Australian Building and Construction Commissioner v Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia
[2022] FedCFamC2G 18
•1 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Australian Building and Construction Commissioner v Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union Of Australia [2022] FedCFamC2G 18
File number(s): BRG 380 of 2021 Judgment of: JUDGE VASTA Date of judgment: 1 February 2022 Catchwords: INDUSTRIAL LAW – Freedom of Association – interference to workers because they were not Union members – misrepresentations regarding Union membership – contravention of ss. 346 and 349 of FW Act – pecuniary penalties - mitigation – corrective action taken Legislation: Fair Work Act 2009 (Cth): s 342, s 346, s 349, s 546, s 550, s 793 Cases cited: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
Mason & Harrington Corporation Pty Ltd t/as Pangea Restaurant & Bar [2007] FMCA 7
Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49
Division: Division 2 Family Law Number of paragraphs: 56 Date of last submission/s: 15 December 2021 Date of hearing: IN CHAMBERS ON THE PAPERS Place: Brisbane Solicitor for the Applicant: K & L Gates Solicitor for the Respondents: Hall Payne Lawyers ORDERS
BRG 380 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
First Respondent
MITCHELL BROWN
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
1 FEBRUARY 2022
THE COURT DECLARES THAT:
1.The Second Respondent, Mitchell Brown (Brown), contravened s 346 of the Fair Work Act 2009 (Cth) (the FW Act) on 27 August 2020, at the project known as the Cairns Convention Centre Redevelopment, by taking adverse action against two workers by prejudicing their employment by interfering with their work practices and preventing them from performing the tasks required of them in their employment because they were not members of the first Respondent, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”).
2.Brown contravened s 349 of the FW Act on 2 September 2020, by making a false or misleading representation about another person's obligation to engage in industrial activity by saying to Brett Sciban words to the effect that “This is a union site. Everyone at the site needs to be in the union. Look, I just want members. Join the club. Make the job run smoothly”.
3.The CEPU was directly or indirectly, knowingly concerned in, or party to Brown's contraventions of s 346 and s 349 of the FW Act and, as a result, by s 550(1) and s 793 of the FW Act, the CEPU contravened s 346 and s 349 of the FW Act.
THE COURT ORDERS THAT:
4.Pursuant to s 546(1) of the FW Act, the First Respondent is to pay the following pecuniary penalties for contraventions of the FW Act:
(a)for section 346 contravention, $22,000.00
(b)for section 349 contravention, $20,000.00
5.Pursuant to s 546(1) of the FW Act, the Second Respondents is to pay the following pecuniary penalties for contraventions of the FW Act:
(a)for s 346 contravention, $5,000.00
(b)for s 349 contravention, $5,000.00
6.The penalties imposed for each contravention of the FW Act are to be paid to the Commonwealth of Australia within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
Around 2020, Lendlease became the principal contractor for a project that was redeveloping the Cairns Convention Centre. Sciban Electronic Security Pty Ltd (“SES”) was a subcontractor installing electronic security systems at the project. On or about 27 August 2020, SES sent two of their employees, Zac Cameron and Jason Bufi to the project to complete a task that was expected to take approximately one hour. The two employees, and their principal, Brett Sciban, were not members of the Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”). The CEPU are the First Respondent in this matter.
In attempting to complete their task, the two employees were interrupted constantly by the Second Respondent, Mitchell Brown, who set spiteful and unnecessary conditions upon the two employees. The Second Respondent was employed by Lendlease but was also the delegate for the CEPU for the project. In that respect, he was an “officer” and an “official” of the CEPU. The task ended up taking two days to complete.
On 2 September 2020, Mr Sciban spoke to the Second Respondent. The Second Respondent told him that he needed to be in the union to work on the project.
The actions of the Second Respondent breached the Fair Work Act 2009 (Cth) (“the FW Act”). Those actions are taken to also be the actions of the First Respondent. Both the First and Second Respondent have admitted contravening the FW Act and the task for the Court is to assess pecuniary penalties for those contraventions.
