Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union
[2020] FCA 1662
•18 November 2020
FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 1662
File number: WAD 200 of 2019 Judgment of: COLVIN J Date of judgment: 18 November 2020 Catchwords: INDUSTRIAL LAW - application by commissioner for declarations, pecuniary penalties and personal payment orders - where respondents admit contraventions - determination of appropriate quantum of penalties for union, union officials and workers - consideration of principles of proportionality in fixing penalty - whether contraventions serious - whether history of past contraventions by union and officials justify penalty at or close to statutory maximum - whether admissions by respondents support discount on penalty - whether personal payment orders should be made against officials - consideration of whether power under Building and Construction Industry (Improving Productivity) Act 2016 (Cth) to make personal payment orders - declarations and orders for pecuniary penalties made - orders not made for personal payment orders Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 3, 46, 81, 94
Fair Work Act 2009 (Cth) s 546
Cases cited: Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247
Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2) [2020] FCA 202
Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382
Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181
BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336
Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482
Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118
Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383
Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177
Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20
The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256
Trade Practices Commission v CSR Ltd (1991) ATPR 41‑076
Division: Fair Work Division Registry: Western Australia National Practice Area: Employment and Industrial Relations Number of paragraphs: 118 Date of last submissions: 23 October 2020 (Applicant)
30 October 2020 (Respondents)Date of hearing: 7 July 2020 Counsel for the Applicant: Mr J Bourke QC with Mr A Pollock Solicitor for the Applicant: Clayton Utz Lawyers Counsel for the Respondents: Mr C Dowling SC with Mr T Borgeest Solicitor for the Respondents: Eureka Lawyers ORDERS
WAD 200 of 2019 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Respondent
MICHAEL BUCHAN
Second Respondent
GRAHAM CHARLES PALLOT (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
18 NOVEMBER 2020
THE COURT DECLARES THAT:
A.On 10 December 2018, the second respondent (Buchan), being an officer of the first respondent (Union) and acting in that capacity for the purposes of s 94 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (Act), contravened s 46 of the Act by organising unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project sites at Forrestfield, Bayswater, and Redcliffe (Buchan s 46 Contravention).
B.On 10 December 2018, the third respondent (Pallot), being an officer of the Union and acting in that capacity for the purposes of s 94 of the Act, contravened s 46 of the Act by organising unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project sites at Forrestfield, Bayswater, and Redcliffe (Pallot s 46 Contravention).
C.On 10 December 2018, the fourth respondent (Molina), being an officer of the Union and acting in that capacity for the purposes of s 94 of the Act, contravened s 46 of the Act by organising unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project sites at Forrestfield, Bayswater, and Redcliffe (Molina s 46 Contravention).
D.On 10 December 2018, the fifth respondent (Touhey) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Touhey s 46 Contravention).
E.On 10 December 2018, the sixth respondent (Ali) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Bayswater (Ali s 46 Contravention).
F.On 10 December 2018, the seventh respondent (Barron) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Bayswater (Barron s 46 Contravention).
G.On 10 December 2018, the eighth respondent (Colclough) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Colclough s 46 Contravention).
H.On 10 December 2018, the ninth respondent (Cole) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Cole s 46 Contravention).
I.On 10 December 2018, the tenth respondent (Davies) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Davies s 46 Contravention).
J.On 10 December 2018, the eleventh respondent (Dickerson) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Dickerson s 46 Contravention).
K.On 10 December 2018, the twelfth respondent (Doyle) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Doyle s 46 Contravention).
L.On 10 December 2018, the fourteenth respondent (Evans) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Evans s 46 Contravention).
M.On 10 December 2018, the fifteenth respondent (Feehan) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Feehan s 46 Contravention).
N.On 10 December 2018, the sixteenth respondent (Fitzgibbon) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Fitzgibbon s 46 Contravention).
O.On 10 December 2018, the seventeenth respondent (Gill) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Gill s 46 Contravention).
P.On 10 December 2018, the eighteenth respondent (Hale) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Hale s 46 Contravention).
Q.On 10 December 2018, the twentieth respondent (Honeyfield) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Honeyfield s 46 Contravention).
R.On 10 December 2018, the twenty-second respondent (Jones) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Jones s 46 Contravention).
S.On 10 December 2018, the twenty-third respondent (Kelang) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Kelang s 46 Contravention).
T.On 10 December 2018, the twenty-fourth respondent (Kilgour) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Kilgour s 46 Contravention).
U.On 10 December 2018, the twenty-fifth respondent (Kohli) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Kohli s 46 Contravention).
V.On 10 December 2018, the twenty-sixth respondent (Lilly) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Lilly s 46 Contravention).
W.On 10 December 2018, the twenty-seventh respondent (Martinez) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Martinez s 46 Contravention).
X.On 10 December 2018, the twenty-eighth respondent (McGroarty) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (McGroarty s 46 Contravention).
Y.On 10 December 2018, the twenty-ninth respondent (Mentesana) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Mentesana s 46 Contravention).
Z.On 10 December 2018, the thirtieth respondent (Moyes) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Bayswater (Moyes s 46 Contravention).
AA.On 10 December 2018, the thirty-first respondent (Muller) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Bayswater (Muller s 46 Contravention).
BB.On 10 December 2018, the thirty-third respondent (Peary) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Bayswater (Peary s 46 Contravention).
CC.On 10 December 2018, the thirty-fourth respondent (Pledger) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Pledger s 46 Contravention).
DD.On 10 December 2018, the thirty-fifth respondent (Pollard-Sharp) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Pollard-Sharp s 46 Contravention).
EE.On 10 December 2018, the thirty-sixth respondent (Pringle) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Pringle s 46 Contravention).
FF.On 10 December 2018, the thirty-seventh respondent (Rangitaawa) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Rangitaawa s 46 Contravention).
GG.On 10 December 2018, the thirty-eighth respondent (Rogers) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Bayswater (Rogers s 46 Contravention).
