Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union
[2022] FedCFamC2G 40
•3 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2022] FedCFamC2G 40
File number(s): BRG 161 of 2021 Judgment of: JUDGE EGAN Date of judgment: 3 February 2022 Catchwords: INDUSTRIAL LAW - FAIR WORK – admission of liability by Respondents – relevant principles to be applied when imposing pecuniary penalties – past contraventions a relevant consideration – orders made accordingly. Legislation: Fair Work Act2009 (Cth) ss. 487, 500, 546(1), 550, 793.
Workplace Relations Act 1996 (Cth).Cases cited: ABCC v CFMMEU and Ors (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262.
Pattinson v ABCC (2020) 387 ALR 75.
Veen v The Queen (1987-88) 164 CLR 465.
ABCC v CFMEU (Bendigo Theatre Case) (No 2) [2018] FCA 1211.Division: Division 2 General Federal Law Number of paragraphs: 29 Date of last submission/s: 21 January 2022 Date of hearing: 21 January 2022 Counsel for the Applicant: M. Felman SC with M. McKechnie Solicitor for the Applicant: Ashurst Australia Counsel for the Respondents: CA Massy Solicitor for the Respondents: Hall Payne Lawyers ORDERS
BRG 161 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Respondent
ANDREW BLAKELEY
Second Respondent
MICHAEL RAVBAR
Third Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
3 FEBRUARY 2022
IT IS DECLARED THAT:
1.On 5 November 2020, while seeking to exercise rights in accordance with Pt 3-4 of the Fair Work Act 2009 (Cth) (FWA) at the Southbank New Performing Arts Complex Project located at the corner of Russell Street and Grey Street South Brisbane (Site), the Second Respondent, Mr Andrew Blakeley, contravened section 500 of the Act by acting in an improper manner in that he:
a.entered the Site without giving 24 hours written notice in breach of section 487 of the FWA;
b.entered and remained on the Site in circumstances where he had no lawful basis to do so;
c.failed to comply with the Site's occupational health and safety requirements that prohibited unauthorised access and required visitors to report to the Site Office;
d.attended a meeting which was not authorised to be held on Site;
e.entered and remained on the Site in direct contradiction of the occupier's request to conduct the meeting off-site; and
f.facilitated the entry of 10 to 12 people onto the Site in circumstances where he knew that those people were not authorised to be on the Site.
(Blakeley Contravention)
2.On 5 November 2020 while seeking to exercise rights in accordance with Pt 3-4 of the FWA at the Site, the Third Respondent, Mr Michael Ravbar, contravened section 500 of the Act by acting in an improper manner in that he:
a.entered the Site without giving 24 hours written notice in breach of section 487 of the FWA;
b.entered and remained on the Site in circumstances where he had no lawful basis to do so;
c.failed to comply with the Site's occupational health and safety requirements that prohibited unauthorised access and required visitors to report to the Site Office;
d.attended a meeting which was not authorised to be held on Site; and
e.entered and remained on the Site in direct contradiction of the occupier's request to conduct the meeting off-site.
(Ravbar Contravention)
3.The First Respondent (CFMMEU) is taken to have contravened section 500 of the FWA in that, by operation of sections 550 and 793 of the FWA, it was involved in the Blakeley Contravention.
4.The CFMMEU is taken to have contravened section 500 of the FWA in that, by operation of sections 550 and 793 of the FWA, it was involved in the Ravbar Contravention.
AND IT IS ORDERED THAT:
APursuant to the provisions of s. 546 (1) of the FWA, the CFMMEU pay to the Commonwealth of Australia within 28 days of this Order a pecuniary penalty in the amount of $59,940 in respect of the contravention referred to in Declaration 3 above.
BPursuant to the provisions of s. 546 (1) of the FWA, the CFMMEU pay to the Commonwealth of Australia within 28 days of this Order a pecuniary penalty in the amount of $59,940 in respect of the contravention referred to in Declaration 4 above.
CPursuant to the provisions of s. 546(1) and 3(a) of the FWA, the Second Respondent, Andrew Blakeley, pay to the Commonwealth of Australia within 28 days of this Order a pecuniary penalty in the amount of $7,992.00 in respect of the contravention referred to in declaration 1 above.
DPursuant to the provisions of s. 546(1) and 3(a) of the FWA, the Third Respondent, Michael Ravbar, pay to the Commonwealth of Australia within 28 days of this Order a pecuniary penalty in the amount of $10,656.00 in respect of the contravention referred to in declaration 2 above.
THE COURT NOTES THAT: This Order has been amended pursuant to r. 17.05(2)(f) and (g) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) to insert “within 28 days of this Order” after the word “Australia” in Orders A, B, C and D of this Order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
On 22 April 2021, the applicant filed an Originating Application and a Statement of Claim whereby it was alleged that provisions of the Fair Work Act2009 (Cth) had been contravened by the following:
•Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 1st Respondent
•Andrew Blakeley 2nd Respondent
•Michael Ravbar 3rd Respondent
•Peter Bransdon 4th Respondent
Prior to the first hearing date in this matter, the parties advised Judge’s Chambers that issues of liability had been resolved, and that the 4th Respondent had been removed as a party to the proceeding. The matter was accordingly listed for hearing on 21 January 2022 for the making of submissions as to the appropriate penalties to be imposed against the 1st, 2nd and 3rd Respondents.