The Course of the Litigation
The Applicant, Australian Building and Construction Commissioner, filed the present application on 27 August 2021. The matter was to come before me in October 2021 as a first court date. However, before that date, the parties asked me to make orders in Chambers on 5 October 2021.
I ordered, by consent, that the parties were to file their pleadings within the next three days. I ordered that the Respondents were to file any affidavits by 28 October 2021. I ordered that the Applicant was to file a written outline of submissions by 19 November 2021. I ordered that the Respondents were to file their written outline of submissions by 3 December 2021. I ordered that the Applicant was to file any written submissions in reply by 17 December 2021.
The Applicant did not file any affidavit material.
I ordered that the matter would be determined on the papers unless either party made an election for an oral hearing by 20 January 2022. Neither party have made such election nor did I feel that the matter needed an oral hearing, so I have considered this matter on the papers.
This means that the first time that the matter will be mentioned in open court will be when I deliver my orders and reasons.
The First Contravention
On 27 August 2020, Mr Cameron and Mr Bufi commenced a drilling task; that is they began drilling a hole into ceiling space. This task should have taken them approximately one hour to complete. The two employees opened the manhole in the ceiling set up the ladder and commenced drilling using hammer drill with a vacuum attachment.
Five minutes into their task, the Second Respondent tapped Mr Cameron on the leg and told him to stop drilling. The Second Respondent said to Mr Cameron that “you have no task lighting in this room; you need task lighting”.
The employees then borrowed a light from electricians that were working on the project and said that up in the area in which they were working. They then recommenced their task.
Approximately 15 minutes later, the Second Respondent came back into the area and told Mr Cameron to cease working saying “no, this isn’t good enough. Their vacuum attachment isn’t up to standard here… The site wants people to use an attachment that fixes to the drill”. The Second Respondent also told the employees that one person needed to hold the vacuum attachment while the other was drilling.
Because of this, the principal, Mr Sciban, purchased two brand-new vacuums and provided these to the employees. The employees recommenced the drilling task with one of them holding the new vacuum attachment.
Shortly after recommencing the task, the Second Respondent entered the work area and told the employees to stop working, telling them that “this is a confined space”. The Second Respondent said that the working area needed to be assessed. The foreman of the project was summonsed and he, together with the Second Respondent, assessed the working area. It was determined by the foreman that the area was not a confined space. The employees recommenced their task.
Again, shortly after recommencing the task, the Second Respondent told the employees they had to stop working because “there is no ventilation in the ceiling space”. The Second Respondent told the employees that they had to set up an extraction fan.
The employees did this and then recommenced the drilling task.
Once they had recommenced the drilling task, the Second Respondent said to the employees that “you need to have a third person standing there is a spotter so no one can come into this room”. The employees then arranged for a third person to act as a spotter and recommenced the drilling task.
Approximately 20 minutes later, the Second Respondent returned to the working area and had a conversation with Mr Cameron. The conversation went along these lines:
SR: I don’t think your ladder is suitable to be on-site
ZC: Well it’s damn near brand-new
SR: I don’t think it’s new it’s been modified
ZC: No, this is how it is come. I’d rather it had wheels, it is easier to bloody move around
SR: You have to provide proof of purchase for the ladder. If you can’t do that you have to remove the ladder off-site
So that this ladder issue could be resolved, Mr Cameron left the project to purchase new ladders so that they could continue to work. Subsequently, the original ladder was assessed after the new ladders are being purchased. The original ladder was appropriate and was able to be used on the site.
The task was eventually completed over a two-day period. For the next three or four days that the employees were working on the project, the Second Respondent regularly interrupted their work. At these times the Second Respondent made statements such as “What are you doing? Why aren’t you part of the union?” and “By the end of this site you will be joining the union”.
As is obvious, the actions of the Second Respondent were interfering with work practices of the employees and preventing them from performing the tasks required of them in their employment. It is also clear that the Second Respondent targeted the two employees because they were not members of the union.
