Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union and Ors (No.2)
[2019] FCCA 3623
•12 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION & ORS (No.2) | [2019] FCCA 3623 |
| Catchwords: INDUSTRIAL LAW – Breaches of a civil remedy provision of the Fair Work Act 2009 – imposition of pecuniary penalties – relevant considerations – course of conduct principle – grouping principle – totality principle – prevention of double civil jeopardy – the manner in which a contravener’s prior contraventions may affect the penalty to be imposed for a subsequent contravention. |
| Legislation: Fair Work Act 2009, ss.50, 340, 343, 363, 417, 500, 539, 546, 556, 557 |
| Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union & Ors [2019] FCCA 2160 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2019] FCCA 3261 Australian Competition and Consumer Commission v Yazaki Corporation and Anor (2018) 262 FCR 243 |
| Applicant: | AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
| First Respondent: | CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION |
| Second Respondent: | TONY SLOANE |
| Third Respondent: | LUKE COLLIER |
| File Number: | SYG 1132 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 26 November 2019 |
| Date of Last Submission: | 26 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Y Shariff |
| Solicitors for the Applicant: | Corrs Chambers Westgarth |
| Counsel for the Respondents: | Mr I Latham |
| Solicitors for the Respondents: | Taylor & Scott |
ORDERS
The first respondent pay penalties totalling $135,000.
The second respondent pay penalties totalling $15,200.
The third respondent pay a penalty of $6,700.
The penalties be paid to the Commonwealth within twenty-eight days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1132 of 2015
| AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
Applicant
And
| CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION |
First Respondent
| TONY SLOANE |
Second Respondent
| LUKE COLLIER |
Third Respondent
REASONS FOR JUDGMENT
INTRODUCTION
In reasons for judgment delivered in this matter on 7 August 2019, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union & Ors [2019] FCCA 2160, (“First Judgment”), it was found that on 24 March 2014 the respondents had contravened the Fair Work Act 2009 (“FW Act”) in various respects. Since the events in question the first respondent (“CFMMEU”) has changed its name from the Construction, Forestry, Mining and Energy Union to the Construction, Forestry, Maritime, Mining and Energy Union. The contraventions found were as follows:
a)the CFMMEU contravened s.50 of the FW Act at a building site on Wattle Street, Ultimo (“Ultimo site”);
b)the second respondent (“Mr Sloane”), and by the operation of s.363 of the FW Act the CFMMEU, contravened s.340 of the FW Act, at the Ultimo site;
c)Mr Sloane, and by the operation of s.363 of the FW Act the CFMMEU, contravened s.343 of the FW Act, at the Ultimo site;
d)Mr Sloane, and by the operation of s.363 of the FW Act the CFMMEU, contravened s.417 of the FW Act at the Ultimo site;
e)Mr Sloane contravened s.500 of the FW Act at the Ultimo site;
f)the CFMMEU contravened s.50 of the FW Act at a building site on Coulson Street, Erskineville (“Erskineville site”);
g)the third respondent (“Mr Collier”), and by the operation of s.363 of the FW Act the CFMMEU, contravened s.340 of the FW Act at the Erskineville site;
h)Mr Collier, and by the operation of s.363 of the FW Act the CFMMEU, contravened s.343 of the FW Act at the Erskineville site; and
i)the Mr Sloane contravened s.500 of the FW Act at a building site at the Hornsby Ku-ring-gai Hospital, Hornsby (“Hornsby site”).
Following a subsequent interlocutory hearing it was held on
13 November 2019, Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2019] FCCA 3261, that the applicant (“Commissioner”) could not seek orders preventing Mr Sloane or Mr Collier from soliciting the CFMMEU to pay such penalties as may be imposed on them or from accepting financial support from the CFMMEU referable to those penalties unless the statement of claim was amended to seek that relief.
The matter is before the Court for consideration of what, if any penalties should be imposed as a consequence of the findings made in the First Judgment.
