Australasian Meat Industry Employees' Union v Teys Australia Beenleigh Pty Ltd (No 2)
[2022] FedCFamC2G 933
Federal Circuit and Family Court of Australia
(DIVISION 2)
Australasian Meat Industry Employees' Union v Teys Australia Beenleigh Pty Ltd (No 2) [2022] FedCFamC2G 933
File number(s): BRG 367 of 2021 Judgment of: JUDGE TONKIN Date of judgment: 15 November 2022 Catchwords: INDUSTRIAL LAW – Whether penalties should be imposed on the respondent with respect to contravening sections 501and 502 of the Fair Work Act 2009 (Cth) – Penalty imposed to be paid to the Applicant Legislation: Fair Work Act 2009 (Cth) Cases cited: Application / Notification by The Australasian Meat Industry Employees Union [2015] FWCFB 5228
Australasian Meat Industry Employees' Union v Fair Work Australia [2012] FCAFC 85
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
BPL Adelaide Pty Ltd v National Union of Workers [2015] FWC 3905
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607
Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Limited [2022] FCA 992
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97
Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39
Director of the Fair Work Building Industry Inspectorate v CFMEU [2016] FCA 413
Fair Work Ombudsman v NoBrace Centre Pty Ltd (In Liquidation) (ACN 121 556 447) & Ors (No.2) [2019] FCCA 2970
Kelly v Fitzpatrick [2007] FCA 1080
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of last submission/s: 3 November 2022 Date of hearing: 12 August 2022 Place: Brisbane Counsel for the Applicant: Mr O’Brian Solicitor for the Applicant: Australasian Meat Industry Employees’ Union Counsel for the Respondent: Mr Millar Solicitor for the Respondent: Law on Lydiard Lawyers ORDERS
BRG 367 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN MEAT INDUSTRY EMPLOYEES UNION
Applicant
AND: TEYS AUSTRALIA BEENLEIGH PTY LTD
Respondent
order made by:
JUDGE TONKIN
DATE OF ORDER:
15 November 2022
THE COURT ORDERS THAT:
1.Pursuant to section 546 and subsection 546 (3) of the Fair Work Act 2009 (Cth) the respondent pay a pecuniary penalty of $30,000 directly to the applicant within 28 days of the date of this order with respect to the declarations made on 19 September 2022.
2.The respondent shall pay interest on any part of the $30,000 that remains outstanding after the expiration of 28 days from the date of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN
By application filed on 19 August 2021 the applicant Australasian Meat Industry Employees' Union (“the Union”) alleged that the respondent Teys Australia Beenleigh Pty Ltd (“Teys”) contravened section 501 of the Fair Work Act 2009 (Cth) (“FW Act”) on 17 August 2021 in refusing a permit holder Mr Journeaux entry to the respondents meat processing premises pursuant to section 484 of the FW Act and further alleged that on 17 August 2021 Mr Allan Platter an employee of the respondent contravened section 502 of the FW Act in hindering and obstructing the permit holder’s entry to those premises. The matter was heard on 7 April 2022, 25 May 2022 and briefly on 27 June 2022.
On 19 September 2022 I delivered judgment[1] and declared that on 17 August 2021 the respondent contravened sections 501 and 502 of the Fair Work Act 2009 (Cth). I ordered the parties file written submissions with respect to any penalty sought to be imposed on the respondent.
[1] Australasian Meat Industry Employees' Union v Teys Australia Beenleigh Pty Ltd [2022] FedCFamC2G 782
Approach to penalty
Sections 501 and 502 are “civil remedy provisions.” Civil remedies may be sought in relation to a contravention of a civil remedy provision. The FW Act sets out the maximum penalties that may be imposed by the Court for each contravention[2] attracting the imposition of a penalty of up to 300 penalty units.[3] Section 12 of the FW Act provides that “penalty unit” has the same meaning as section 4AA of the Crimes Act1914 (Cth). A penalty unit is fixed at $222, resulting in a maximum penalty of $66,600 for each contravention.