On 4 January 2022, a Further Amended Statement of Claim was filed. At the hearing of this matter, the Applicant relied upon a Third Further Amended Application filed on 25 January 2022. The making of the orders sought in the Third Further Amended Application was not opposed by any of the Respondents. The orders sought were as follows:
E.“Orders pursuant to section 546(1) of the FW Act, imposing a pecuniary penalty on each of Mr Blakeley, and Mr Ravbar as a result of their contraventions of the civil remedy provision in declarations 1 and 2 of Annexure A.
F.Orders pursuant to section 546(1) of the FW Act, imposing pecuniary penalties on the CFMMEU as a result of its contraventions of the civil remedy provisions in declarations 3 and 4 of Annexure A.
H. An order pursuant to section 546(3) of the FW Act, requiring that any pecuniary penalties imposed on each of the CFMMEU, Mr Blakeley and Mr Ravbar, be paid to the Commonwealth of Australia within 28 days of the Court’s order.
I. Such further or other orders as the Court thinks fit.”
Paragraphs [1] – [50] inclusive and [65] – [69] inclusive of the Further Amended Statement of Claim were admitted by each of the Respondents in the Amended Defence filed on 4 January 2022.
Paragraphs [1] – [50] inclusive of the Further Amended Statement of Claim were relevantly as follows:
1.“The Applicant is
(a) a statutory appointee of the Commonwealth, appointed by the Minister for Employment by written instrument, to the office of Australian Building and Construction Commissioner under section 21(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act);
(b) by section 66(3) of the BCIIP Act, an Australian Building and Construction Inspector; and
(c) by operation og section 111 of the BCIIP Act and section 539 of the Fair Work Act 2009 (Cth) (FW Act), entitled to commence proceedings for breaches of civil penalty provisions under the FW Act.
2.The First Respondent (CFMMEU) is and was at all material times:
(a) An organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and by section 27 of that Act a body corporate capable of being sued;
(b) an industrial association within the meaning of that term in sections 12 and 363 of the FW Act;
(c) subject to eligibility rules that allowed membership by “building employees” for the purposes of section 5 of the BCIIP Act;
(d) a building association and a building industry participant within the meaning of those terms ion section 5 of the BCIIP Act; and
(e) a body corporate within the meaning of that term in section 793 of the FW Act.
3.The Second Respondent (Mr Blakeley) was at all material times:
(a) employed by the CFMMEU in the position of Organiser;
(b) an officer and official of the CFMMEU within the meaning of those terms in sections 12 and 793 of the FW Act;
(c) an official of the CFMMEU within the meaning of that term in section 116 of the Work Health and Safety Act 2011 (Qld) (WHS Act);
(d) a person who held an entry permit issued pursuant to section 512 of the FW Act, and a permit holder within the meaning of sections 497 and 500 of the FW Act;
(e) a person who held a WHS entry permit issued pursuant to section 134(1) of the WHS Act;
(f) a building industry participant within the meaning of that term in section 5 of ht eBCIIP Act;
(g) relevant to the matters alleged herein, acting in his capacity as an officer and official of the CFMMEU; and
(h) relevant to the matters alleged herein, acting within the scope of his actual or apparent authority for and on behalf of the CFMMEU.
4.The Third Respondent (Mr Ravbar) was at all material times:
(a) employed by the CFMMEU;
(b) the National Vice President of the CFMMEU National Executive Committee and Secretary of the CFMMEU Construction and General Division – Queensland and Northern Territory Divisional Branch;
(c) an officer and official of the CFMMEU within the meaning of those terms in sections 12 and 793 of the FW Act;
(d) a person who held an entry permit issued pursuant to section 512 of the FW Act, and a permit holder within the meaning of sections 497 and 500 of the FW Act;
(e) a building industry participant within the meaning of that term in section 5 of the BCIIP Act;
(f) relevant to the matters alleged herein, acting in his capacity as an officer and official of the CFMMEU; and
(g) relevant to the matters alleged herein, acting within the scope of his actual or apparent authority for and on behalf of the CFMMEU.
5.The Fourth Respondent (Mr Bransdon) was at all material times:
(a) Employed by Lendlease Building Pty Ltd (Lendlease); and
(b) the CFMMEU delegate for the project and site.
The project and site
6.The Southbank New Performing Arts Complex project is and was at all material times:
(a) a construction project involving the construction of a new performing arts complex (Project);
(b) being constructed by Lendlease; and
(c) located at the corner of Russell Street and Grey Street South Brisbane (Site)
Lendlease
7.Lendlease was at all material times relevant to he matters alleged herein:
(a) A corporation duly incorporated under the Corporations Act 2001 (Cth);
(b) the person with management and control of the Project and the Site; and
(c) the occupier of the Site.
8.On 5 November 2020, construction work was being conducted on the Site by persons employed or engaged by Lendlease and its subcontractors:
(a) who were eligible to be members of the CFMMEU; and
(b) whose interests the CFMMEU was entitled to represent.
9.At all material times M Lachlan Tipler was employed by Lendlease as Construction manager for the Project.
10.At all material times Mr Andrew Clark and Mr Karl Andriske were employed by Lendlease as Foremen for the Project and the Site.
11.Mr Clark and Mr Andriske were working as Foremen on the Site on 5 November 2020.
Preparation for CFMMEU Meeting
12.In or about late October 2020, Lendlease was informed by Mr Bransdon that persons from the CFMMEU would come to the site to meet with members of the CFMMEU on 5 November at 6:30am (the Meeting).
