Australian Building and Construction Commissioner v Auimatagi & Anor (No.2) - [2018] FCCA 524

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v AUIMATAGI & ANOR (No.2)

[2018] FCCA 524

Catchwords:
INDUSTRIAL LAW – Pecuniary penalties – appropriate penalties – unlawful conduct – contraventions of Fair Work Act 2009 (Cth), ss.340, 343 – relevance of relationship between contraventions – whether declarations should be made in respect of the respondents – whether pecuniary penalties should be imposed on the first respondent – whether pecuniary penalties should be imposed on the second respondent – quantum of pecuniary penalties – whether contraventions warranted imposition of maximum penalty in relation to the second respondent – relevance of contravener’s prior breaches of statutory provisions to imposition of penalty – need for specific and general deterrence – declarations made – penalties ordered.

Legislation:
Fair Work Act 2009 (Cth), ss. 340, 343, 363, 546, 556
Federal Circuit Court Rules 2001 (Cth), pt.27
Fair Work (Registered Organisations) Act 2009 (Cth)
Work Health and Safety Act 2011 (Cth)

Cases Cited:
Australian Building And Construction Commissioner v Auimatagi & Anor [2017] FCCA 1722
Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53
Trade Practices Commission v CSR Limited (1991) ATPR 41-076
Commonwealth Director v Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Kelly v Fitzpatrick (2007) 166 IR 14
Director of the Fair Work Building and Industry Inspectorate v Cartledge [2014] FCA 1047
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 160
Draffin v Construction, Forestry, Mining and Energy Union (2009) 189 IR 145
Australian Building and Construction Commissioner v Pauls [2017] FCA 843
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Anor [2018] HCA 3
Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 407
Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213
Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1173
Australian Building and Construction Commissioner v Dig It Landscapes & Ors [2017] FCCA 2128
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) (The Red & Blue Case) [2015] FCA
1462
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 (“Hospital Case”)
Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082

Applicant:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent:

POMARE AUIMATAGI

Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

File Number:

SYG 1823 of 2015

Judgment of:

Judge Emmett

Hearing date:

28 February 2018

Date of Last Submission:

2 March 2018

Delivered at:

Sydney

Delivered on:

8 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr Bryce Cross

Solicitors for the Applicant:

Bartier Perry

Counsel for the Respondents:

Mr James Pearce

Solicitors for the Respondents:

Taylor and Scott Lawyers

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1823 of 2015

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

And

POMARE AUIMATAGI

First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent

REASONS FOR JUDGMENT

On 1 September 2017, this matter was set down for hearing as to any penalty or declaration in relation to Reasons for Judgement published by me on 28 July 2017 (Australian Building And Construction Commissioner v Pomare Auimatagi and Anor [2017] FCCA 1722) (“ABCC v CFMEU”).
In ABCC v CFMEU, I made the following findings:
i.The first respondent was an officer of the second respondent;
ii.The actions of the first respondent are deemed to be the actions of the second respondent;
iii.The first respondent engaged in adverse action in contravention of s.340 of the Fair Work Act 2009 (Cth) (“FW Act”);
iv.The first respondent contravened s.343 of the FW Act by organising or threatening to organise action against John Holland Pty Ltd (“John Holland”) with the intent to coerce John Holland not to exercise its workplace right to enforce its Two Longs Safety Policy;
v.By engaging in conduct in contravention of ss.340 and 343 of the FW Act as an officer for the second respondent, the first respondent’s actions and state of mind are the actions and state of mind of the second respondent under s.363(1)(b) of the FW Act read with s.363(3) of the FW Act;
vi.The second respondent contravened s.340 of the FW Act;
vii.The second respondent contravened s.343 of the FW Act.
On 28 July 2017 the parties were referred to mediation pursuant to Part 27 of the Federal Circuit Court Rules 2001 (Cth) on the issue of penalties and declarations arising from the reasons for judgment in ABCC v CFMEU.
The mediation resulted in agreed declarations in the following terms:
“(a) It is declared that on 16 January 2014 at a building site at Callaghan, Newcastle, Mr Auimatagi (an officer of the CFMEU) contravened s 340 of the FW Act, by organising, encouraging and inciting action, including industrial action – namely the workers would wear short pants and short sleeve shirts to work on and from 17 January 2014 and walk off the job if John Holland sought to enforce its two longs safety policy – against John Holland because John Holland had exercised, and proposed to exercise, its workplace right under the Work Health and Safety Act 2011 (Cth) to enforce its two longs safety policy.
(b) It is declared that on 16 January 2014 at a building site at Callaghan, Newcastle, Mr Auimatagi also contravened s 343 of the FW Act, by organising and threatening the said action with the intent to coerce John Holland to not exercise its workplace right to enforce its two longs safety policy on and from 17 January 2014.
(c) It is declared that by virtue of s 363 of the FW Act, the CFMEU also contravened ss 340 and 343 of the FW Act.”
The applicant submitted that the agreed declarations relating to the contravening conduct are appropriate as being in the public interest to record the court’s condemnation of the respondents’ unlawful conduct. The applicant submitted that the agreed declarations will assist in achieving the court’s objective of deterrence, being one of the factors to be taken into account in imposing any penalty.
The applicant’s submissions on penalty were summarised as follows in their written submission:
“2.1 The actions of the First Respondent (as set out at [15] to [19] below) were deliberate and intentional; designed to apply significant pressure on John Holland to not exercise its workplace right. The First Respondent’s actions were “Nothing short of unconscionable” (see ABCC v CFMEU at [208]);
2.2 As elaborated on below at paragraphs [27] to [36], and [40] to [48], the Second Respondent is a “recidivist” (see ABCC v CFMEU [2017] FCAFC 113 at [159]; ABCC v Parker [2017] FCA 1082 at [31]), having consistently demonstrated an ongoing disregard for the law and unwillingness to comply with the law – indeed, it has shown that it has not been deterred even by significant penalties; and
2.3 The penalties to be imposed should, for the Second Respondent, be at the high end to reflect the objective seriousness of the contraventions and the coercive nature of the conduct. The penalties should also meaningfully address the matter of deterrence and, ultimately, put a price on a contravention that is sufficiently high to deter repetition by the contraveners and by others.”
(Footnotes omitted).
The maximum penalty for a contravention of ss.340 and 343 of the FW Act is $51,000 in respect of the second respondent and $10,200 in respect of the first respondent.
It is common ground that the contraventions found in ss.340 and 343 of the FW Act relied on the same conduct. Accordingly, pursuant to s.556 of the FW Act, only one penalty is to be imposed against each respondent. It is also common ground that the court should impose any penalty by reference to the most serious offence, that being the respondents’ contraventions of s.343 of the FW Act.
The principles are well established to guide the court in its consideration of an appropriate penalty. It is well accepted that the primary purpose of imposing a civil penalty is to deter persons and bodies from repeating conduct of the kind and nature of the contraventions (see Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476 at 490 [54]-[55]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 at 90).