HH.On 10 December 2018, the thirty-ninth respondent (Schmidt) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Schmidt s 46 Contravention).
II.On 10 December 2018, the fortieth respondent (Scott) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Scott s 46 Contravention).
JJ.On 10 December 2018, the forty-first respondent (Seymour) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Seymour s 46 Contravention).
KK.On 10 December 2018, the forty-second respondent (Shrestha) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Shrestha s 46 Contravention).
LL.On 10 December 2018, the forty-third respondent (Tait) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Tait s 46 Contravention).
MM.On 10 December 2018, the forty-fourth respondent (Uremovic) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Uremovic s 46 Contravention).
NN.On 10 December 2018, the forty-fifth respondent (Vikingur) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Vikingur s 46 Contravention).
OO.On 10 December 2018, the forty-sixth respondent (Weeks) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Weeks s 46 Contravention).
PP.On 10 December 2018, the forty-eighth respondent (Williams) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Bayswater (Williams s 46 Contravention).
QQ.Pursuant to s 94 of the Act, the Union contravened s 46 of the Act by reason of:
(a)the Buchan s 46 Contravention;
(b)the Pallot s 46 Contravention; and
(c)the Molina s 46 Contravention.
(Union s 46 Contravention)
THE COURT ORDERS THAT:
1.Buchan pay a pecuniary penalty of $20,000 in respect of the Buchan s 46 Contravention.
2.Pallot pay a pecuniary penalty of $15,000 in respect of the Pallot s 46 Contravention.
3.Molina pay a pecuniary penalty of $20,000 in respect of the Molina s 46 Contravention.
4.Touhey pay a pecuniary penalty of $4,000 in respect of the Touhey s 46 Contravention.
5.Ali pay a pecuniary penalty of $4,000 in respect of the Ali s 46 Contravention.
6.Barron pay a pecuniary penalty of $4,000 in respect of the Barron s 46 Contravention.
7.Colclough pay a pecuniary penalty of $4,000 in respect of the Colclough s 46 Contravention.
8.Cole pay a pecuniary penalty of $4,000 in respect of the Cole s 46 Contravention.
9.Davies pay a pecuniary penalty of $4,000 in respect of the Davies s 46 Contravention.
10.Dickerson pay a pecuniary penalty of $4,000 in respect of the Dickerson s 46 Contravention.
11.Doyle pay a pecuniary penalty of $4,000 in respect of the Doyle s 46 Contravention.
12.Evans pay a pecuniary penalty of $4,000 in respect of the Evans s 46 Contravention.
13.Feehan pay a pecuniary penalty of $4,000 in respect of the Feehan s 46 Contravention.
14.Fitzgibbon pay a pecuniary penalty of $4,000 in respect of the Fitzgibbon s 46 Contravention.
15.Gill pay a pecuniary penalty of $4,000 in respect of the Gill s 46 Contravention.
16.Hale pay a pecuniary penalty of $4,000 in respect of the Hale s 46 Contravention.
17.Honeyfield pay a pecuniary penalty of $4,000 in respect of the Honeyfield s 46 Contravention.
18.Jones pay a pecuniary penalty of $4,000 in respect of the Jones s 46 Contravention.
19.Kelang pay a pecuniary penalty of $4,000 in respect of the Kelang s 46 Contravention.
20.Kilgour pay a pecuniary penalty of $4,000 in respect of the Kilgour s 46 Contravention.
21.Kohli pay a pecuniary penalty of $4,000 in respect of the Kohli s 46 Contravention.
22.Lilly pay a pecuniary penalty of $4,000 in respect of the Lilly s 46 Contravention.
23.Martinez pay a pecuniary penalty of $4,000 in respect of the Martinez s 46 Contravention.
24.McGroarty pay a pecuniary penalty of $4,000 in respect of the McGroarty s 46 Contravention.
25.Mentesana pay a pecuniary penalty of $4,000 in respect of the Mentesana s 46 Contravention.
26.Moyes pay a pecuniary penalty of $4,000 in respect of the Moyes s 46 Contravention.
27.Muller pay a pecuniary penalty of $4,000 in respect of the Muller s 46 Contravention.
28.Peary pay a pecuniary penalty of $4,000 in respect of the Peary s 46 Contravention.
29.Pledger pay a pecuniary penalty of $4,000 in respect of the Pledger s 46 Contravention.
30.Pollard-Sharp pay a pecuniary penalty of $4,000 in respect of the Pollard-Sharp s 46 Contravention.
31.Pringle pay a pecuniary penalty of $4,000 in respect of the Pringle s 46 Contravention.
32.Rangitaawa pay a pecuniary penalty of $4,000 in respect of the Rangitaawa s 46 Contravention.
33.Rogers pay a pecuniary penalty of $4,000 in respect of the Rogers s 46 Contravention.
34.Schmidt pay a pecuniary penalty of $4,000 in respect of the Schmidt s 46 Contravention.
35.Scott pay a pecuniary penalty of $4,000 in respect of the Scott s 46 Contravention.
36.Seymour pay a pecuniary penalty of $4,000 in respect of the Seymour s 46 Contravention.
37.Shrestha pay a pecuniary penalty of $4,000 in respect of the Shrestha s 46 Contravention.
38.Tait pay a pecuniary penalty of $4,000 in respect of the Tait s 46 Contravention.
39.Uremovic pay a pecuniary penalty of $4,000 in respect of the Uremovic s 46 Contravention.
40.Vikingur pay a pecuniary penalty of $4,000 in respect of the Vikingur s 46 Contravention.
41.Weeks pay a pecuniary penalty of $4,000 in respect of the Weeks s 46 Contravention.
42.Williams pay a pecuniary penalty of $4,000 in respect of the Williams s 46 Contravention.
43.The Union pay a penalty of $125,000 in respect of the Union s 46 Contravention.
44.The pecuniary penalties in orders 1, 2, 3 and 43 are to be paid to the Commonwealth of Australia within 28 days.