Particulars
Mr Bransdon orally informed Mr Simon Shannon (on behalf of Lendlease) of the above matters some time during the final week of October 2020
13.The purpose of the Meeting was for the CFMMEU to hold discussios with workers, o=including those working at the Site, about a proposed enterprise bargaining agreement (EBA)
14.In preparation for the Meeting, Mr Tipler booked a meeting room located offsite, across the street.
15.On 4 November 2020, Lendlease issued a memorandum to its employees at the Site advising that the memplyeess were authorised to attend the Meeting with the CFMMEU on the condition that the Meeting was held off-site and lasted no longer than 60 minutes (the Memorandum)
16.The Memorandum was read by Mr Bransdon on 4 November 2020.
17.At about 12:30pm on 4 November 2020, Mr Clark and Mr Bransdon went to the meeting room, located offsite across the street, which Lendlease had booked for the meeting.
18.At all material times, each of Mr Blakeley, Mr Ravbar and Mr Bransdon knew that Lendlease required that the meeting would take place offsite.
Particulars
The knowledge of Mr Blakeley, Mr Ravbar and Mr Bransdon is to be inferred from the matters pleaded in paragraphs 2 to 5 and 12 to 17 above.
The Events of 5 November 2020
19.The following events, pleaded in paragraphs 20 to 43 below, took place on 5 November 2020.
20.At about 6:00 am, Mr Clark and Mr Andriske were present at gate 2 o the Site, which is the pedestrian gate for providing gaccess to the Site situated on the Russell Street side of the Site (the Gate).
21.At about 6:10 am on 5 November 2020, a group fo approximately 10 to 12 people approached the Gate from the Brisbane River end of Russell Street (the Group)
22.None of the Group pleaded in paragraph 21 above were employees of Lendlease and none of them had been inducted or were authorised to tenter the Site.
23.Lendlease had established and imposed occupational health and safety requirements that applied to the Site (by way of posting these requirements on the Gate), including that:
(a) All visitors must report to site office; and
Particulars
This requirement was imposed by way of a sign on the Gate at the Site stating “all visitors must report to site office”.
(b) Unauthorised personnel were not permitted to access the Site
Particulars
This requirement was imposed by way of a sign on the Gate at the Site stating “No unauthorised access”.
24.As the Group approached the Gate:
(a) Mr Bransdon walked from the lunchroom, which was located on the Site, existed the Gate and met with the Group; and
(b) Mr Blakeley approached the Gate and had a conversation with Mr Bransdon and the Group.
25.A conversation then took place between Mr Clark and Mr Andriske on one side and Mr Blakeley and Mr Bransdon on the other. During this conversation:
(a) Mr Clark and Mr Andriske were standing either directly in or just to the inside of the Gate; and
(b) Mr Blakeley and Mr Bransdon were standing in front of the Gate on the outside of the Site with the Group standing behind them.
26.During the conversation pleaded at paragraph 25 above,
(a) Mr Clark asked who the people in the Group were, to which Mr Bransdon replied with words to the effect that the Group was “there for the meeting”
(b) Mr Clark said words to the effect that the Meeting could be conducted offsite but that the Group were not allowed to come on the Site;
(c) Mr Bransdon respondent by saying words to the effect that the Group was “getting inducted for Anora.” Mr Bransdon also said “we are fucking coming on”;
(d) Mr Clark responded with words to the effect that Lendlease had organised an off-site meeting room for the Meeting, to which Mr Blakeley responded with words to the effect, “we are not coming to an off-siter meeting room, we are coming on site, we’re fucking coming on”;
(e) Mr Clark respondent with words to the effect, “we have organised a meeting room next door, if you come on Site it will be industrial action. Please use the room that has been organised”: and
(f) Mr Bransdon said words to the effect, “mate, we are fucking coming on.”
27.During the conversation pleaded in paragraph 26 above, the Group was standing behind Mr Blakeley and Mr Bransdon and was listening to the conversation. On at least one occasion, a member of the Group shouted, “we are fucking coming on.”
28.Following the conversation pleaded in paragraphs 25 to 27 above, Mr Blakeley stepped forward towards Mr Clark, and:
(b) Mr Clark took a step backward to create distance between Mr Blakeley and himself;
(c) as Mr Clark took a step backward, Mr Blakeley stepped into the Gate opening and turned, so his back was now to Mr Clark;
(d) Mr Blakeley, now standing in the Gate opening, put his arms out, so they were straight out and at about shoulder height. This formed a barrier and allowed the others within the Group to pass through the Gate.
29.At the same time as the matters pleaded in paragraph 28 above, Mr BRansdon also stepped toward Mr Clark and Mr Andriske. As a result of the action of Mr Bransdon and also Mr Blakeley as pleaded in paragraph 28 above, Mr Andriske also stepped backwards away from Mr Bransdon and Mr Blakeley so as to create space between himself and Mr Blakeley and Mr Bransdon causing him (Mr Andriske) to move back from the gate opening.
30.With the gate opening now clear, either Mr Bransdon or Mr Blakeley said to the Group words to the effect, “c’mon boys, come through” and signalled with their hands for the Group to walk through the Gate.
31.Mr Bransdon, Mr Blakeley and the Group then walked through the Gate, onto the Site and walked directly to and then entered the lunchroom.
32. Mr Blakeley did not report to the Site Office on 5 November 2020.
33.A few minutes later, Mr Bransdon and Mr Blakeley existed the lunchroom and returned to the Gate and exited the Site. At this time, Mr Ravbar arrived at the Site. Mr Blakeley, Mr Ravbar and Mr Bransdon approached the Gate together.