Section 346 of the FW Act relevantly states:-
346 Protection
A person must not take adverse action against another person because the other person:
(a)is or is not, or was or was not, an officer or member of an industrial association;
According to s 342 (1) Item 7(b) of the FW Act, adverse action is taken by an officer of an industrial association against a person if the officer of the industrial association takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment.
The Second Respondent has clearly contravened this section. Because he is an officer of the CEPU, his actions are deemed to be the actions of the CEPU pursuant to ss 363 and 793 of the FW Act. This means that the CEPU is a person who was “involved in” the contraventions of the Second Respondent pursuant to s 550 of the FW act.
The Second Contravention
On 2 September 2020, Mr Sciban had a meeting with the Second Respondent. During that meeting the following conversation took place:-
SR: We appear to have gotten off on the wrong foot at the project.
BS: You sure did get off on the wrong foot.
SR: This is a union site everyone at the site needs to be in the union. Look, I just want members. Join the club. Make the job run smoothly. This is a government site. It is expected that all workers on the site are union.
BS: It is for my employees to decide if they wish to join the union. But, if it would make their jobs easier, I will join the union.
The “facts” relied upon by the Second Respondent in this conversation are clearly wrong and do not represent the state of the Law. Again, it is obvious that the Second Respondent is conveying an untruth to Mr Sciban (and through him to Mr Cameron and Mr Bufi) in an attempt to pressure them to join the CEPU. On 8 September 2020, the employees eventually joined the CEPU but immediately reported that they felt pressured to do so.
A person engages in industrial activity if the person becomes a member of an industrial association (s 347(a) of the FW Act).
Section 349 of the FW Act relevantly states:-
349 Misrepresentations
(1)A person must not knowingly or recklessly make a false or misleading representation about … the following:
(a) another person’s obligation to engage in industrial activity
(2)Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
The representations made by the Second Respondent to Mr Sciban in the conversation of 2 September 2020, were clearly false and the Second Respondent obviously knew that they were false. It is clear that Mr Sciban (and through him, his two employees) are not persons who “would not be expected to rely” on those false statements. It is clear that the Second Respondent intended that all three persons would rely upon his misrepresentations and join the CEPU.
This means that the Second Respondent has contravened s 349 of the FW Act. For the same reasons that applied to the first contravention, the actions of the Second Respondent are deemed to be the actions of the CEPU and they are, therefore, involved in the contravention.
Declarations
The First and Second Respondents admitted the allegation that they had both contravened ss 346 and 349 of the FW Act in their pleadings. Having regard to the nature of the contraventions, it is appropriate that the Court makes appropriate declarations.
The text of s 346 of the FW Act is in terms that the section is contravened if someone takes adverse action against “another person” for a prohibited reason. On a very literal reading of the section, it could be argued that the actions of the Second Respondent constituted a breach of s 346 in relation to Mr Cameron and another breach of the same section in relation to Mr Bufi.
To my mind, the phrase “another person” can encompass more than one individual. The actions of the Second Respondent were directed to both employees at the same time. It seems to me that, in those circumstances, the Second Respondent has contravened the section by the one set of actions, though it has prejudiced two employees.
It would be proper then to make a declaration that there has been a contravening of this section in that the Second Respondent has prejudiced the employment of Mr Cameron and Mr Bufi by interfering in their work practices and preventing them from performing the tasks required of them in their employment rather than making two declarations in respect of each employee.
Pecuniary Penalties
The law in relation to assessment of pecuniary penalties has really been laid down quite comprehensively. The High Court, in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, said, at paragraph 55 of that judgment,
No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance:
“Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. ... The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.”
In Mason & Harrington Corporation Pty Ltd t/as Pangea Restaurant & Bar [2007] FMCA 7 (“the Pangea Case”), the Court went through, in effect, a number of factors that Courts should be mindful of when imposing pecuniary penalties. One must be careful though, in looking at the Pangaea case, that one doesn’t simply look at those matters as some form of checklist to see whether or not the facts of the case, with the particular factors, either aggravate or mitigate the penalty.
As such, the list compiled in Pangaea is extremely useful, but it should not be a formula used by the Court to slavishly come up with some sort of, almost mathematical, guide for the imposition of penalties.