45.The pecuniary penalty in orders 4 to 42 are to be paid to the Commonwealth of Australia within 60 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
In December 2018, workers on three sites forming part of a major construction project in Perth, Western Australia walked off those sites and did not return to work for the rest of the day. They were encouraged to continue their strike on that day by officials of the Construction, Forestry, Maritime, Mining and Energy Union (Union). The Union has a long history of unlawful industrial action that is well known in this Court. In the present instance, the Union, relevant officials and workers admit that their actions involved unlawful industrial action contrary to s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (Act).
The Australian Building and Construction Commissioner (ABCC) seeks declarations and pecuniary penalties. It is accepted by all respondents that declarations of contravention should be made and that pecuniary penalties are appropriate. One of the main issues between the parties concerns the application of the recognised requirement that the pecuniary penalties be proportionate. In particular, the degree to which the antecedents of the Union (and the officials involved) should bear upon the assessment of quantum and whether they might justify a penalty at or close to the maximum even if a consideration of all of the circumstances would not cause a Court to conclude that the contravention is so grave as to warrant the maximum prescribed penalty.
There is also as issue as to whether orders should be made to ensure that the penalties imposed upon the officials will be borne by them personally.
Proportionality
It is well established that the sentence to be imposed for a criminal conviction should not be increased beyond what is proportionate to the crime in the sense that the sentence must fit the nature of the criminality. Further, where there is a maximum then it is to be reserved for cases which are so grave that they are a category where the maximum should be imposed, sometimes termed 'the worst category', but see The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 at [19]‑[20]. The maximum is reserved for cases where the criminality, adjudged by considering both the nature of the crime and the circumstances of the criminal, brings the case within the category of cases where the maximum penalty is justified. Other cases are to be placed upon a spectrum of seriousness and a sentence by reference to the yardstick of the maximum is to be imposed: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [31]. In order to place the offending on the spectrum, judgments must be formed both as to the gravity of the offending and the moral culpability of the offender for the criminal behaviour.
The criminal law aligns criminal liability with moral culpability. Assessing moral culpability for criminal conduct in the context of sentencing requires the consideration of antecedents and other matters that bear upon the retributive aspect of assessing an appropriate criminal sentence. The sentence must be a proportionate punishment for the seriousness of the crime to be evaluated not just by reference to its consequences or the quality of the act or the prospect of its repetition, but by a view as to the extent of the moral culpability for the crime (which will often be greater where there has been relevant past offending). However, the determination of an appropriate sentence should not be approached in a manner that will result in further punishment for past offending.
Although the process for determining a civil penalty has a number of aspects in common with determining an appropriate sentence, it is not the same in every respect. The extent to which there is a difference in approach as between the assessment of the duration of a custodial criminal sentence and the quantum of a civil monetary penalty was carefully and closely considered in the recent decision in Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177, a five member appellate court comprising Allsop CJ, Besanko, White, Wigney and Bromwich JJ. The decision in Pattinson was delivered after the hearing in this matter, but the parties were afforded an opportunity to put on further submissions as to its relevance to the present case.
As was explained in Pattinson, whereas both in determining an appropriate criminal sentence and in fixing the quantum of an appropriate civil penalty the Court undertakes a contextual consideration of matters that are relevant to the assessment task in order to arrive at a single result by a process of instinctive synthesis and, in both instances, the result must be 'proportionate', the respect in which a civil penalty must be proportionate is not the same as the respect in which a sentence for a crime must be proportionate. Whether a civil penalty is proportionate is not to be determined by any view as to the seriousness of the contravention informed by a view as to the moral culpability of the contravenor taking account of antecedents. Rather in order to be appropriate to the circumstances of the particular case, a civil penalty must fit the purpose of promoting future compliance with the legislation in cases of the kind under consideration both by the contravenor and others.
By authorising the imposition of a civil penalty, the legislature puts a price on contravention in order to deter the contravenor, or others tempted to contravene, from engaging in similar behaviour. The specified maximum penalty establishes Parliament's view as to the most that will be required in order to achieve that purpose in any given case allowing for the divergence in circumstances that may pertain. By reference to that yardstick, the quantum of a penalty must be proportionate to the statutory purpose of promoting compliance by imposing a penalty up to the maximum. In that particular respect, the task to be undertaken in fixing a civil penalty is not analogous to the task in determining an appropriate sentence in a criminal case.
Nevertheless, in both instances, the maximum is to be reserved for cases adjudged to be of the requisite degree of seriousness based upon an assessment of the spectrum of contraventions. In both instances, the maximum must be reserved for those instances where a consideration of all relevant factors justifies the greatest penalty. In both instances, the objective circumstances of the unlawful conduct must be evaluated such that, all other things being equal, higher penalties are to be imposed for conduct that, viewed objectively, is a more serious breach of the law. However, whereas a view of moral culpability has a significant part to play in fixing a criminal sentence to the extent of its retributive aspect (an aspect that may import consideration of antecedents) it has no part to play in fixing an appropriate civil penalty. Rather, it is the purpose of promoting compliance that assumes significance. The focus on deterrence will mean that the overall penalty may be more (or less) than the penalty that might otherwise be imposed if there was no particular material indicating a concern as to future compliance (or a degree of assurance that repetition was unlikely). However, the overall quantum of the penalty must still reflect an assessment of what is required into the future to deter conduct of the kind in the instant case, not an imposition of a further penalty for past contravention or a moral judgment that likely future disregard for compliance itself justifies the maximum civil penalty in the instant case.
For present purposes, the key conclusion in Pattinson is that giving effect to the purpose of deterrence must not disconnect or decouple the assessment process from a need to recognise that the statutory maximum applies to a range of objective seriousness as to the facts and circumstances that may comprise a contravention (see below). Therefore, the penalty in a particular case that is imposed by reason of substantial concerns as to the need for specific deterrence must not depart to such an extent from the penalty that might otherwise be imposed if such concerns were not present that it might be viewed as additional punishment for past contraventions or the embodiment of a moral judgment as to the level of punishment required in order to effect appropriate retribution. It must not become 'untethered' from the objective circumstances of the instant contravention.