34.Again, Mr Clark stated to Mr Blakeley, Mr Ravbar and Mr Bransdon that they were not allowed on the Site as they had not been inducted and that if they wanted to have the MEetnig they could go to the off-site meeting room. Mr Bransdon responded to this with words to the effect, “we’re coming on.”
35.Following the above conversation, Mr Blakeley, Mr Brandon and Mr Ravbar entered the Site and walked directly to, and then entered the lunchroom.
36.Mr Ravbar did not report to the Site Office on 5 November 2020.
37.Mr Blakeley and Mr Ravbar remained on the Site and held the Meeting in the lunchroom, which was attended by Lendlease employees and the Group.
38.At approximately 7:45am, Mr Blakeley, Mr Ravbar and Mr Bransdon exited the lunchroom, approached the Gate and exited the Site.
39.When entering the Site on 5 November 2020, Mr Blakeley and MR Ravbar were seeking to exercise a right in accordance with Part 3-4 of the FW Act.
Particulars
The purpose for Mr Blakeley and Mr Ravbar entering the Site was to attend the Meeting to hold discussions about a proporsed EBA. Such discussions are covered by the right provided by section 484 of the FW Act.
40.At no stage did Mr Blakeley provide an entry notice to Lendlease in respect of the entry in accordance with section 487 of the FW Act.
41.At no stage did Mr Ravbar provide an entry notice to Lendlease in respect of the entry in accordance with section 487 of the FW Act.
42.As a consequence of the matters pleaded in paragraphs 40 and 41 above, neither Mr Blakeley nor Mr Ravbar were lawfully entitled to enter the Site, remain on the Site or hold discussions with workers on the Site without the permission of Lendlease.
43.In the premises pleaded at paragraphs 12 to 41 above, at the time that he entered the Site Mr Blakeley knew that:
(a) Lendlease required the Meeting to be conducted off-site
(b) he did not have the permission of Lendlease to enter the Site, remain on the Site or hold discussions with workers on the Site;
(c) the Site occupational health and safety requirements prohibited unauthorised cess and required visitors to report to the Site Offic;
(d) the Group were not inducted or authorised to be on the Site; and
(e) the Group did not have permission of Lendlease to enter the Site.
44.In the premises pleaded at paragraphs 12 to 41 above, at the time that he entered the Site, Mr Ravbar knew that:
(a) Lendlease required the Meeting to be conducted off-site;
(b)he did not have the permission of Lendlease to enter the Site, remain on the Site or hold discussion with workers on the Site;
(c)the Site occupational health and safety requirements prohibited unauthorised access and required visitors to report to the Site Office;
(d)The Group (which had entered the Site with Mr Blakeley) were not inducted or authorised to be on the Site; an d
(e) the Group did not have the permission of Lendlease to enter the Site.
45.In the premises pleaded in paragraphs 12 to 43 above, on 5 November 2020, Mr Blakeley:
(a)entered the Site without giving 24 hours written notice in breach of section 487 of the FW Act
(b)entered and remained on the Site in circumstances where he had no lawful basis to do so;
(c)failed to comply with Site’s occupational health and safety requirements that prohibited unauthorised access and required visitors to report to the Site Office;
(d)entered and remained on the Site in direct contradiction of Lendlease’s request to conduct the Meeting off-site;
(e) attended the Meeting which was not authorised to be held on Site;
(f)facilitated the entry of the Group onto the Site in circumstances where he knew that they were not authorised to be on the Site; and
46. In the premises pleaded in paragraphs:
(a) 45(a) to (e); and
(b) 45(f)
above (separately and cumulatively), Mr Blakeley acted in an improper manner within the meaning of and for the purposes of Section 500 of the FW Act.
47. Accordingly, Mr Blakeley contravened section 500 of the FW Act.
Contraventions by Mr Ravbar
48.In the premises pleaded in paragraphs 12 to 44 above, on 5 November 2020, Mr Ravbar:
(a)entered the Site without giving 24 hours written notice in breach of section 487 of the FW Act;
(b)entered and remained on the Site in circumstances where he had no lawful basis to do so;
(c)failed to comply with Site’s occupational health and safety requirements that prohibited unauthorised access and required visitors to report to the Site Office;
(d) attended the Meting which was not authorised to be held on Site; and
(e)entered and remained on the Site in direct contradiction of Lendlease’s request to conduct the Meeting off-site.
49.In the premises pleaded in paragraph 48 above, Mr Ravbar acted in an improper manner within the meaning of and for the purpsoes of section 500 of the FW Act.
50. Accordingly, Mr Ravbar contravened section 500 of the FW Act.”
Paragraphs [65] – [69] inclusive of the Further Amended Statement of Claim were relevantly as follows:
“[65]By reason of the operation of section 793 of the FW Act, and the matters alleged in paragraphs 2 to 5 herein:
(a)all actions and conduct of each Mr Blakeley and MR Ravbar as alleged herein were also the actions and conduct of the CFMMEU; and
(b)the CFMMEU possessed the same state of mind as each of Mr Blakeley and Mr Ravbar in relation to those actions and conduct, as alleged herein.
[66]At all material times when acting as alleged herein, Mr Blakeley and Mr Ravbar were aware of and had knowledge of:
(a) their own actions as alleged herein; and
(b)the essential facts and matters necessary to establish the contravention of sections 500 of the FW Act alleged against each of them herein.