[2] Section 546(2) of the FW Act limits the maximum penalty amounts to the penalty units referred to in section 539(2), and provides that the maximum penalty payable by a body corporate will be five times the number of penalty units prescribed for an individual
[3] Section 539 item 25 specifies 60 penalty units, multiplied by 5 for a contravention by a body corporate under section 546(2)(b)
In Fair Work Ombudsman v NoBrace Centre Pty Ltd (In Liquidation) (ACN 121 556 447) & Ors (No.2) [2019] FCCA 2970 (22 October 2019) Judge Kelly at [65] said:
[65] An important distinction should also be drawn between the basis on which penalties are imposed under the criminal law and those to be imposed by way of civil penalty. This is necessary because, the purpose of a civil penalty is primarily, if not wholly, that of promoting the public interest in compliance with the laws that have been contravened and does not engage principles of retribution or rehabilitation.
The Court has a broad discretion to assess the appropriate penalty. Pursuant to subsection 546 (3) of the FW Act the Court has a discretion to pay any penalty or part thereof to the Commonwealth, a particular organisation or person including the applicant.
The purpose of imposing a penalty is deterrence both specific to the contravenor and generally to others who may be tempted to contravene the FW Act not one of retribution, denunciation and/or rehabilitation.
In determining penalty the Court is required to identify the separate contraventions, consider whether any of the contraventions are a single course of conduct, consider whether there should be further adjustment to ensure that any overlap between separate contraventions is considered so there is no double penalty imposed and that the penalty is an appropriate response to the respondent’s conduct and then consider the appropriate penalty with respect to each final individual ground of contravention having regard to all the circumstances of the case and the maximum penalty available for each contravention. The Court is required to apply the totality principle to ensure the penalties are appropriate and proportionate to the conduct viewed as a whole.[4]
[4] Bromwich J in Fair Work Ombudsman v NSH North Pty Ltd [2017] FCA 1301 at [36]
The High Court recently considered the application of section 546 of the FW Act, in Australian Building and Construction Commissioner v Pattinson[5]. Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ held in a joint judgment that:
[10] The power conferred by s 546 of the Act is not subject to constraints drawn from the criminal law and there is no place for a "notion of proportionality", in the sense in which the Full Court used that term, in a civil penalty regime. Further, and relatedly, their Honours were misled by the view that the Act required that the maximum penalty be reserved for only the most serious examples of the offending comprehended by s 349(1), and that this principle could prevent the court from imposing the maximum penalty even though a penalty in that amount might reasonably be considered to be necessary to deter future contraventions of a like kind. Nothing in the text, context or purpose of s 546 requires that the maximum penalty be reserved for the most serious examples of misconduct within s 349(1). What is required is that there be "some reasonable relationship between the theoretical maximum and the final penalty imposed". That relationship is established where the maximum penalty does not exceed what is reasonably necessary to achieve the purpose of s 546: the deterrence of future contraventions of a like kind by the contravenor and by others.
[5]Pattison [2022] HCA 13 (13 April 2022)
As to the relevant factors that inform the exercise of discretion the Court in Pattison observed:
[18] In Trade Practices Commission v CSR Ltd, French J listed several factors which informed the assessment under the Trade Practices Act 1974(Cth) of a penalty of appropriate deterrent value:
The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following:
1. The nature and extent of the contravening conduct.
2. The amount of loss or damage caused.
3. The circumstances in which the conduct took place.
4. The size of the contravening company.
5. The degree of power it has, as evidenced by its market share and ease of entry into the market.
6. The deliberateness of the contravention and the period over which it extended.
7. Whether the contravention arose out of the conduct of senior management or at a lower level.
8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.
9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention."
[19] It may readily be seen that this list of factors includes matters pertaining both to the character of the contravening conduct (such as factors 1 to 3) and to the character of the contravenor (such as factors 4, 5, 8 and 9). It is important, however, not to regard the list of possible relevant considerations as a "rigid catalogue of matters for attention" as if it were a legal checklist. The court's task remains to determine what is an "appropriate" penalty in the circumstances of the particular case.”
The High Court in Pattison indicated further:
[46] It does not follow, as the Full Court suggested and as the CFMMEU argued in this Court, from the rejection of the Full Court's "notion of proportionality" that s 546 must be taken to require the imposition of a penalty approaching the maximum in relation to any and every contravention by a recidivist offender. It is important to recall that an "appropriate" penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. A contravention may be a "one-off" result of inadvertence by the contravenor rather than the latest instance of the contravenor's pursuit of a strategy of deliberate recalcitrance in order to have its way. There may also be cases, for example, where a contravention has occurred through ignorance of the law on the part of a union official, or where the official responsible for a deliberate breach has been disciplined by the union. In such cases, a modest penalty, if any, may reasonably be thought to be sufficient to provide effective deterrence against further contraventions.