Factors in the present case
The actions of the Second Respondent resulted in the interference and hindering of the two employees to actually complete their tasks. This resulted in a waste of resources, the unnecessary purchase of another ladder and the need to work for nearly 2 days to complete a job that should have taken approximately one hour. Industry just cannot afford to tolerate such wastage in today’s market.
Mr Cameron and Mr Bufi also expended money on union memberships which they did not want but felt pressured to complete. It is instructive to note that once the union memberships were obtained, the spurious interference by the Second Respondent, with the work done of these two employees, ceased.
The misrepresentations made by the Second Respondent had an effect on Mr Sciban who is a contractor simply trying to make a living by utilising his skills and knowledge of his particular trade. The fact that he felt a responsibility to protect his workers illustrates the nefarious nature of what it was that the Second Respondent was doing.
These actions were deliberate conduct designed solely to overwhelm any resistance, by any of these three men, to joining the union. The Second Respondent did so as a representative of a very large and powerful union that has had a very proud history of standing up for the rights of workers. This fact added to the overwhelming nature of the actions of the Second Respondent.
But more importantly, these actions strike at the very heart of a person’s right of freedom of association. Any conduct that seeks to destroy, or even put limitations upon, the inalienable right of freedom of association is a repudiation of the principles that have made our nation the bastion of freedom that it is. Such behaviour is totally contrary to the fundamental aims of the FW Act.
For these reasons, the words of the High Court, which have been quoted in paragraph 36 above, are apposite to this matter.
Mitigation
The Second Respondent has no previous contraventions of the FW Act. Notwithstanding that the Respondents have described his actions as “an over enthusiastic approach to his role as delegate for the union”, it is far more serious than that. The CEPU have been involved in prior contraventions of the FW Act but nothing that involves a breach of any of the “freedom of association” provisions of the FW Act.
The cooperation exhibited by the Respondents has already been mentioned. It is true and meaningful cooperation and has led to an expeditious resolution to this matter and no unnecessary expenditure of public monies.
The contrition exhibited and the corrective action taken by the First Respondent is to be lauded. I have been incredibly impressed by what the CEPU has done in this regard.
The First Respondent, of its own motion, engaged Mr John Thompson to address its members as a form of training. Mr Thompson is a very eminent person in the field of industrial relations. He has a very full history of work within the union movement and is a former Commissioner of the Queensland Industrial Relations Commission and the former Australian Industrial Relations Commission. His words carry great force.
I watched a 16 minute video where Mr Thompson spoke of the responsibilities of union delegates to respect the law. Mr Thompson spoke with a justifiable pride in all that the CEPU had achieved and was, in effect, saying that there is no need to take adverse action against anyone to force them to join the union; they should see the proud achievements of the union and want to join such an establishment. It was a very strong and powerful message coming from such a respected individual.
To my mind, what Mr Thompson said reflects the view of the First Respondent. It allows the Court to see that the conduct of the Second Respondent was an aberration, albeit a serious one.
Penalty
The parties have agreed upon the range of appropriate penalties. However, it is still for the Court to decide what the appropriate penalty should be rather than the parties themselves decide what the penalty should be and simply have the Court rubberstamp such a resolution. None of what I have said is contrary to the principles spoken of by the High Court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (supra), nor to what was said by the Full Court of the Federal Court in Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49.
In this case, the range of penalties agreed to are appropriate and the penalties that I will impose are actually within those ranges. I have independently assessed the penalties and not just slavishly followed what the parties have agreed to.
ORDERS
I will make the appropriate declarations.
For the first contravention, I impose a pecuniary penalty of $22,000 against the First Respondent and $5000 against the Second Respondent.
For the second contravention, I impose a pecuniary penalty of $20,000 against the First Respondent and $5000 against the Second Respondent.
This makes a total pecuniary penalty against the First Respondent of $42,000 and a total pecuniary penalty against the Second Respondent of $10,000. I will order that such sums be paid within 28 days.
I certify that the preceding fifty-six(56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 1 February 2022
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