In addition, it may be noted that when it comes to putting a price on the contravention, the assessment of a civil penalty under laws regulating behaviour in labour markets gives rise to particular considerations. In many instances unions and their officials will not stand to benefit directly from behaviour that contravenes laws that regulate industrial action. Promotion of compliance by those parties may require particular focus upon propensity and past behaviour or the motivations behind the contravening conduct or the financial resources of the union in order to ensure that penalties are set at a level that will fit the purpose of promoting future compliance with the legislation. Indeed, past contraventions may evidence such a degree or strength of unwillingness in the contravenor to disobey the law that such unwillingness will be highly relevant to deterrence: Pattinson at [115] (Allsop CJ, White and Wigney JJ). However, as has been observed, the reason for considering past behaviour when fixing a civil penalty is not to add to the past burden and penalise again the past behaviour, nor is it to reflect some form of moral outrage concerning likely repetition of contravening behaviour. Rather, it must still adhere to the requirement, inherent in the specification of a maximum penalty, that penalties fall on a spectrum where the maximum is reserved for those instances where all aspects of the circumstances including the serious of the nature of the objective circumstances comprising the offending mean that it is at the extreme end of the spectrum where the maximum penalty should be applied.
Outcome
For the following reasons, in the circumstances of the present case, imposing a penalty that appropriately fits the purpose of compliance requires a penalty to be imposed upon the Union that is much higher than would have been the case if there was no history of past contraventions. This is a case where the Union's past contraventions indicate such a degree of unwillingness to comply with the requirements of industrial laws such as those in the Act that it is a matter that is highly relevant to deterrence. However, this is not a case where a penalty at or near the statutory maximum is justified because a penalty of that order would not be commensurate with the objective circumstances of the contravening conduct in this particular instance. The same degree of involvement in past contraventions has not been demonstrated in the case of the officials and the level of penalty for them should be influenced principally by the seriousness of the contravention. The agreed penalties for the Workers are appropriate. Therefore, having regard to the relevant statutory maximum in each case, the penalty for the Union will be $125,000, the penalty for Mr Buchan and Mr Molina will be $20,000, the penalty for Mr Pallot will be $15,000 and the penalty for each of the workers will be $4,000.
It is not appropriate for orders to be made requiring the Officials to pay personally the penalties to be imposed upon them.
The issues for determination
The Act prohibits unlawful industrial action: s 46. Industrial action is unlawful if it is not protected industrial action. The Act adopts the definition of protected industrial action to be found in the Fair Work Act 2009 (Cth), being workplace legislation of broad application. In respects that are not presently relevant, the Act excludes from that definition certain types of action engaged in in concert.
In December 2018, each of the respondents engaged in conduct which is admitted by them to have been unlawful industrial action. It concerned a walk‑off from three of the construction sites for the Forrestfield to Perth Airport Rail Link Project (Project). The respondents comprise the Union, three senior officials of the WA Branch of the Union, being Mr Michael Buchan, Mr Graham Pallot and Mr Walter Molina (together Officials), and a number of individual workers who participated in the walk‑off (Workers).
In 2019, proceedings were brought by the ABCC in this Court concerning the walk‑off.
The parties are now agreed that it is appropriate for the court to make declarations of contravention of the Act by the respondents and to make orders imposing pecuniary penalties. It is for the Court to determine whether it is indeed appropriate to make those orders.
As has been indicated, there are two matters on which the parties are not agreed. First, the quantum of penalties that are appropriate to impose upon the Union and the Officials. As to penalty, the parties disagree as to whether the admitted contraventions should be characterised as serious. They also disagree as to the manner in which principles of proportionality bear upon the assessment of appropriate penalties and whether the admissions by the respondents support a discount on the penalty that might otherwise have been imposed after a contested final hearing. Second, whether personal payment orders should be made in respect of each of the Officials with the consequence that they will be obliged to satisfy those orders out of their own funds.
Summary of admitted facts
The Workers were employees of Salini Australia Pty Ltd (Salini) and members of the Union. Salini was in the business of engaging in building work. At all material times there was an enterprise agreement in place that covered Salini and the Workers (EA). Salini was obliged to provide the Workers to a joint venture that was contracted to design and construct tunnels, stations and associated works for the Project.
On 6 December 2018, Mr Molina and others from the Union exercised statutory rights to enter the Project site and one or more of them discussed the payment of redundancy pay by Salini to its employees at the end of the Project. After that discussion, an employee of Salini asked the senior site supervisor for Salini whether the employees would get redundancy pay. He was told that the employees did not get redundancy pay. Later that day, Mr Pallot sent an email to Salini making an inquiry about payment of redundancy pay.
On the evening of 7 December 2018 (a Friday), Mr Molina telephoned Mr Trevor Dobson, the human resources manager for Salini, and said that he had some concerns about the application of the redundancy clause in the EA . He said that it appeared that there are different responses for different sites (one in Redcliffe and one in Forrestfield). Mr Dobson said the matter would be discussed and he would get back to Mr Molina. Mr Molina then said that there was some talk about strike action and he wanted to change the right of entry visit from Bayswater to Redcliffe so he could 'speak to the guys at Redcliffe at their morning break'. Mr Dobson said that would be fine.
On 10 December 2018 (Monday) at around 5.30 am, Mr Molina attended the Forrestfield location of the Project site accompanied by another person and set up a table in the parking area. It was identified with Union logos. A senior supervisor for the site, Mr Brendan Lucas, approached Mr Molina and asked what he was up to. Mr Molina responded: 'I am having a chat to the guys this morning as they walk up. We are not hassling anyone as they walk up'.
During the pre‑start meeting at the site at 6.30 am that morning, an employee asked whether they would get redundancy pay. He was told: 'We do not have an answer on redundancy pay'.