[47] The penalty that is appropriate to protect the public interest by deterring future contraventions of the Act may also be moderated by taking into account other factors of the kind adverted to by French J in CSR. For example, where those responsible for a contravention of the Act 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. Similarly, where the occasion in which a contravention occurred is unlikely to arise in the future because of changes in the membership of an industrial organisation, a modest penalty may be appropriate having regard to the reduced risk of future contraventions.”
Respondent’s submissions
Whilst the applicant argued that each contravention was a distinct contravention in nature and time and should not be grouped together and a higher penalty was warranted to achieve both specific and general deterrence the respondent contends that the contraventions do not warrant the imposition of any penalties in the circumstances as the declaration by the Court provided the parties with clarity on a disputed issue of law. The respondent contends that should a penalty be imposed, it should be assessed as a single penalty, at the lower end of the available range, and payable solely to the Commonwealth.
The respondent argued that the two contraventions arise from a single event on 17 August 2021 with respect to the respondent not permitting Mr Journeaux to bring his mobile phone “on site” on 17 August 2021 and to impose two penalties would constitute double punishment for the same conduct. As observed by White J in Director of the Fair Work Building Industry Inspectorate v CFMEU [2016] FCA 413 at [55]:
The circumstance that two or more contraventions occurred as part of a single course of conduct is of course relevant to the assessment of penalty. In such cases, the Court must be careful to avoid double punishment and, accordingly, must consider carefully whether the contraventions resulted from a single incursion into unlawful conduct, and whether there are aspects of one or more of the offences which are common to others: CFMEU v Cahill [2010] FCAFC 39; (2009) 269 ALR 1 at [41][43]. However, a finding that two or more contraventions occurred in single course of conduct does not of itself authorise the imposition of a single penalty for those contraventions.
In CFMEU v Cahill, Middleton and Gordon JJ recognised[6] that ‘where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, the Court must ensure that the offender is not punished twice for the same conduct.’
[6] [2010] FCAFC 39 at [41]
The applicant conceded that there should be the imposition of one penalty for two contraventions. I am satisfied that the two contraventions occurred as a result of a ‘single incursion into unlawful conduct’.
The respondent relied on the decision of Tracey J in Kelly v Fitzpatrick,[7] and CFMMEU v ABCC[8] regarding applicable principles on assessment of penalty where the Court said
...for present purposes, they can be restated as follows: the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; and, any co-operation with the regulator and contrition.
The High Court in ABCC v Pattinson,[9] endorsed substantially the same principles. No issue was taken by the applicant regarding the factors to be considered when assessing penalty.
[7] (2007) 166 IR 14; [2007] FCA 1080 at [14], adopting the factors set out by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
[8] [2018] FCAFC 97 at [20]
[9] [2022] HCA 13 at [18] per Kiefel CJ, Gageler, Keane, Gordon. Steward and Gleeson JJ
The respondent argued that the contraventions were a technical breach not conduct deliberately flouting the FW Act such as paying under Award wages or failing to provide terms of employment in accordance with the National Employment Standards but rather the respondent sought to apply a requirement that a union official follow the respondent’s “Photography, Image Recording and Mobile Telephone Use” policy, and not bring a mobile phone on site. The actual contravention involved Mr Platten, a Shift Manager, not senior management of the company.
The respondent contends that its action was soundly based on previous authorities that a company could restrict the bringing of mobile phones on site and relied on the approach taken by O’Callaghan SDP in BPL Adelaide Pty Ltd v NUW[10] “clear authority for that proposition” where recognition was given to the occupier’s implied ability to apply constraints on the right of entry. The decision in Australasian Meat Industry Employees' Union v Fair Work Australia[11] also provided support for the approach taken by the respondent. The respondent argued that while the Court’s analysis reaches a different conclusion, its actions were nonetheless based on a reasonably held view on an issue which was a contested question of law.