Penalties applicable
Sections 50, 340(1), 343(1), 417(1) and 500 are civil remedy provisions: s.539 of the FW Act. In combination ss.539(2) and 546(2) of the FW Act provide that the maximum pecuniary penalty for the contravention of those civil remedy provisions is 60 penalty units for an individual and 300 penalty units for a body corporate. As at 24 March 2014 a penalty unit was worth $170: s.4AA Crimes Act 1914. Accordingly, the maximum penalty that might be imposed for each contravention by Mr Sloane and Mr Collier is $10,200 (s.546(2)(a)). The maximum penalty that might be imposed for each contravention by the CFMMEU is $51,000 (s.546(2)(b)).
The respondents accept that a penalty is appropriate in each case and that penalties should be paid to the Commissioner.
In his written submissions the Commissioner sought payment to the Commonwealth within twenty-eight days.
CONSIDERATION
In this case, the question of penalty is to be determined as follows. The Court is to:
a)identify the separate contraventions involved;
b)noting that the FW Act’s statutory “course of conduct” provision, s.557, does not apply in this case, determine whether contraventions found to have occurred arise out of the same course of conduct or the one transaction, so it can determine whether it is appropriate to impose a “concurrent” or single penalty for those contraventions in order that the contravener is not punished more than once for the same conduct: Australian Competition and Consumer Commission v Yazaki Corporation and Anor (2018) 262 FCR 243 at 294-296 [226]-[234]; Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69 per Rangiah J at [182] (the “course of conduct” principle). However, even if contraventions are properly characterised as arising from the one transaction or a single course of conduct, the Court is not obliged to apply a concurrent or single penalty if to do so would not reflect the seriousness of the contravening conduct: Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461; ACCC v Yazaki Corporation at 296 [235];
c)determine whether contraventions overlap or would involve double or multiple punishment for the same or substantially similar conduct, so it can determine whether it is appropriate to “group” contraventions together in order that the contravener is not punished more than once for the same conduct: Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479 at [24], Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151 at [61]-[63] (the “grouping” principle);
d)note that the course of conduct principle and the grouping principle are distinct from the totality principle: Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at 396 – 398 [41]-[46];
e)determine an appropriate penalty to impose in respect of each contravention (whether a single contravention, a course of conduct or a group of contraventions) having regard to all of the circumstances of the case;
f)have regard to the operation of s.556 of the FW Act, which protects parties from civil double jeopardy, to the extent that particular conduct may attract penalties under two or more Federal statutory provisions; and
g)having fixed an appropriate penalty for each contravention, course of conduct or group of contraventions, consider the aggregate penalty to determine whether it is an appropriate response to the contravening conduct: Kelly v Fitzpatrick (2007) 166 IR 14 at 21 - 22 [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560, (the “totality principle”).
In setting civil penalties, the Court should have regard to their purpose. In that connection, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157, it was stated:
… the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. (at 195 [116] per Keane, Nettle and Gordon JJ) (reference omitted)
As Tracey J said in Kelly v Fitzpatrick at 18-19 [14], in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Mowbray FM identified “a non-exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty”. Justice Tracey adopted those considerations, describing them as follows:
· The nature and extent of the conduct which led to the breaches.
· The circumstances in which that conduct took place.
· The nature and extent of any loss or damage sustained as a result of the breaches.
· Whether there had been similar previous conduct by the respondent.
· Whether the breaches were properly distinct or arose out of the one course of conduct.
· The size of the business enterprise involved.
· Whether or not the breaches were deliberate.
· Whether senior management was involved in the breaches.
· Whether the party committing the breach had exhibited contrition.
· Whether the party committing the breach had taken corrective action.
· Whether the party committing the breach had cooperated with the enforcement authorities.
· The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and
· The need for specific and general deterrence.
Considerations relevant to this case are:
a)the nature and extent of the conduct which led to the breaches and the circumstances in which that conduct took place;
b)the nature and extent of any loss or damage sustained as a result of the breaches;
c)whether the breaches were properly distinct or arose out of the one course of conduct, the extent to which the grouping principle applies and whether s.556 of the FW Act has any application;
d)whether there had been similar previous conduct by the respondent;
e)the size and statutory status of the organization involved;
f)whether or not the breaches were deliberate;
g)whether the party committing the breach has exhibited contrition;
h)whether the party committing the breach co-operated with the enforcement authorities; and
i)the need for specific and general deterrence.