During morning break, a section manager for Salini read out a document (Statement) to the employees which said, amongst other things, that the employees were covered by the EA and that the redundancy clause in the EA did not apply to those employed on a specified project basis and that notwithstanding Salini wished to recognise employees with long service to the Project and was considering the issues raised and that industrial action taken in relation to redundancy pay would be unprotected. A complaint was raised in response and the response was given: 'Just continue to work guys. As the letter says, the company is considering the matter'.
At around noon, the senior supervisor received text messages from a number of Workers each saying that the employee was unwell and was leaving work. Twenty three of the Workers located at the Forrestfield site ceased work and did not return for the rest of the day. As a result, the planned tasks for the day were not completed, the remaining employees were sent home and half a day's productivity on the site was lost.
Also on 10 December 2018 (Monday), at the pre‑start meeting at the Bayswater site a question was asked as to whether the employees were getting redundancy. They were given the following response by the site structures supervisor, Mr Johnson: 'It's hard to decipher but I don't believe so'. At various times during the morning employees approached Mr Johnson and said they might attend a meeting at midday outside the Project head office area. In response Mr Johnson said they should not leave the site as it was clear they could be in breach of company policy.
At around noon, seven of the Workers located at the Bayswater site ceased working and did not return for the rest of the day. As a result, the planned tasks for the day were not completed and half a day's productivity on the site was lost.
Also on 10 December 2018 (Monday) at a meeting with employees of Salini at the Redcliffe site for the Project, Mr Mario Markovic, the section manager, read out the Statement and then said 'Just give the company a bit of time'. An employee asked for five minutes to talk about the issue. He was told that the employees could take 10 minutes but then they were to return to work.
At around noon, ten of the Workers located at the Redcliffe part of the Project ceased working and did not return for the rest of the day. As a result, the planned tasks for the day were not completed, scaffold workers had to be sent home and half a day's productivity on the site was lost.
The conduct of employees on 10 December 2018 at each of the Forrestfield, Bayswater and Redcliffe sites for the Project together constituted a half day of strike action (Half Day Strike).
From about 12.30 pm on 10 December 2018, a group of people that included the Officials and the Workers involved in the Half Day Strike attended the project head office area for the Project. They conducted a meeting in the carpark with attendees that included the Workers (Carpark Meeting). The meeting in the carpark was organised by the Officials. The Officials addressed the meeting and encouraged the Workers engaged in the Half Day Strike to continue their action.
At around 1.00 pm the same day, Mr Molina telephoned Mr Dobson and said that he could either address the meeting in the carpark or meet with officials of the Union. Mr Dobson said that he would meet with officials of the Union in the head office. Mr Molina said that the attendees would be the Officials and a representative of the employees, being Mr Touhey. The meeting was held with those persons in attendance. During the meeting with Mr Dobson, the following conversation occurred:
Dobson: 'What's going on?'
Pallot: 'the workers have issues with the application of redundancy pay'
Dobson:'When are people going back to work? I think it's in everybody's interests to go back to work because there are potentially serious ramifications'
Pallot:'I don't think we are in a position to get people back today - but they'll be back tomorrow morning. We are not asking you to change your ECA position on redundancy, we want you to review how you apply that position. There is no issue with the scale or the clause - just the time they do or don't get a redundancy. We think the redundancy pay should kick in at the end of the project for all employees. We want to have another meeting to resolve this matter'.
Dobson:'I understand the guys are upset about how the redundancy is supplied. The company already has advised the union and civil staff that the issue would be considered by the company. I don't have a concluded position to advise you of at the moment but I will once considerations have been completed. I'd like to see it dealt with one way of [sic] the other as quickly as possible but I can't give a definitive timeframe'.
Pallot: 'We'll go and tell them what you said'.
Touhey:'The guys are frustrated - they've been there quite awhile, they want to be paid a redundancy and they are a bit angry.
Admitted contraventions
The Workers admit that by participating in the Half Day Strike they engaged in industrial action that was not protected industrial action which affected Salini which is a constitutionally covered entity within the meaning of the Act and they thereby each engaged in one count of unlawful industrial action contrary to s 46 of the Act.
The Officials admit that they organised and were involved in the unlawful industrial action by reason that they encouraged the continuation of the Half Day Strike by what they said at the Carpark Meeting and each is liable for one contravention of s 46 of the Act.
The Union admits that by reason of s 94 of the Act the conduct of each of the three Officials was conduct of the Union and that the Union is liable for at least one contravention of s 46 of the Act and the ABCC seeks only to establish one contravention of the Act by the Union.
Declaratory relief
The ABCC seeks declarations in respect of the admitted contraventions. The respondents do not oppose the making of the declarations. The role of the Court is not merely to rubber stamp the making of declarations where they are agreed. The principles to be applied in determining whether to grant declaratory relief in such circumstances were summarised in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 at [90]‑[93]. Having regard to those principles, I am satisfied that the declarations should be made. The proposed declaratory orders reflect contraventions that have been demonstrated by the facts as agreed. They identify the nature of the contravening conduct. They will serve to record the Court's disapproval of the conduct, inform others of the nature of the contravening conduct and assist in deterring others from engaging in similar conduct. They will also identify the conduct that is the subject of the penalties that are to be imposed.
Pecuniary penalties
It is not suggested that this is a case where pecuniary penalties are not appropriate. I am satisfied that the admitted facts demonstrate that pecuniary penalties are appropriate. Therefore, the only issue concerns the quantum of appropriate penalties.
In the case of the Workers, the parties are agreed that an appropriate penalty would be $4,000 for each employee. I am satisfied that the agreed figure falls within the range of possible appropriate penalties for the conduct. Having regard to the decision in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 at [57]‑[58] (Agreed Penalties Case (HC)), I am satisfied that the Court should give effect to the submission of the parties and will fix a penalty in the agreed amount.
In the case of the Union and the Officials, the parties are not agreed as to the appropriate penalty. This is principally due to a difference between them on issues concerned with (a) proportionality and past contraventions; and (b) cooperation and contrition.