[10] [2015] FWC 3905 at [5
[11] [2012] FCAFC 85
The respondent acknowledged that was no general principle that a mistaken view on an arguable question of law should result in no penalty being imposed[12] but submitted that an honest and reasonable belief may be a relevant mitigating or ameliorating factor in determining whether or not a penalty is to be imposed and, if so, the quantum of that penalty.[13]
[12] Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 at [35]
[13] Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 at [35], and the authorities referred to therein by Bromberg J: Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 at [2], Gleeson CJ and Kirby J and at [85], Callinan and Heydon JJ; Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68 at [63]-[64] Allsop CJ, Davies and Wigney JJ; Australasian Meat Industry Employees’ Union v Australia Meat Holdings [1998] FCA 664 at 4-5 Kiefel J; Australian Competition and Consumer Commission v Oobi Baby Pty Ltd [2008] FCA 1488 at [11] Finkelstein J; SMEC Holdings Pty Ltd v Commissioner of the Australian Federal Police [2018] FCA 609 at [39] Bromwich J; Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 at [15] Rangiah J; and Fair Work Ombudsman v Transpetrol TM AS [2019] FCA 400 at [128] Rares J
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [14] Gordon J observed:
“Where the unlawful conduct arises out of an arguable but erroneous construction of a relevant term, and the subsequent breach cannot be characterised as demonstrating a flagrant or wilful disregard for the agreement, [the legislative purpose of general deterrence] is not furthered by the imposition of a penalty. In these circumstances, neither general nor specific deterrence is a significant factor weighing in favour of imposing a penalty.” I accept that submission.
[14] [2007] FCA 1607 at [18]
The respondent contends that the contraventions in the current matter have arisen with the Court having reached a different view to that genuinely held by the respondent on a seriously arguable question of law and argued it was sufficiently open to the Court to determine that it is inappropriate to impose a penalty on the respondent. Further should any penalty be imposed the contraventions are on the lower end of the scale given this was not a case where an employer deliberately denied the permit holder entry but rather sought to prohibit entry with a mobile phone.
The respondent maintains that the applicant’s conduct was “staged managed” and Mr Journeaux knew he would be not be permitted to take his mobile on site. The applicant had previously issued proceedings on two occasions over the same issue, both subsequently discontinued. The visit on 17 August 2022 was arranged to facilitate a further action being brought in circumstances where proceedings were issued two days later on 19 August 2022. Mr Journeaux left the site without entering a decision he alone made and he could have handed his phone over and entered the site had he chosen to do so. There was no reason his visit could not proceed on 17 August 2022 and as such the respondent ought not be penalised because the applicant “expanded the matter into a more serious incident by choosing to leave the site.” The respondent argued that the incident on 17 August 2022 occurred to facilitate a cause of action, to effectively run as a test case on a specific legal issue, rather than occurring in the ordinary course of workplace relations. The respondent claimed that the application was an abuse of process at the same time conceding both parties sought clarification on a question of law. I reject that the applicant’s conduct amounts to an abuse of process. The union was as much entitled to seek clarification on a question of law as was the respondent.
The respondent argued there was no evidence of any consequence as a result of the contraventions and no evidence was adduced of any actual loss or damage suffered as a consequence of the respondent’s conduct.
The respondent acknowledged it was a large employer asserting that the applicant was also a significant entity. The respondent contends it did not misuse its size and market presence to breach the legislation.
The respondent contends there was no deliberate breach of legislation to warrant the imposition of a penalty and the conduct occurred on a single occasion. Although evidence was admitted of earlier occasions when Mr Cottrell-Dormer had similar experiences, those allegations did not form a part of the applicant’s case in the Statement of Claim. I accept that submission.
The respondent contends there was nothing in the culture of the respondent rendering this case to be an appropriate case for a penalty and to the contrary the respondent has been diligent about ensuring statutory compliance and has not previously been the subject of penalties for contraventions of the FW Act. The respondent contends the Court should have regard to the fact that this was a private action brought by the union rather than by the Fair Work regulator and the proceedings were conducted professionally and civilly and as such there is no basis for any suggestion of any lack of co-operation by the respondent.
