project] understood Mr O’Connor to be the AWU delegate on site. This understanding was based not only on representations by Mr O’Connor and other employees but also by the AWU through Mr Goring’s conduct [Mr Goring was the AWU organiser responsible for the Lake Cowal site]. Mr Goring accepted that Mr O’Connor was the AWU delegate when he attended the site in August 2005 and dealt with Mr O’Connor, the employees and John Holland management on the basis that Mr O’Connor was the AWU delegate.(3)Mr Goring had been involved in negotiating the certified agreement [the John Holland Engineering Pty Ltd New South Wales – SMP Certified Agreement 2005]. He knew that the Lake Cowal gold mine project was large. He thus knew that hundreds of employees, being members of different unions, were present on site and living at the accommodation site. From these circumstances he must have been aware that the union delegates (including Mr O’Connor as the AWU job representative or delegate on site) would have been involved on behalf of the AWU in dealing with issues as between AWU members on site and John Holland management on a routine basis. (4)Mr Goring was aware that Mr O’Connor was unhappy with Mr Goring’s direction that he could not call a stop work meeting of employees and had threatened to resign as the AWU delegate. He was also aware that Mr O’Connor had not resigned and continued in the role of AWU delegate on the site. He knew too that there were many potential issues and difficulties with respect to the site. (5)Mr Goring did not provide Mr O’Connor, John Holland management or any other person with a copy of the AWU rules. Although Mr Goring told the workers at the meeting in August 2005 that they could not hold a stop work meeting without management’s permission he did not inform any of them about limitations on the powers of Mr O’Connor as the AWU job representative or delegate or that, rather than going through their delegate, the employees should contact the AWU directly. Insofar as John Holland was concerned Mr Goring said nothing about Mr O’Connor’s role but conducted himself on the basis that that Mr O’Connor was the AWU’s delegate. He said nothing knowing that Mr O’Connor had been acting as a conduit between members and the union about issues with John Holland since at least July 2005. (6)Contrary to the submissions on behalf of the AWU I am satisfied that Mr O’Connor took a leading role in the industrial actions on the site during October and November 2005. The conduct of other leaders (such as Mr Wakelin) who may have been even more active does not undermine the importance of Mr O’Connor’s role. He was and acted as the AWU’s delegate and encouraged and incited the members of his union to take industrial action by stopping work between 6.30 am on 15 October and 6.30 am on 18 October 2005 and between about 11.00 am on 10 November and 6.30 am on 11 November 2005 and they did so (including Mr O’Connor himself). In the lead up to the stoppage in October 2005 Mr O’Connor attended all of the critical meetings with management (along with other delegates) and took an active role in encouraging others to vote in favour of the stoppage (as his conduct with respect to Mr Best, the AMWU delegate who opposed the strike, shows). Mr O’Connor also informed John Holland management of the decision (along with the other delegates). He attended the meetings with management during the stoppage. He called Mr Goring (no doubt about the stoppage) but Mr Goring did not return his call. As to the stoppage on 10 November 2005, Mr O’Connor stood at the front of the meeting with other delegates. He was shouting and yelling (along with other delegates) and kicking dirt around after Mr Bryce’s intervention [Mr Bryce was part of John Holland’s management]. He called for the employees to get back on the buses. He thereby encouraged and incited other employees to stop work. On both occasions he, as AWU delegate and on his own behalf, voted in favour of the strikes.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

JAGOT J
It follows from these considerations that, on the facts of this case, the approach which best reflects the requirements that any penalty be according to a person’s “just deserts” and that the aggregate of all penalties be “just and appropriate” is to: - (i) recognise the relationship between the AWU and the AWU-NSW by determining a single penalty for each of the unions’ contraventions of the BCII Act and apportioning those penalties equally between the unions, (ii) determine single penalties for all other contraventions by the AWU, and (iii) for each of the AWU and the AWU-NSW, consider the penalties in aggregate to ensure the aggregate is “just and appropriate”. Other conclusions I do not accept the unions’ submissions that Mr Goring’s conduct is irrelevant to penalty. It is part of the circumstances informing the objective seriousness of the contraventions. As I found in Alfred v Wakelin (No 2), Mr O’Connor’s actions made the unions liable because of the context in which his actions were carried out. He was appointed the job representative or site delegate. Mr Goring knew the site was difficult. Mr Goring knew that Mr O’Connor was dissatisfied with the constraints placed upon him. Knowing all this, Mr Goring left Mr O’Connor in charge on site without giving Mr O’Connor or John Holland a copy of the unions’ rules or limiting Mr O’Connor’s apparent authority with respect to either John Holland or AWU and AWU-NSW members on site. Mr Goring did not make contact with Mr O’Connor despite a union member, Mr O’Reilly, having resigned in frustration with what he considered stupid conduct by the employees after the action between 15 and 18 October 2005 and being told that the employees (including, it must be inferred, AWU and AWU-NSW members) had gone on strike. In these circumstances the unions’ present attempts to disassociate themselves from Mr O’Connor’s conduct during the industrial actions are unpersuasive. Mr O’Connor was found to have taken “a leading role in the industrial actions on the site during October and November 2005” (Alfred v Wakelin (No 2) at [55(6)]). Further, and as noted in the same paragraph, the “conduct of other leaders (such as Mr Wakelin) who may have been even more active does not undermine the importance of Mr O’Connor’s role”. The same considerations inform the weight that should be given to the unions’ description of the industrial action as “wildcat” industrial action. Despite this, it is true that this is not a case where any union official (in the sense of an employee of the union) actually knew and endorsed the taking of the industrial actions. All of these facts are relevant to the unions’ culpability. The unions admitted certain facts. Those admissions, however, related to matters about which there could be no real doubt given the available evidence. The unions contested liability and other factual matters. It is difficult to conclude that the unions’ limited admissions saved any real time or expense. The fact that the hearing extended over three days (15 to 17 September 2008) supports this conclusion. I do not consider that the unions are entitled to any material discount on account of their admissions of fact. Those admissions cannot be equated to an admission of liability at an early time, which is likely to have genuine utilitarian value.

Ratio Decidendi

Legal Principle Established

Established by: JAGOT J

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