The nature and extent of the conduct which led to the breaches and the circumstances in which that conduct took place
The acts in question and the circumstances in which they occurred were fully discussed in the First Judgment. In brief the CFMMEU, through its officers Messrs Sloane and Collier, engaged in a targeted campaign against Reds Global, making bogus safety complaints because Reds Global had advised Michael Cambourn, one of its employees and also one of its officials, that it would no longer provide him with “suitable duties” and was contemplating terminating his employment with it.
The nature and extent of any loss or damage sustained as a result of the breaches
Such loss as Reds Global and the builders at the Ultimo and Erskineville sites might have suffered was not quantified. However, the respondents’ actions caused them at least administrative inconvenience and, at the Ultimo and Erskineville sites, wasted time and so wasted wages paid to at least the Reds Global employees who were prevented from working for a period.
Whether the breaches were properly distinct or arose out of the one course of conduct, the extent to which the grouping principle applies and whether s.556 of the FW Act has any application
The operation of s.556 of the FW Act
The respondents conceded that the FW Act’s course of conduct provision, s.557, did not apply in this case but argued that the equivalent common law principle did, quoting CFMEU v Cahill, where it was said:
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. (at 433 [39] per Middleton and Gordon JJ)
They submitted that the breaches were the consequence of a single campaign and were therefore entitled to be regarded at common law as one course of conduct.
The respondents also submitted that when setting penalties for conduct which contravenes more than one statutory provision and so raises the possibility of more than one penalty for the same conduct, the Court should have regard to s.556 of the FW Act, which provides:
556 Civil double jeopardy
If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.
They argued that it would be an error to apply s.556 before applying course of conduct and totality considerations, saying:
… The wording of section 556 is somewhat awkward in that it does not seem to operate until the Court has finalised its analysis to the point that there may be an “order to pay a pecuniary penalty”. That point cannot be reached by the Court until after it has engaged in instinctive synthesis of setting appropriate pecuniary penalties for contraventions that have been found. Once the section does operate, and an order has been made in relation to particular conduct, s.556 requires the Court not to make another order in relation to the same particular conduct.
The Commissioner submitted that for penalty-setting purposes, s.556 “operates in respect of”:
(a)the CFMMEU’s contraventions of ss 340, 343 and 417 at the Ultimo site such that these contraventions all arose from the same conduct and should give rise to the imposition of a single penalty, though the Court has made separate declarations of contravention in the Liability Judgment;
(b)Sloane’s contraventions of ss 340, 343 and 417 at the Ultimo site; such that these contraventions all arose from the same conduct and should give rise to the imposition of a single penalty, though the Court has made separate declarations of contravention in the Liability Judgment;
(c)the CFMMEU’s contraventions of s 50 at the Ultimo site and Erskineville site such that these contraventions all arose from the same conduct and should give rise to the imposition of a single penalty, though the Court has made separate declarations of contravention in the Liability Judgment;
(d)the CFMMEU’s contraventions of ss 340 and 343 at the Erskineville site such that these contraventions all arose from the same conduct and should give rise to the imposition of a single penalty, though the Court has made separate declarations of contravention in the Liability Judgment; and
(e)Collier’s contraventions of ss 340 and 343 at the Erskineville site such that these contraventions all arose from the same conduct and should give rise to the imposition of a single penalty, though the Court has made separate declarations of contravention in the Liability Judgment.
6.12The Applicant does not accept that s 556 operates in respect of Sloane’s contraventions of s 500 at the Ultimo site and Hornsby sites. These contraventions rely on separate and distinct conduct at each site.
Section 556 is concerned with “particular conduct” which is liable to attract more than one penalty because it contravenes more than one Federal statutory provision. In addresses, reference was made to the decision of the Full Court of the Federal Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201 in which s.556’s application and operation was considered. The parties agreed that, in keeping with the approach adopted in that case, the Court should complete the process of penalty setting, in the sense of identifying the pecuniary penalty appropriate to particular conduct, allocate that pecuniary penalty to one of the provisions proscribing that conduct on pain of a pecuniary penalty, and then apply s.556 to any other provisions which also prescribe a pecuniary penalty for that conduct.