In conclusion the respondent contends that in the present case the declaratory relief granted by the Court is sufficient. The proceeding was clearly intended to obtain clarity on a disputed point of law, and the declaration issued by the Court on 19 September 2022 has achieved that result. In the respondent’s view there is no utility going further and imposing a penalty and nothing by way of specific or general deterrence which requires a penalty to be imposed.
If a penalty is to be imposed, the respondent submits that in applying the factors discussed above only a nominal penalty at the lower end of the range of penalties would be appropriate and any penalty should be payable to the Commonwealth. For the penalty to be paid to the applicant would represent a windfall for the applicant, and proceedings for pecuniary penalty are not to be used for profit.[15]
[15] CPSU v Telstra Corporation Ltd (2001) IR 228 at [27] per Finkelstein J.
Applicant’s submissions
The applicant argued that the seriousness of the conduct by the respondent was inextricably linked to the question of the need for deterrence and relied on the decision in the Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 where the High Court found
The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.
The applicant contends that the respondent imposed two restrictions that were not reasonable and further applied the policy with respect to entry with a mobile phone inconsistently and to the detriment of the applicant. The contraventions occurred following a previous attempt by the applicant of exercising a right of entry. Deterrence of further contraventions should be the primary concern in setting a penalty. The applicant contends that it is open for the Court to conclude that the respondent’s contraventions in denying the applicant right of entry were deliberate in circumstances where the parties were engaged in bargaining for an enterprise agreement
The applicant contends that the respondent has been subject to adverse findings in Application / Notification by The Australasian Meat Industry Employees Union [2015] FWCFB 5228. Despite that finding (on strikingly similar facts), the respondent once again breached the right of entry provisions and as such the respondent’s conduct necessitates a penalty at the upper end of the range. The applicant argued that as a result other employers may observe in hindering the applicant’s exercise of right of entry that the respondent was prepared to pay a penalty at the lower end of the range in order to prevent the unions’ right of entry “especially so during bargaining.”
The applicant contends that the respondent’s case was doomed to fail. The respondent denied that the union was treated differently and maintained that stance throughout the proceedings however it was apparent that the respondent’s checklist only applied to the union’s right of entry and was created on 7 July 2021.[16] Further, the respondent’s contention that the prohibition on the union in denying the applicant a right to enter with a mobile phone on the basis of “health and safety concerns arising from possession of a mobile phone” was “with respect, nonsense.”
[16] Judgment [122]
The respondent continued to deny the applicant right to enter with a mobile phone until the matter was determined by the Court. The applicant contends that the respondent’s conduct amounted to a deliberate frustration of the applicant’s statutory rights. That conduct was particularly egregious, and a serious contravention of a statutory right of entry that “requires a penalty that not only reflects this, but also deters the Respondent and others from engaging in similar conduct.”
The applicant contends that union members were denied the opportunity to hold discussions with their union representatives during a period of bargaining and that loss and damage cannot be compensated for by money. There is a need for specific and general deterrence in those circumstances.
The applicant agrees the respondent is a large employer while the applicant is a statutory not-for-profit organisation of employees and that disparity favours a higher penalty.
In addition the respondent accepted that Mr Cotrell-Dormer was denied a right of entry with a mobile phone while at the same time denying that it hindered and obstructed the applicant on previous occasions the applicant contends the Court should take into account that the policy to prevent entry with a mobile phone was created by senior management. Reliance on the policy for health and safety reasons “was a furphy.” Further the respondent has failed to demonstrate any contrition.
In relation to quantum the applicant relied on the decision in Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Limited [2022] FCA 992 (“Crookes”) where the Federal Court imposed a penalty of:
•$25,000 for delaying entry by no more than 20 minutes on 26 May 2020;
•Combined $85,000 for denying entry on 27 and 28 July 2020;
•$30,000 for delaying entry by no more than two and a half hours on 11 November 2020; and
• $50,000 for denying entry on 12 November 2020.
All penalties were payable to the applicant union.
In comparing the penalty in Crookes (supra) for refusing entry on 12 November 2020 and the instant case the applicant contends that the respondent in that matter:
•did not have a history of adverse findings as the respondent does here;
•In Crookes the union was not in bargaining with the applicant at the time of the contraventions; and
•Crookes did not contravene section 502 and thus did not contravene a provision with an intentional element as the respondent has here.