Particulars
Mr Blakeley’s and Mr Ravbar’s awareness and knowledge is to be inferred from all of the surrounding facts and circumstances, including the matters alleged herein.
[67]By reason of the matters pleaded at paragraph 65 and 66, the CFMMEU is a person who was involved in, within the meaning of that term in section 550(2) of the FW Act, Mr Blakeley’s contravention as set out in paragraphs 45 to 47 above in that by operation of section 793 of the FW Act the CFMMEU is taken to have engaged in the conduct of Mr Blakeley, and to hold the state of mind of Mr Blakeley, and was therefore, directly or indirectly, knowingly concerned in Mr Blakeley’s contraventions of section 500 of the FW Act.
[68]By reason of the matters pleaded at paragraphs 65 and 66, the CFMMEU is a person who was involved in, within the meaning of that term in section 550(2) of the FW Act, Mr Ravbar’s contravention as set out in paragraphs 48 to 50 above in that by operation of section 793 of FW Act the CFMMEU is taken to have engaged in the conduct of Mr Ravbar, and to hold the state of mind of Mr Ravbar, and was therefore, directly or indirectly, knowingly concerned in MR Ravbar’s contravention of section 500 of the FW Act.
[69]By reason of the matters pleaded at paragraphs 65 to 68 above, the CFMMEU is taken to have contravened section 500 of the FW Act on two occasions by the operation of section 550(1) of the FW Act.”
Was the Contravening Conduct Committed as One Course of Conduct?
Section 500 of the FWA was as follows:
“S 500 Permit holder must not hinder or obstruct
A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
Note 1: This section is a civil remedy provision (see Part 4-1).
Note 2:A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.
Note 3:A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).”
Whether or not the conduct of different people will or will not be deemed to have been committed as one course of conduct will be determined by the facts of each individual case. No hard and fast rules should be applied when considering the course of conduct principle.
In the present matter, the CFMMEU, by the actions of Blakeley and Ravbar, was taken to have been engaged in the contravening conduct. It is accordingly liable for the imposition upon it of a pecuniary penalty in respect of the conduct of its agents. Sections 550 and 793 of the FWA relevantly provided as follows:
“S 550 Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note:If a person (the involved person ) is taken under this subsection to have contravened a civil remedy provision, the involved person's contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.”
…
S 793 Liability of bodies corporate
Conduct of a body corporate
(1)Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreemtn (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have engaged in also by the body.
State of mind of a body corporate
(2)If, for the purposes of this act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b);
And
(b) that the person had that state of mind.
Meaning of state of mind
(3)the state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, beief or purpose
Disapplication of Part 2.5 of the Criminal Code
(4)Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.
Note:Part 2.5 of the Criminal Code deals with corporate criminal responsibility.
(5)In this section, employee has its ordinary meaning.”
The applicant’s pleaded case was that Blakeley and Ravbar arrived at the Southbank construction site within minutes of each other. The Court finds that though each of Blakeley and Ravbar committed separate contraventions of the FWA – it was admitted that they had separately entered upon the construction site at different times - such contraventions were part of the one course of conduct. Each of them had attended at the site for the purpose of together conducting an unauthorised on-site meeting with union members who had been working there for some time, as well as with employees of sub-contractors who had entered upon the site with Blakeley for the purpose of their induction prior to starting work there.
The unauthorised actions of Blakeley and Ravbar were designed to have the effect of showing that they would not kowtow to the wishes of the contractor, irrespective of the reasonableness of the arrangements for the conduct of the meeting which had been made by such contractor. Each of them disregarded requests for them to leave the site and conduct a meeting across the road where the contractor, Lendlease, had arranged for the meeting to be held. The fact that Blakeley first entered upon the site, and later re-entered upon the site in the company of Ravbar some minutes later, was of no practical significance, in that the combined conduct of each of Blakeley and Ravbar was still part of the one course of conduct undertaken for the same purpose.
Penalties – Relevant Principles
In ABCC v CFMMEU and Ors (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262 at [10] – [12], Allsop CJ said as follows:
“[10]I agree with the judgment of Rangiah J that the learned primary judge erred in drawing from her conclusion that on each of the nine days of industrial disruption there was a single course of conduct that a single penalty should be imposed on each day — that is, that only one maximum penalty was available where there were multiple contraventions that constituted a single course of conduct. This is the same error discerned in the primary judge’s reasoning and approach in Australian Competition and Consumer Commission v Yazaki Corporation[2018] FCAFC 73; 357 ALR 55 at 108 [241].
[11]But that error, in my view, had its genesis in the task that the primary judge set herself immediately antecedently. Her Honour asked whether there was a single course of conduct as if (in the absence of the relevant operation of a provision such as s 557 of the Act) there were a single thing or conception of “a course of conduct”. As the Full Court said in Transport Workers’ Union of Australia v Registered Organisations Commissioner [No 2][2018] FCAFC 203; 363 ALR 464(TWU v ROC) at [91]:
… Absent the relevant application of a provision such as s 557(1) of the Fair Work Act, the task is to evaluate the considerations informing the contraventions (factual and legal) in order to impose appropriate penal relief that does not punish twice for the same conduct. To use a phrase such as “a course of conduct” may imply that there is such an abstracted concept to be found, and once found it implies a single contravention or a single maximum penalty. That is the danger of the phrase. Rather, it is necessary (in the absence of a statutory enquiry such as in s 557(1)) to examine all the conduct and enquire how its course and its explanation factually and legally informs the imposition of penal orders, in particular to avoid double punishment. We see nothing in Williams or The Agreed Penalties Case that was intended to displace the need to consider the statute in question and to recognise that the object of the course of conduct principle is to avoid double punishment.