Relevant statutory provisions
The express object of the Act is to provide an improved workplace relations framework for building work in Australia: s 3(1) of the Act. The legislation seeks to ensure that building work is carried out 'fairly, efficiently and productively' without distinction between interests of industry participants so as to benefit the Australian economy as a whole. The means by which the Act aims to achieve that object include 'promoting respect for the rule of law' and 'ensuring that building industry participants are accountable for their unlawful conduct': s 3(2). The inclusion by Parliament of express statements of this kind indicate that part of the mischief being addressed by the Act as a whole is a lack of respect for the rule of law and a lack of accountability for unlawful conduct within the building industry to the detriment of the Australian economy.
The Act provides for the imposition of pecuniary penalties where there has been a contravention. The level of penalty is graded. Where, as in this case, the penalty attracts a Grade A penalty, the maximum at the relevant time was $210,000 for a respondent that is a body corporate and otherwise is $42,000.
The nature of provisions in the Act, such as s 46, is that they may be contravened by conduct which may fall within a relatively wide spectrum of seriousness measured by reference to the character and quality of the conduct. The nature, quality and extent of conduct that may amount to unlawful industrial action and its consequences may be quite varied.
As to the considerations to which there must be regard in determining an appropriate penalty, s 81(6) of the Act expressly provides:
In determining a pecuniary penalty under paragraph (1)(a), the court must take into account all relevant matters, including:
(a) the nature and extent of the contravention; and
(b)the nature and extent of any loss or damage suffered because of the contravention; and
(c)the circumstances in which the contravention took place; and
(d)whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.
Other penalty provisions, such as those to be found in the provisions of the Fair Work Act under consideration in Pattinson are expressed in general terms. The relevant provision in the Fair Work Act states that the Court 'may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate': s 546(1). It then specifies a maximum.
As was made plain by the High Court in the Agreed Penalties Case (HC) (approving French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41‑076 at 52,152): 'whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in … CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance': at [55] (footnotes omitted). The Agreed Penalties Case (HC) was concerned with a contravention of the former Building and Construction Industry Improvement Act 2005 (Cth) (which contained equivalent language to s 81(6) of the Act).
The overall structure of s 81(6) in requiring the Court to take into account all relevant matters and then specifying expressly certain matters as being included in that general requirement is familiar. It is the form adopted in the Australian Consumer Law (which forms Schedule 2 to the Competition and Consumer Act 2010 (Cth)). However, the express requirement in s 81(6)(d) of the Act is not to be found in the Australian Consumer Law. The additional language appears to reflect the concerns stated in the express legislative object.
Nevertheless, it is important to observe that s 81(6)(d) is not the only consideration to be taken into account. Also, just as is the case under the Australian Consumer Law and in the more general provision in the Fair Work Act the task is to determine an appropriate penalty that is guided by all relevant matters. It is a task that is to be undertaken within the context of an application to the Court that concerns a particular contravention. None of the provisions confer a general jurisdiction on the Court to impose a penalty based solely on a history of past contraventions directed to encouraging future compliance. Rather, a penalty is only to be imposed in the context of an allegation of a specific contravention. Therefore, its quantum must be a response that will promote the public interest in compliance in cases of that kind. It must deal with the type of case at hand. That is fundamental to the nature of the task entrusted to the Court where a civil penalty is to be assessed for a contravention. The task is one of determining an appropriate remedy in the circumstances of the contravening conduct.
In order to give effect to a statutory provision of that kind, the penalty must fit the purpose of promoting compliance with the legislation in cases where the nature of the contravening conduct is akin to the case at hand. In order to undertake that task, the relevant considerations are confined to those that pertain to the instant contravention. However, unless a particular consideration is identified by the legislation as requiring particular or great weight or significance in the task of assessment, all must be synthesised in assessing the penalty that fits the purpose of ensuring compliance in cases where the contravening conduct is of the same kind.
As has been observed, it is well established that there must be due regard to the maximum penalty in fixing a penalty. It provides a yardstick which invites comparison with the case where the maximum is justified. However, that is not to say that the penalty for a contravention where the objective circumstances that amount to the contravening conduct might be described as in the mid-range for seriousness will attract a penalty within the middle of the range between no penalty and the maximum. There will be cases where other relevant considerations mean that a penalty that is greater or less than the range of penalties that might be applied if viewed solely through the prism of seriousness is the appropriate penalty in the particular case. As was said in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 at [156]:
Care must be taken to ensure that the maximum penalty is not applied mechanically, instead of it being treated as one of a number of relevant factors, albeit an important one. Put another way, a contravention that is objectively in the mid-range of objective seriousness may not, for that reason alone, transpose into a penalty range somewhere in the middle between zero and the maximum penalty. Similarly, just because a contravention is towards either end of the spectrum of contraventions of its kind does not mean that the penalty must be towards the bottom or top of the range respectively. However, ordinarily there must be some reasonable relationship between the theoretical maximum and the final penalty imposed.
In view of what has been said in Pattinson, may be taken perhaps with separately identifying the nature of the contravening conduct as being in the mid-range when the task requires a synthesis of all factors. However, I take the point to be simply that penalties must reflect, amongst other things, the differences between the types of conduct that may amount to a contravention of the relevant provision. There is a spectrum which requires the evaluation of a matrix of relevant considerations one of which is the nature of the objective circumstances comprising the contravention. It is the evaluation of where the case falls within that spectrum that indicates where the penalty should lie given that Parliament has specified a maximum penalty (not a fixed penalty). It is not a gradation by reference only to the history of past contravening behaviour. Nor is it a gradation solely by reference to an assessment of the risk of future contravention such that both a minor or technical contravention and contravening conduct of the most serious character could attract a similar penalty if the risk of repetition in each case was assessed as being extremely likely. Parliament has set the yardstick. It is a yardstick where the quantum of the overall penalty must reflect all circumstances including the nature and quality of the objective circumstances comprising the contravention and the extent to which past contravention indicates a need for a higher penalty than might otherwise be the case due to the interests of specific deterrence.