The applicant contends that the instant matter requires the imposition of a penalty more than $50,000 and submits that $60,000 (or 90% of the maximum) for both contraventions is the appropriate penalty.
Further the penalty should be payable to the applicant in accordance with the decision in Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338 (Sayed) (especially [98] to [122]) a decision post - dating the decision in CPSU V Telstra Corporation Ltd (2001) IR 228 (Telstra) relied on by the respondent at [31] of the respondent’s submissions. The applicant argued that the Court was being led into error by the respondent in submitting (at [15] of the respondent’s submissions) that “This was not a case of an employer deliberately denying entry to a permit holder – it was simply the phone which was not welcome.” The Court made no finding in that regard and the proposition advanced by the respondent is inconsistent with the Court’s findings that the contraventions occurred.
Respondent’s submissions in reply
The respondent filed brief submissions in reply on 3 November 2022 asserting there was no evidence before the Court that the parties were engaged in “bargaining for an enterprise agreement” when the applicant was not permitted to enter the premises with his mobile phone. The respondent contends that enterprise bargaining discussions commenced on 16 September 2021 and ended on 4 November 2021 and argued that no attempted right of entry was made during that period. I accept the respondent’s submission and find there was no evidence before the Court that the parties were at the time engaged in bargaining for an enterprise agreement.
Further there was no evidence before the Court that the respondent had previously contravened the FW Act nor any evidence that declarations were made by the Court that the respondent had refused the applicant a right of entry on previous occasions.
I accept the respondent’s submission that the fact that the checklist was imposed on the applicant (where the applicant was treated differently to other persons exercising a right of entry) did not necessarily “doom the respondent’s case to failure.”
Consideration
The circumstances of the matter were not without significance. On 17 August 2021 Mr Journeaux had a statutory right of entry to enter the respondent’s site to hold discussions with one or more employees. He was refused a right of entry and Mr Platten hindered or obstructed Mr Journeaux’s right of entry on the basis he was not permitted to enter the site in possession of his mobile phone.
The respondent relied on a policy developed by senior management the “Photography, Image Recording & Mobile Device Use Policy” (“the policy”) to prohibit Mr Journeaux from entering with his mobile phone. I was satisfied that the policy had little or no connection with occupational health and safety issues and did not generally apply to the premises. The policy had been in existence since December 2015 and had not been enforced against a union official the permit holder of a statutory right of entry before 25 June 2020. I accepted Mr Cottrell-Dormer’s evidence that he had regularly entered the site with his mobile phone until 25 June 2020 and had not been required to hand it over to security nor leave it outside the premises.
The policy was implemented inconsistently. A superannuation representative was not asked to hand over his mobile phone before coming onto the site;[17] a checklist was created that only applied to union officials;[18] truck drivers were permitted to go onto production areas with mobile phones notwithstanding there was a strict prohibition on any person having possession of a mobile phone in production areas.[19] Mr Platten accepted there was no safety risk should a union official have access to a mobile phone in the lunch room area (where information was exchanged with employees) and where employees had access to their mobile phones and government inspectors were not required to hand over their phones before entry onto the site.[20] The respondent’s conceded that there was no general prohibition stating that mobile phones could not be brought onto the site.[21] On the respondent’s own evidence the policy related to the respondent’s concerns regarding commercial confidentiality and protection of its commercial interests and reputation from those who would seek to harm it[22] and had little to do with occupational health and safety issues.