In other words, the object of a civil penalty is for the court to attempt to put a price on the contraventions found that is sufficiently high to deter repetition by both the contravener and others who may be tempted to contravene the Act (see Trade Practices Commission v CSR Limited (1991) ATPR 41-076 at 52, 152; Commonwealth Director v Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476 at 490 [54]-[55]).
The process of fixing the quantum of penalty is well accepted as a process of “instinctive synthesis” (see Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560).
In Kelly v Fitzpatrick (2007) 166 IR 14 at [14], Tracey J provided a useful summary of some of the matters to be taken into account when fixing a penalty:
a)The nature and extent of the conduct which led to the breaches.
b)The circumstances in which that conduct took place.
c)The nature and extent of any loss or damage sustained as a result of the breaches.
d)Whether there had been similar previous conduct by the respondent.
e)Whether the breaches were properly distinct or arose out of the one course of conduct.
f)The size of the business enterprise involved.
g)Whether or not the breaches were deliberate.
h)Whether the party committing the breach had exhibited contrition.
i)Whether the party committing the breach had taken corrective action.
j)Whether the party committing the breach had cooperated with the enforcement authorities.
k)The need for specific and general deterrence.
The applicant accepted that rehabilitation does not appear to be treated as a significant factor by the courts in the industrial law context (see Director of the Fair Work Building and Industry Inspectorate v Cartledge [2014] FCA 1047 at [54], citing White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 160 at [32] who in turn cited Trade Practices Commissioner v CSR Ltd (1991) ATPR 41-076 at 51, 152).
The applicant submitted that, in any event, rehabilitation may be of little relevance as the first respondent is no longer an official with the second respondent and the lack of ongoing non-compliance by the second respondent indicates it may have no effect.
Further, proportionality usually requires that the punishment be proportionate to the contravening conduct. Consistency requires that, all other things being equal, similar contraventions should incur similar penalties. Regard should be had to the circumstances in which the contraventions occurred and the need to sustain public confidence in the statutory regime which imposes the obligations (see Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [54], [89]-[91].
It is common ground that the second respondent has been found to have contravened some 136 pieces of industrial law legislation between 2000 and 2018. That is more than 7 contraventions a year on average. I accept that these contraventions are not all in respect of s.340 and s.343 of the FW Act. However they demonstrate a complete disregard for obeying the law in the area of industrial relations. As Dowsett and Rares JJ stated in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 at [100]-[102]:
“100. In a liberal democracy, it is assumed that citizens, corporations and other organisations will comply with the law. Such compliance is not a matter of choice. The community does not accept that a citizen, corporation or other organisation may choose to break the law and simply pay the penalty. The courts certainly do not accept that proposition. Such acceptance would pose a serious threat to the rule of law upon which our society is based. It would undermine the authority of Parliament and could lead to the public perception that the judiciary is involved in a process which is pointless, if not ridiculous.
101. The Parliament’s purpose in legislating to provide that particular proscribed conduct will attract a civil penalty was to deter persons, including but not limited to trade unions or corporations, from engaging or continuing to engage in such conduct. A civil penalty would lose its utility if the person on whom it was imposed simply treated it as a cost of continuing to carry on with the very conduct that had just been penalised.
102. The CFMEU can be seen to have chosen to pay penalties in preference to obeying the law. It is not entitled to any leniency in the circumstances of the conduct complained of. The legislative purpose in the Act, of creating separate contraventions and imposing pecuniary penalties on organisations, such as the CFMEU, for conduct engaged in on the one occasion by their agents, will not be served by equating multiple contraventions by a recidivist as a wholly single course of conduct. Each separate contravention by the CFMEU’s officials and organisers on 22 October 2013 had a distinct effect and impact in making the blockade of a very large site effective. The Act contemplates that the Court can fix a high price, by way of aggregated penalties, on an organisation in circumstances such as the present to deter future repetition.”
In the matter before me, I accept that the motivation for the respondent’s conduct, even if it be asserted to be well-intentioned or in the interests of members, does not diminish the seriousness of the contraventions, particularly in light of the respondents’ knowledge of the appropriate avenues available. As the Full Court of the Federal Court of Australia stated in Draffin v Construction, Forestry, Mining and Energy Union (2009) 189 IR 145 at [85]:
“The Union is also free to pursue and implement such policies by lawful means. What is not permissible is the pursuit of policy objectives by means which are unlawful. If officials or members of a Union act unlawfully it cannot be asserted in mitigation that the persons concerned were seeking to achieve ends which the Union wished to pursue. The end does not justify the means.”
The actions of the first respondent were deliberate and intentional and designed to apply significant pressure on John Holland to change its Two Longs Safety Policy at a time and in a manner determined by the respondents, rather than by way of lawful avenues available.
The first respondent was found to have used words of “encouragement and incitement” to have workers stop work if John Holland exercised its workplace right to enforce its Two Longs Safety Policy. The first respondent’s actions were found to have been engaged in with the intent to coerce John Holland not to exercise its workplace right. The first respondent’s actions were found to be “nothing short of unconscionable” (see ABCC v CFMEU at [208]).
The actions of the first respondent were found to have resulted in “real and substantial” prejudice to John Holland, with the vast majority of workers not working for three days (see ABCC v CFMEU at [183]).
There was no evidence provided to the Court from either respondent evidencing any acknowledgment of or contrition for their unlawful conduct. Indeed, both respondents denied throughout the trial that either respondent engaged in unlawful conduct. At the penalty hearing, which was not attended by the first respondent, I offered to give the first respondent an opportunity to come to court and give evidence as to his attitude in relation to his conduct following the findings made against him. The first respondent chose not to do so.
In evidence, the first respondent acknowledged that he was aware that there was a dispute settlement mechanism in all the enterprise agreements covering the workers on the John Holland site. He agreed that in the event of a dispute, one would file for such a dispute and then steps would be taken, such as arbitration, in relation to a breach of an enterprise bargaining agreement.
The first respondent also acknowledged in cross-examination that he knew industrial action was prohibited.
I also have regard to the loss or damage sustained by John Holland as a result of the breaches. Whilst unspecified, the scale of the project and the disruption to work on the site was significant. It was found that if the vast majority of an 82-man workforce leave a site and do not work for one day, let alone three days, the prejudice suffered by John Holland is more than merely possible or hypothetical. The prejudice to John Holland was real and substantial (see ABCC v CFMEU at [183]).
Counsel for the respondents referred to Australian Building and Construction Commissioner v Pauls [2017] FCA 843 where Rangiah J did not accept that subcontractors on a particular site had suffered financial loss. However, in the case before this court, loss was found to be in relation to John Holland, not its sub-contractors, and was found to be real and substantial for the reasons referred to above, despite no direct evidence of particular loss.
I was informed by counsel for the respondents that the first respondent continues to work on a construction site in Newcastle, although not employed by the second respondent.
In light of the first respondent’s deliberate and intentional contravention of ss.340 and 343 of the FW Act, namely the taking of adverse action against John Holland by the first respondent to prevent John Holland exercising a workplace right to enforce its Two Longs Safety Policy; and, engaging in action against John Holland with the intent to coerce John Holland not to exercise its workplace right, the first respondent has engaged in conduct that on any view is objectively serious.
Whilst I accept that this is the first respondent’s first offence, I take little comfort in the fact that the first respondent no longer works for the second respondent in circumstances where he continues to work in construction and has failed to demonstrate any contrition whatsoever. There is nothing to prevent his return to the employment of the second respondent. For that reason, I am of the view that a penalty in respect of the first respondent must have a significant specific deterrent factor as well as a significant general deterrent factor in order to deter the first respondent and others from engaging in such conduct.
The maximum penalty available to the Court is $10,200. I accept that there should be some lesser amount than the maximum where this is the first respondent’s first offence. However in the absence of any other reassuring conduct or even an attempt to reassure the Court in respect of his future conduct, in my view an appropriate penalty is $7,500.
Section 546 of the FW Act has been held to confer power on the court to make a personal payment order (see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Anor [2018] HCA 3 at [115-6], [119-120], [130-131]). Whilst I may have been minded to make such an order, it was not sought by any of the parties and for that reason I shall take the issue no further.