The point was articulated in the following terms by the plurality in Pattinson at [195]‑[201]:
The error of the primary judge here, being the error of the majority in Broadway on Ann [Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 126; (2018) 265 FCR 208], was that in the name of utilising a notion of recidivism of the union it was seen as in accordance with principle to impose a penalty at the highest level because of the number of prior contraventions, in what was said to be the demonstrated intention of promoting a no-ticket no-start policy, but without any real evaluation of, or weight being given to, the objective characteristics of what occurred as part of the assessment of what was the subject contravention of the penalty to be imposed. Thus, the penalty for the instant contravention became subsumed by a proposition that the time had come, once the perceived threshold level of prior contravening was reached, that henceforth all contraventions would be treated as of the worst category or warranting the maximum penalty, irrespective of the nature and the character of the human conduct that constituted the contravention in question. This can be seen in the approach of the primary judge at [71], [72], [83] and [84] set out above. The past has been used beyond the point of characterising the nature of the contravening (which is the subject of the imposition of the penalty) and has become the reason for the maximum penalty irrespective of the nature and seriousness of the instant contravening. To ask the rhetorical question in the last sentence of [72] of the primary judge's reasons as a supporting proposition is to raise the object of the imposition of the penalty to a justification for ignoring the nature of the contravening, and so to impose the penalty because of, and framed by, only the past. This is not to use, but to jettison, a notion of proportionality by setting to one side the nature of the conduct that comprised the contravention. The penalty becomes imposed not for the instant contravention but, to some degree, for the past, again. This approach elevated past offending to be the defining consideration of the character or gravity of the contravening, irrespective of the actual reality of what constituted the contravention. It was not an assessment of the gravity of the circumstances, including (but not limited to or defined by) what could be drawn legitimately and contextually as to the instant contravention from past contraventions; rather, it was to draw from the past a conclusion that, regardless of how objectively serious or not the conduct in question was otherwise, the maximum penalty should henceforth be imposed.
In the approach we have taken, the notice of contention does not strictly arise in that we do not accept that the assessment of the gravity of the contravention is undertaken divorced entirely from what can be legitimately drawn about the instant contravention from prior contraventions. Nevertheless the notice of contention was important to frame and direct the argument on proportionality and upon the statutory task involved in applying s 546. The notice of contention was in the following form:
1. The criminal law sentencing principle of 'proportionality' is not a relevant consideration for the fixing of a pecuniary penalty for a contravention of a civil remedy provision of the Fair Work Act 2009 (Cth) (FW Act).
2. In the alternative to Ground 1, it is not mandatory to apply the criminal law sentencing principle of 'proportionality' when undertaking the function of fixing a pecuniary penalty for a contravention of a civil remedy provision of the FW Act but, in the Court's discretion, a court may have regard to that principle if it will assist the Court in the discharge of its function.
3. In the alternative to Ground 1 and further to Ground 2, if the criminal law sentencing principle of 'proportionality' is a mandatory consideration or is otherwise a relevant consideration, nevertheless, such principle does not act as a fetter or a ceiling so as to restrict or constrain the level of penalties that a court may impose so as to meet the predominant, if not the only, object of fixing pecuniary penalties for contraventions of civil remedy provisions of the FW Act, namely, deterrence (both general and specific).
For the reasons that we have already set out, the notion of proportionality inheres in the task of imposition of an appropriate penalty in aid of the object of deterrence. It is not a free-standing principle to be seen as based on retribution, as the principle of proportionality in sentencing for crime can be (at least historically). Rather, the relevance of the notion of proportionality inheres in the statutory task of the imposition of a reasonably appropriate penalty for the contravention before the court to deter such or like contraventions, and a rejection of the double imposition of penalty consequences.
In a clear, frank and open submission, senior counsel for the Commissioner recognised that, to support the notice of contention, and, really, to support the primary judge's approach (as discussed above), he must support the contention that deterrence, as the sole object of the imposition of the penalty, and the terms of s 546, together, entitled the court, because of past contraventions, to impose a penalty more than once for the same contravention or to a level that bore no real relationship to the facts and circumstances of the instant contravention: That once the past contraventions reached a certain point, it could be appropriate to deter any contravention, whatever its seriousness otherwise, by the maximum penalty, irrespective of the acts and circumstances that otherwise made up the contravention.
That was, in effect, the approach of the primary judge, which needed the notice of contention and the approach within it, to support it.
Notwithstanding our view that the primary focus of the second appellant's submission that the prior contraventions cannot be relevant to the assessment of the gravity of the contravention is wrong, we would nevertheless, for the above reasons, uphold grounds 1.6 and 1.7 of the appeal and dismiss the notice of contention.
The assessment of what is an appropriate penalty is informed by a reasonable appreciation of all the circumstances that rationally go to an assessment of the gravity and seriousness of the contravention before the court, including (but not limited to) what can be drawn from past conduct as to the instant contravention, and that rationally go to an assessment of what is reasonably necessary, and thus appropriate, to deter such or like contravention in the future by the contravenor or by others. If a grave contravention and a much less serious contravention (thus analysed in the same context) are both said to require the imposition of the maximum penalty, it is difficult to conclude otherwise than that in respect of the latter contravention, the less serious, the penalty is being imposed for both the present contravention and for the past contraventions: a conclusion that was frankly recognised in the argument on the notice of contention. That is also why we consider the approach of the majority in Broadway on Ann to award the maximum penalty for each and every contravention to have been a misapplication of principle.
The same issue was addressed by Besanko and Bromwich JJ in the following way at [227]‑[230]:
The possible approaches that could be taken to the role of prior contraventions in the task of imposing a civil penalty for a further contravention may be summarised as follows:
(1)Prior history is not relevant to the characterisation of the seriousness or gravity of the instant contravening conduct and only plays a role in deciding where in the range of already appropriate penalties that conduct falls. This is the argument advanced by the appellants, and rejected by the Chief Justice, White and Wigney JJ, and by us.