[12]The danger in the use of the phrase identified by the Full Court in TWU v ROC occurred here: in finding a single course of conduct, the primary judge confined the penal response to one determined by reference to one maximum penalty. The preferable enquiry, conformable with the purpose of the principle and with what was said in TWU v ROC is “to examine all the conduct and enquire how its course and its explanation factually and legally informs the imposition of penal orders, in particular to avoid double punishment.” This enquiry may involve the finding of factual and legal overlap and interrelationship among the contraventions. A conclusion that there is such an interrelationship or overlap, and so, to use the expression, a course of conduct, does not mark the end of the enquiry, but the beginning of one: How, given the nature of the interrelationship or overlap, should that affect the proper fixing of penalties for the found contraventions so as to avoid multiple punishment for the same offending?”
Each of Allsop CJ and Griffiths J agreed with Rangiah J in the The Nine Brisbane Sites Appeal case where, at [123] – [132], His Honour found as follows:
“[123]The course of conduct (or one transaction) principle under the general law has been stated in a variety of ways. A useful exposition of the principle was gien by Owen JA in Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319 at 328 [22]:
… At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.
[124] In Transport Workers’ Union of Australia v Registered Organisations’ Commissioner [No 2 [2018] FCAFC 203; 363 ALR 464 at [84]–[91], the Full Court, referring to other judgments of the Full Court, considered the application of the course of conduct principle in the assessment of pecuniary penalties. The principles include the following:
(1)The purpose of the common law course of conduct principle is to ensure that, having regard to the circumstances (factual and legal), a party is not penalised more than once for the same conduct.
(2)That phrase should not simplistically be adopted to transfer multiple contraventions into one contravention, or, necessarily, to impose one penalty by reference to one maximum amount.
(3)The principle cannot, of itself, operate as a de facto limit on the penalty to be imposed.
(4)The application of the principle must be informed by the particular legislative provisions relevant to the proceedings. In particular, weight must be given to the fact that the legislature has deliberately and explicitly created separate contraventions for each relevant action.
(5)The application and utility of the principle must be tailored to the circumstances.
(6)A judge is not obliged to apply the principle if the resulting penalty fails to reflect the seriousness of contraventions.
(7)The task is to evaluate the conduct and its course and assess what penalty is, or penalties are, appropriate for the contraventions.
(8)It is necessary to examine all the conduct and enquire how its course and its explanation factually and legally informs the imposition of penalties, in order to avoid double punishment.
[see Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 at [31]; Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 357 ALR 55 at [231]–[236]; Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; 262 ALR 417 at [16]–[19]; Australian Building and Construction Commissioner v Construction Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 at [148].]
[125]The sentencing task of the primary judge required the exercise of a judicial discretion. Her Honour was required to determine the appropriate penalty having regard to all the relevant objective and subjective circumstances. Many of the issues that fell to be decided along the way, such as whether there was a risk of double punishment and the level of penalty that would avoid that risk, were themselves discretionary elements involved in the sentencing discretion. In House v R [1936] HCA 40; 55 CLR 499, Dixon, Evatt and McTiernan JJ explained the principles upon which an appellate court will interfere with a discretionary judgment, at 504–505:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
[126]In this case, the primary judge decided that the Union’s contraventions on 13, 14 and 23 September 2016 should be treated as arising within “a single course of conduct” on each day. Her Honour apparently reached that conclusion because each contravention was referable to the single campaign the Union was conducting. In other words, the contraventions had the single purpose of coercing Hutchinson into engaging only subcontractors that had enterprise agreements with the Union. The Commissioner submits that the primary judge was wrong to decide that there was a single course of conduct on each day.
[127]However, the Commissioner has not submitted that her Honour acted upon a wrong principle or made some other error of law or of fact. In Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1, Middleton and Gordon JJ observed at 12 [39] that, “Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions”. But in this case, there was more than bare identity of motive. That multiple actions were taken on the same day, against the same business and with the same motive, provided a basis for her Honour’s conclusion, and it cannot be held that the conclusion was unreasonable or otherwise fell within the ambit of appealable error as described in House v R. The Commissioner’s submission simply expresses disagreement with the conclusion, and provides no basis to set aside her Honour’s exercise of discretion.
[128]The Commissioner next submits that the primary judge erred by approaching the sentencing task as though only one maximum penalty was available to be imposed for the multiple contraventions that her Honour had found to come within a single course of conduct. The Commissioner points out that it was open to her Honour to impose up to two penalties for the Union’s contraventions on both 13 and 14 September and up to six penalties for the contraventions on 23 September. However, her Honour imposed only one penalty for each date. Her Honour concluded that “it was appropriate” to impose a penalty of $48,000 for each date, but did not explain why that was so.
[129]There were two strikes and four stoppages at six different sites on 23 September 2016. There were two strikes on each of 13 and 14 September at two different sites. The scale of the industrial action on the three days and disruption was significantly greater than for the other days. For example, the scale of the industrial disruption on 23 September, where the two strikes were taken for a whole day, the four stoppages lasted up to two hours each and at least 99 employees ceased work, can be contrasted with 21 September, where there was a single stoppage lasting up to two hours and approximately 16 employees ceased work. Yet a single penalty of $48,000 for the contraventions on 23 September and a single penalty of the same amount for the contravention on 21 September was imposed upon the Union. Intuitively, the same penalty for significantly more serious, widespread, concerted and disruptive conduct seems anomalous.