The conduct of the first respondent is, by force of statute, deemed to be that of the second respondent.
However, the second respondent does not have the luxury of the first respondent of this being a first offence. On any view, the second respondent has an appalling record of non-compliance and repeated contraventions of civil penalty provisions of industrial relations legislation. In relation to contraventions of ss.340 and 343 of the FW Act alone, tables provided by the applicant demonstrate that the second respondent has ten prior contraventions of s.340 of the FW Act, four prior breaches of s.343 and about forty contraventions where the second respondent had encouraged workers to stop work or leave a site to unlawfully further its industrial objectives. These contraventions form part of the 136 industrial law contraventions referred to above.
The second respondent’s woeful regard for lawful conduct does not mean that a disproportionate penalty should be imposed in respect of the contraventions that are the subject of this penalty hearing. However, the prior contraventions are relevant in assessing the level of penalty necessary to put a price on such contravention that is sufficiently high to deter repetition of the second respondent or others who might be tempted to contravene. I accept the applicant’s submission that “self-evidently, the penalties imposed in the past have not caused the second respondent or its officials to comply with industrial legislation, including the FW Act.”
The attitude of the second respondent has been found to be “deplorable” in relation to its legal obligations and the statutory processes that govern the relations between unions and employers in Australia (see Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 407 at [106]). As Tracey J stated in that case at [106]:
“this ongoing willingness to engage in contravening conduct must weigh heavily when the need for both specific and general deterrence is brought to account.”
Tracey J continued at [107]:
“The CFMEU is not to be punished again for its earlier misconduct. It is, however, to be punished more severely than it would have been had it had no adverse record or been responsible for only a few isolated incidents over a period of many years. Its continued willingness to engage in contravening conduct supports the view that earlier penalties, some of them severe, have not had a deterrent effect: cf Veen v R (No 2) (1988) 164 CLR 465 at 477-8.”
Further, in Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 at [63], Tracey J stated as follows:
“The longer such recidivism continues the more likely it is that this consideration will carry greater weight than the principle that the maximum available penalty must be reserved for the worst possible offending.”
In Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1173, Jessup J observed at [29]:
“…The pattern of contravention which emerges from material such as this has been the subject of comment by the court on a number of occasions. The schedule paints, one would have to say, a depressing picture. But it is more than that. I am bound to say that the conduct referred to in the schedule bespeaks an organisational culture in which contraventions of the law have become normalised.”
In Australian Building and Construction Commissioner v Dig It Landscapes & Ors [2017] FCCA 2128, Vasta J stated as follows at [55]-[56]:
“It beggars belief that the CFMEU believe that they can act in a manner where they are the ones who dictate who can or cannot work on a construction site.
The Parliament is the only entity that sets the law in this country and the Parliament is directly responsible to the people of this country. It seems that the CFMEU feel that they can usurp Parliament and that they can set the law in this country. There is no place for such an attitude in Australian society.”
In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) (The Red & Blue Case) [2015] FCA 1462, Jessup J said at [7]-[8]:
“This record, and the judicial observations to which I have referred, suggests that the penalties heretofore imposed upon the Union have been inadequate to provide the specific deterrence which is so conspicuously required in this area of the law. Counsel for the respondents submitted that, however bad may be the Union’s prior record of contravention, it would be wrong for the court to impose a penalty which was disproportionate to the gravity of the particular contravention under consideration. I accept that a principle in these terms has found expression in the past, but never, so far as I am aware, in a situation in which the previous record is as egregious as that of the Union in the circumstances presently facing the court.
In giving weight to the Union’s record of contravention, as I shall do, the court is not using the present occasion to supplement the penalties imposed for different conduct on previous occasions. Rather, the court is giving appropriate recognition to what is, on any view, an important purpose of the regime of penalties for which the legislation provides: deterrence. Of all purposes, that is the most strongly linked to the public interest in compliance with the law. If contravention of a law is visited with penal outcomes which are demonstrably inadequate to achieve the purpose of the law, it might as well not be a law at all. It is in this sense, in my view, that the principle of proportionality is amply reflected in the imposition of a penalty which takes due account of the importance of specific deterrence.”
As quoted above, the CFMEU is not entitled to any leniency (see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (“Hospital Case”) [2017] FCAFC 113 at [102]).
In my view the maximum penalty of $51,000 should be imposed on the second respondent. The second respondent’s intent through the conduct of the first respondent to coerce John Holland into not exercising its workplace right to enforce its Two Longs Safety Policy is reprehensible and, in my view, plainly objectively very serious. This is particularly so where the respondents were aware of lawful dispute resolution paths available which they deliberately chose to ignore.
In the circumstances, coupled with the necessity for deterrence, in my view, the second respondent should be ordered to pay a penalty of $51,000.
The third respondent seeks an order that the applicant pay its costs thrown away by the applicant’s discontinuance against the third respondent. However, at the hearing on 9 June 2017, the second respondent accepted liability for the conduct of the first respondent in return for the applicant withdrawing the claim against the third respondent. The amended statement of claim filed on 6 October 2015 pleaded that the first respondent was at all material times an official and officer of each of the second and third respondents. In their defences, each of the second respondent and the third respondent admitted that the first respondent was their employee. Further, the first respondent remained unclear as to which of the second and third respondents he was in fact engaged by.
In the circumstances, the third respondent’s application for costs is ill-founded and refused.
I note that the second respondent has referred to an “alternative submission” in relation to CFMEU recidivism and reporting unit exceptionalism. The respondents concede that on that issue the court is bound by the decision in Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082. The issue relates to a submission made in Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082 that considering the CFMEU as a whole in penalty proceedings, rather than by reference to individual reporting units was an inappropriate approach to fixing penalties for civil contraventions of the FW Act in light of the terms of the Fair Work (Registered Organisations) Act 2009 (Cth). In light of the second respondent’s concession that this court cannot consider the issue further, I do no more than note the argument.
I am satisfied that the declarations agreed to by the parties are appropriate to be made as being in the public interest to record the court’s strident condemnation of the respondents’ unlawful conduct. It is to be hoped that the declarations will assist in the specific and general deterrence of the respondents and others who may be tempted to contravene the Act.
In conclusion, the following declarations and orders should be made:
1)On 16 January 2014 at a building site at Callaghan Newcastle controlled by John Holland Pty Ltd the first respondent (being an officer of the second respondent) contravened s.340 of the Fair Work Act 2009 (Cth) by organising, encouraging and inciting action, including industrial action, against John Holland Pty Ltd because John Holland Pty Ltd had exercised and proposed to exercise its workplace right under the Work Health and Safety Act 2011 (Cth) to enforce its Two Longs Safety Policy; that action being that the workers would wear short pants and short sleeve shirts to work on and from 17 January 2014 and walk off the job if John Holland Pty Ltd sought to enforce its Two Longs Safety Policy.
2)On 16 January 2014 at a building site at Callaghan, Newcastle, controlled by John Holland Pty Ltd, the first respondent (being an officer of the second respondent) also contravened s.343 of the Fair Work Act 2009 (Cth) by organising and threatening the action set out at Declaration 1 (above) with the intent to coerce John Holland Pty Ltd not to exercise its workplace right to enforce its Two Longs Safety Policy on and from 17 January 2014.
3)By virtue of s.363 of the Fair Work Act 2009 (Cth), the second respondent also contravened ss.340 and 343 of the Fair Work Act 2009 (Cth).
4)The first respondent pay a penalty fixed in the sum of $7,500 to be paid into Consolidated Revenue.
5)The second respondent pay a penalty fixed in the sum of $51,000 to be paid into Consolidated Revenue.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 8 March 2018