(2)Prior history can inform the seriousness of the instant contravening conduct to the extent of justifying the imposition of the maximum penalty for conduct that is not of itself of that character, because of the primacy of the role of deterrence. This is the approach urged upon us by the respondent's notice of contention, being in substance what the primary judge in fact did despite his Honour's comments perhaps suggesting the contrary. This unavoidably entails putting the principle of proportionality identified in Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 (Veen No 2) to one side. It is an approach that is contrary to any persuasive authority or the proper understanding of the relevant principles of civil penalty imposition derived from criminal sentencing, and is also rejected by the Chief Justice, White and Wigney JJ, and by us.
(3)Prior history may be relevant to an assessment of the seriousness or gravity of the instant contravening conduct, but neither that history, nor the object of deterrence, can result in a penalty that is disproportionate to the contravening conduct itself, having regard to the maximum penalty provided. This is directly supported by the principles stated in Veen No 2, especially at 477-8, as analysed by the Chief Justice, White and Wigney JJ. This is the correct approach.
There was no material difference in the expression of the principles concerning the role of prior contraventions in fixing a civil penalty by the majority as compared to Bromwich J in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (Broadway on Ann) [2018] FCAFC 126; 265 FCR 208 and in our joint judgment in Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 270 FCR 39, which accord with (3) above. The difference was in the application of those principles. The application of those principles by the majority in Broadway on Ann, and by the primary judge in this case, was plainly wrong for the reasons identified by the Chief Justice, White and Wigney JJ. The approach taken by the primary judge was also contrary to the weight of appellate and single judge authority in this Court. It was contrary to the manner in which the principles in those decisions are to be applied having regard to the principle of proportionality derived by close analogy with the approach to criminal sentencing taken in Veen No 2. His Honour was not at liberty to disregard that lineage of decisions, nor to misapply them. We agree with what the Chief Justice, White and Wigney JJ say about that matter (at [187]-[188]).
The primary judge at [53] correctly identified the similarity between the judgment of Bromwich J in Broadway on Ann and our judgment in Parker in relation to the application of the principles based on Veen No 2. However, in the primary judgment his Honour erroneously attributed to us in Parker (at [53], [63] and [67]), and to Bromwich J in Broadway on Ann (at [46]) a view that prior contravening history is never relevant either to the assessment of the seriousness of a contravention, or to the determination of the range within which a penalty may properly fall. That interpretation would also be to reject, rather than to apply, Veen No 2.
Rather, as we endeavoured to explain in Parker at [341]-[342] and [348], and as Wheelahan J correctly recognised in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 at [96], in properly applying Veen No 2, prior contravening history may be able to be demonstrated to be relevant to an assessment of the seriousness or gravity of the instant contravening conduct. However, neither that history, nor the object of deterrence, can result in a penalty that is disproportionate to contravening conduct itself, having regard to the maximum penalty. That is, prior contraventions may be illuminating in properly characterising what has happened, including the extent of the need for deterrence. This may in turn assist in determining both the appropriate range within which a penalty may be imposed, and in determining where within that range the penalty to be imposed should fall.
Additional time was sought to pay in the event that personal payment orders were made but it is not necessary to consider the question of time for payment in circumstances where those orders will not be made.
There will be declarations and civil penalty orders in the terms I have indicated earlier in these reasons.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate:
Dated: 18 November 2020
SCHEDULE OF PARTIES
WAD 200 of 2019 Respondents
Fourth Respondent:
WALTER VINCENZO MOLINA
Fifth Respondent:
GERALD TOUHEY
Sixth Respondent:
PAUL ALI
Seventh Respondent:
CHAD BARRON
Eighth Respondent:
BRIAN COLCLOUGH
Ninth Respondent:
MATTHEW COLE
Tenth Respondent:
RYAN DAVIES
Eleventh Respondent:
RODNEY DICKERSON
Twelfth Respondent:
DAVID DOYLE
Fourteenth Respondent:
DAVID EVANS
Fifteenth Respondent:
JULIEN FEEHAN
Sixteenth Respondent:
NIALL FITZGIBBON
Seventeenth Respondent:
MATTHEW GILL
Eighteenth Respondent:
GEOFFREY HALE
Twentieth Respondent:
SHAYNE HONEYFIELD
Twenty-Second Respondent:
CHERYLE JONES
Twenty-Third Respondent:
DAU BETHOU KELANG
Twenty-Fourth Respondent:
RYAN KILGOUR
Twenty-Fifth Respondent:
TRISTAN KOHLI
Twenty-Sixth Respondent:
RYAN LILLY
Twenty-Seventh Respondent:
RAMON MARTINEZ
Twenty-Eighth Respondent:
GAVIN MCGROARTY
Twenty-Ninth Respondent:
MATTHEW MENTESANA
Thirtieth Respondent:
DARREN MOYES
Thirty-First Respondent:
KEITH MULLER
Thirty-Third Respondent:
MATTHEW PEARY
Thirty-Fourth Respondent:
RICHARD PLEDGER
Thirty-Fifth Respondent:
BRADLEY POLLARD-SHARP
Thirty-Sixth Respondent:
BEN PRINGLE
Thirty-Seventh Respondent:
GARY RANGITAAWA
Thirty-Eighth Respondent:
JOEL ROGERS
Thirty-Ninth Respondent:
WARREN SCHMIDT
Fortieth Respondent:
IAN SCOTT
Forty-First Respondent:
KEVIN SEYMOUR
Forty-Second Respondent:
RIKEN SHRESTHA
Forty-Third Respondent:
PETER TAIT
Forty-Fourth Respondent:
BRANIMIR UREMOVIC
Forty-Fifth Respondent:
JAMES VIKINGUR
Forty-Sixth Respondent:
JORDAN WEEKS
Forty-Eighth Respondent:
GARY WILLIAMS
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