[130]The Union submits that the uniformity of the penalties may reflect a scaling-up of the penalties for the single contravention days such that the total penalty is intended to reflect the totality of the conduct over the course of the month. However, there is no hint of that type of reasoning in the primary judge’s reasons, and that submission cannot be accepted.
[131]The primary judge’s reasons set out a finding that the contraventions on each of the nine days of industrial disruption arose in a single course of conduct, and then proceed, without further reasoning of any significance, to the conclusion that the same penalty should be imposed for each day. The proximity of these findings in her Honour’s reasons, and the absence of relevant interposed reasoning, suggests that they are linked. Her Honour did not otherwise explain why it was appropriate to impose the same penalty. Having regard to the absence of any other explanation and the extent of the disparity in the scale and seriousness of the industrial action on the three relevant days compared to the other days, it should be inferred that her Honour’s approach was that only one maximum penalty was available where there were multiple contraventions that constituted what her Honour had found to be a single course of conduct.
[132]The course of conduct principle exists to ensure that where that conduct results in more than one contravention, an offender is not punished more than once for what is effectively the same offending conduct. A finding that multiple contraventions are connected by a single course of conduct raises a question as to what is the appropriate penalty for those contraventions that avoids double punishment, but does not answer that question. The question is answered by evaluating the conduct and its course and assessing what penalty is, or what penalties are, appropriate for the contraventions. It was an error for the primary judge to take the approach that only a single penalty up to the statutory maximum for one contravention was available for multiple contraventions arising within a single course of conduct.”
In this matter, notwithstanding that the CFMMEU was taken to have engaged in the conduct of each of Blakeley and Ravbar in circumstances where the Blakeley and Ravbar contraventions were part of the one course of conduct, the practical reality of what occurred, for the purpose of assessing what penalty or penalties ought to be imposed upon the CFMMEU, was that, by s.793 of the FWA, the CFMMEU was liable for each contravention. That was the clear intention of the Legislature. What is appropriately to be imposed as a penalty, in such circumstances, is conditioned not only by reference to what contravening conduct physically occurred, and the time frame within which such conduct occurred, but also by reference to the past conduct of the offending party.
The imposition of a pecuniary penalty must in the circumstances of each different case be proportionate. Such proposition has long been recognised. [1] The question of proportionality was addressed by Allsop CJ, White and Wigney JJ in Pattinson v ABCC (2020) 387 ALR 75 at [162] and [191] where it was said:
“[162] Nothing said by Bromwich J other than reflects the consistent expression of principle by this Court before and after the Agreed Penalties Case (HC), including, in point of expression of principle, what was said by Tracey and Logan JJ in Broadway on Ann to the extent it was drawn from appellate authority, that in the furtherance of the object of deterrence of the kind of contravention before the court the court’s task is to set an appropriate penalty for the instant contravention that is proportionate to the nature and gravity of that contravention informed by all relevant circumstances, including what can be concluded as to any willingness to disobey or defy the law, and that the maximum penalty is for the worst kind of case that warrants the maximum level of deterrence set by Parliament.
…
[191]Nevertheless, we are not in the domain of crime. The imposition of civil penalties is free from notions of retribution and denunciation, its object is deterrence. But as is clear from the overwhelming preponderance of authority, the penalty is imposed for the instant contravention in furtherance of the deterrence of such or like contraventions by the contravenor or by others. The assessment of the character of the contravention includes all factors that can rationally go to its gravity and seriousness, bearing in mind that the object of the imposition is deterrence. That includes an attitude of displayed and continuing disobedience to the law, as part of a characterisation of the nature and character of what was done.”
[1] Veen v The Queen (1987-88) 164 CLR 465.
Proportionality considerations necessarily differ, and are dependent upon, the particular factual circumstances of each case. A first time body corporate offender will be treated differently from a recalcitrant body corporate offender, even if each of their respective contraventions were of a similar nature, and were committed in similar circumstances, by their agents.
Insofar as the CFMMEU was concerned, Attachment B to the Applicant’s written submissions was a schedule which recorded a history of relevant contraventions of provisions of the FWA committed by it and its predecessor, the CFMEU. There were 186 such contraventions recorded. The first 15 contraventions recorded in Attachment B reflected the number of court decisions handed down for CFMMEU contraventions after the 5 November 2020 contravening conduct of Blakeley and Ravbar. There have been additional contraventions found, and additional pecuniary penalty court orders made since the hearing of this matter.
The fact that 171 contraventions had been the subject of court orders prior to the subject 5 November 2020 contraventions indicates that attempts by courts over time to deter ongoing contraventions by the union have been unsuccessful. The fact that there have been at least 15 further court orders in respect of union contraventions since 5 November 2020 indicates that the CFMMEU’s appalling and disgraceful record of established contraventions continues, unabashed and unabated. There can be no doubt that the CFMMEU is a rogue union untroubled by its ongoing bad behaviour. It seems that it prides itself on its recidivism.
Quantum of Pecuniary Penalties
In this particular matter, the Court has been mindful of the totality principle when considering what appropriate penalties ought to be imposed upon the CFMMEU in respect of each of the Blakeley and Ravbar contraventions. The Court has recognised that it ought not to impose individual penalties such that the total aggregate penalty imposed is disproportionate to the offending conduct.