[17] Transcript 7 April 2022 p. 102 ln 13
[18] Transcript 7 April 2022 p.102 ln 22
[19] Transcript 7 April 2022 p.104 ln 32
[20] Transcript 7 April 2022 p.76 ln 8
[21] Transcript 7 April 2022 p. 100 ln 40
[22] Mr Matthews affidavit [6] Exhibit AM - 1
I was satisfied that the request by Mr Platten for Mr Journeaux not to enter the site with his mobile phone was not a reasonable request. There was nothing unique that distinguished a union official on health and safety grounds from any other individual be they an employee, contractor or truck driver such that the respondent could justify imposing the pre-condition as a reasonable requirement. I found that the “Photography, Image Recording & Mobile Device Use Policy” had little or no connection with occupational health and safety issues and did not generally apply to the premises. There was no rational or reasonable basis advanced for the differentiation by the respondent preventing the applicant entering the premises on policy (or any other grounds). Nor was any logical or rational reason offered for prohibiting Mr Journeaux entering the site with a mobile phone. Mr Platten’s evidence summarised the position the respondent took when he said that some visitors were permitted to bring their mobile phones onto the premises it “depends on the subject of their visit and what they are there for.”[23]
[23] Transcript 7 April 2022 p.75 ln 40 - 42
I accepted the evidence of Mr Journeaux and Mr Cottrell – Dormer both union officials that each official relied on their mobile phone to ensure that the employees’ rights under section 480 (b) of the FW Act were given effect to enable an employee to receive, at work, information and representation from officials and organisations. I was satisfied that Mr Platten’s conduct hindered or obstructed Mr Journeaux’s right of entry in preventing him from entering the site with a mobile phone, conduct that obstructed Mr Journeaux’s ability to enable an employee to receive information at work. To this end I was satisfied it was necessary for Mr Journeaux a union official to have access to a mobile phone to achieve the statutory objective to provide information to employees “who had a right to receive at work information from officials or organisations” by accessing information stored digitally on his mobile phone which included being able to refer to industrial instruments such as EBA’s maintained electronically through business records or relevant websites, members details, schedule further appointments, to respond to urgent inquiries that required reference to existing Awards and to provide information about pay rates and terms. There was no evidence during the hearing that the union was involved in enterprise bargaining at the time entry was sought to the site on 17 August 2021.
Both contraventions involved a single course of conduct and as such only a single penalty should be imposed to avoid imposing a double penalty on a single course of conduct.
The respondent is a large employer. I accept the applicant’s submission that the respondent’s conduct was deliberate not inadvertent. I am satisfied that there was some history between the parties after 25 June 2020 which was likely a catalyst for bringing the application but I do not accept the applicant’s conduct in commencing proceedings was an abuse of process.
I accept there were competing rights at hand between the parties including the right of a statutory permit holder to enter a site and conduct business and provide information to employees’ to ensure their rights were met “at work” as had occurred prior to 25 June 2020 where a union official had been permitted to enter the site with a mobile phone. Against that was the respondent’s right as occupier of the premises to make a reasonable request of the applicant to comply with an occupational health and safety requirement under section 491 of the FW Act. As the occupier of the premises the respondent was entitled to set conditions of entry for visitors no different from any other occupier which sets conditions of entry. I ultimately determined however that the respondent contravened the FW Act. The dispute between the parties involved a significant question of law impacting on future conduct which required determination. I take that into account as a factor in assessing penalty.
I accept the respondent’s submission that it is difficult to assess the consequences flowing from the respondent’s conduct and the loss and/or damage caused to the applicant. I note that the applicant contends the contravention occurred during a period when enterprise bargaining discussions were on foot. No evidence was adduced at the hearing regarding that contention which is disputed by the respondent. I reject the applicant’s submission in that regard.
No evidence was adduced that the respondent had previously contravened the FW Act. I take that into account. The imposition of a penalty under the FW Act is designed fundamentally to serve the public interest in acting as a deterrent to employers such as the respondent from engaging in conduct of the kind subject to my findings. In assessing penalty I take into account the need to deter the respondent from imposing unreasonable requests on the applicant in the future and to deter other employers from doing so. At the same time I take into account that both parties required the legality of the respondent’s conduct be determined by the Court.
Conclusion
In the circumstances I am satisfied only one penalty should be imposed and in that regard I impose a penalty of 45% of the maximum penalty which amounts to $29,970 which I round up to $30,000.
Pursuant to subsection 546 (3) of the FW Act the Court may order that a pecuniary penalty be paid to the Commonwealth, a particular organisation or a particular person. I adopt the statement by Finkelstein J in CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228; [2001] FCA 1364 at [25]- [28] that “it cannot be doubted that employer and employee organisations play a legitimate and important role in seeing that there is compliance with the provisions of the Workplace Relations Act.” I have considered the principles set out in Sayed v CFMEU.[24] I am satisfied that in this case the payment should be made to the applicant. Had the applicant not pursued the matter it is likely the prohibition on the applicant’s statutory right of entry would continue to be restricted by the pre-condition imposed by the respondent.
[24] Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4 (22 January 2016)
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin. Associate:
Dated: 15 November 2022
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