In ABCC v CFMEU (Bendigo Theatre Case) (No 2) [2018] FCA 1211 at [29] – [31] inclusive, Tracey J held as follows:
“[29]It is also necessary to ensure that a respondent is not punished twice for the same conduct. The principle was explained by the Full Court in Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 at 12; [2010] FCAFC 39 at [39] (Middleton and Gordon JJ) as follows:
It [the “course of conduct” principle] is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is ‘the same criminality’ and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.
(Original emphasis.)
The principle does not require that multiple contraventions be treated as a single contravention even if they occur in close proximity one to the other and arise to some extent as part of a course of conduct. On the contrary, the Court is required to impose a penalty for each contravention: see Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73 at [227], [229] (Allsop CJ, Middleton and Robertson JJ); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 at 95, 99-100; [2017] FCAFC 113 at [128]- [130] and [148]-[149] (Dowsett, Greenwood and Wigney JJ). The various penalties can be adjusted to ensure that the ultimate or aggregate penalty is proportionate to the offending. Ameliorative measures that are available to the Court include making penalties concurrent or reducing the overall burden when the totality principle is applied.
[30] The Cahill principle is to be applied separately from and anterior to the final check constituted by the application of the totality principle: Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 at 396-397; [2008] FCAFC 70 at [41]- [42] (Stone and Buchanan JJ). It does not necessarily require the application of a single penalty for all of the contravening conduct: Cahill at 13 [41]-[42].
[31]The totality principle falls for consideration at the end of the process. It requires the Court to stand back and decide whether the aggregate of multiple penalties fixed by it is appropriate for the total contravening conduct involved: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450; (1997) 145 ALR 36 at 53; [1997] FCA 450 at 49-50 (Goldberg J); Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331 at 350; [2015] FCAFC 59 at [40][41] (Dowsett, Greenwood and Wigney JJ). The principle is designed to “ensure that the aggregate of penalties imputed is not such as to be oppressive or crushing”: StuartMahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426; (2008) 177 IR 61 at 73; [2008] FCA 1426 at [60] (Tracey J). A consequence of the application of the principle is that the aggregate penalty may be reduced if it is considered to be too great.”
The maximum penalty able to be imposed upon the CFMMEU under s. 500 of the FWA for the Blakeley contravention was $66,600.00. The upper limit within the penalty range submitted on behalf of the Applicant as being appropriate was 90% of such sum. The Court accepts that such percentage is in the circumstances appropriate – namely a pecuniary penalty in the amount of $59,940.00.
For the same reasons as found in respect of the Blakeley contravention, the Court finds that the same pecuniary penalty ought to be imposed upon the CFMMEU in respect of the Ravbar contravention – namely a pecuniary penalty imposed against the CFMMEU in the amount of $59,940.00.
In imposing such penalties, the Court has had particular regard to the following:
(a)The Union’s lack of contrition for the contravening conduct.
(b)The admission of liability, albeit at a late stage of the proceeding, shortly before the listed trial hearing dates.
(c)The Union’s past contravening conduct.
(d)The pointless insistence on the holding of an on-site meeting when the contractor had made entirely reasonable arrangements for the holding of such meeting off-site across the street.
(e)The Court time wasted consequent upon the vacation of four listed hearing days consequent upon Judge’s chambers being advised that only one day out of five would be required for the hearing of the matter.
(f)The unnecessary expense incurred by the Applicant, pursuant to the fulfilment of its statutory compliance duty, where such actions as were taken by it ought never to have been necessary.
(g)The time lost, and necessary expense incurred, by the contractor, for the purpose of its relevant agents and employees taking time off to assist the Applicant in the preparation for, and presentation of, its case.
Insofar as Ravbar was concerned, it is of significance that he was, at the time of the contravening conduct, the National Vice President of the CFMMEU National Executive Committee and Secretary of the CFMMEU Construction and General Division – Queensland and Northern Territory Divisional Branch. He was well aware of the need for compliance by him with provisions of the FWA, but he chose to pointlessly flout his obligation to do so.
Ravbar has contravened industrial laws in the past. As a result of conduct committed by him as the primary actor in work-site disputes in January and February 1999, Ravbar was found to have contravened provisions of the Workplace Relations Act (1996) (Cth) by Court order made on 22 December 2000. The offending conduct in relation to those contraventions involved Ravbar seeking to have an employee removed from a work-site because that employee had failed to join the CFMEU.
The maximum penalty able to be imposed on Ravbar in respect of his contravention is in the amount of $13,320.00. The Court considers it appropriate to impose a penalty which represents 80% of the maximum penalty able to be imposed, having regard to Ravbar’s senior position within the union, his prior contravening conduct, the brazen disregard shown by him of binding provisions of the FWA, and the need for deterrence. The penalty to be imposed upon Ravbar is accordingly in the amount of $10,656.00.
Insofar as Blakeley was concerned, the Court has noted that he has not previously been found to have acted in contravention of provisions of the FWA. Nonetheless, the actions of Blakeley were, similarly to those of Ravbar, brazen and pointless. His conduct fell into the same category of disregard for compliance with provisions of the FWA as the Court has found was the case in respect of Ravbar.
The same maximum penalty applied to Blakeley as it did to Ravbar. Having regard to the fact that Blakeley was not a senior member of the union, and further that it might be seen that he was acting under the instruction or influence of Ravbar as the senior union member present, the Court considers that is appropriate that a pecuniary penalty equating to 60% of the maximum penalty be imposed upon Blakeley – namely in the amount of $7,992.00.
And it is so ordered.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 3 February 2022
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