Their Honours held (at [14]) that when a pecuniary penalty is imposed for a contravention, each of the acts or omissions involved in the contravention will be the subject of that pecuniary penalty. However, one of those acts or omissions (“particular conduct”) may, on its own, contravene a different provision of the FW Act. If so, s.556 will be engaged in respect of that particular conduct so the contravener is not penalised twice for it. For s.556 to be engaged, it is not necessary that the conduct making up the contraventions of the two provisions be wholly the same.
Course of conduct
There was no course of conduct in this case which would attract a single or “concurrent” penalty. The relevant conduct, whether at Ultimo, Erskineville or Hornsby, was limited to one morning and involved no repetitious conduct of the sort which could amount to a single transaction or course of particular conduct over a period of time.
Grouping
I agree with the Commissioner that the breaches at Ultimo of ss.340(1), 343 and 417(1) arose out of the same particular conduct for which Mr Sloane and the CFMMEU are both liable. Mr Sloane attended the Ultimo site and told the Reds Global crane crews there that they would not be working because that company had foreshadowed the possibility that Mr Cambourn would be dismissed. To Reds Global he purported to be concerned with training and safety issues. Mr Sloane took this action, which involved the organising of industrial action, with the intention of coercing Reds Global into acting differently towards Mr Cambourn. That conduct, in attending the Ultimo site and inducing the Reds Global employees to not work, amounted to contraventions of ss.340(1), 343 and 417(1) of the FW Act. It would be appropriate to group those contraventions together so that the same contravening conduct is not punished more than once.
Mr Sloane’s contravention of s.500 of the FW Act at the Ultimo site should also be grouped with those contraventions because it arose out of the conduct which contravened ss.340(1), 343 and 417(1) of the FW Act in the sense that his insistence that the Reds Global crane crews not start work, based on spurious training and safety concerns, not only contravened those three provisions but also amounted to hindrance and obstruction contrary to s.500 of the FW Act. In addresses the Commissioner acknowledged that his statement of claim had alleged that the conduct in question breached not only ss.340(1), 343 and 417(1) of the FW Act but also s.500, describing it as “the gravamen” of the s.500 contravention.
Considerations similar to those discussed in connection with Mr Sloane’s conduct at the Ultimo site apply to Mr Collier’s conduct at the Erskineville site that contravened ss.340(1) and 343 of the FW Act and to his and the CFMMEU’s liability for that conduct. The conduct in question was described and discussed in the First Judgment at [178]-[182] and [263]-[295].
However, different considerations apply to the other contraventions.
The two contraventions of s.50 of the FW Act arose out the CFMMEU’s failure to engage the dispute resolution procedure found in the Reds Global (NSW) Pty Ltd / CFMEU Collective Agreement 2012/2016 (“Enterprise Agreement”). The existence of an industrial dispute, in this case the CFMMEU’s disagreement with Reds Global over its potential treatment of Mr Cambourn, was a matter distinct from the particular conduct which that disagreement provoked, in this case Mr Sloane’s conduct at the Ultimo site and Mr Collier’s conduct at the Erskineville site. The contraventions of ss.340(1), 343 and 417(1) of the FW Act were committed by conduct which differed from the conduct which contravened s.50 of the Act which was, in fact, an omission. It would therefore not be appropriate to group the three former contraventions with the latter contravention for the purpose of penalty setting. Setting separate penalties would not see the CFMMEU penalised twice for the same conduct.
However, the CFMMEU’s two contraventions of s.50 of the FW Act should themselves be grouped together. They were, in substance, the same contravention in that the only dispute the CFMMEU had with Reds Global was its potential treatment of Mr Cambourn. It was that dispute which should have been submitted to the Enterprise Agreement’s dispute resolution procedure. The fact that conduct contravening other provisions of the FW Act was engaged in at two separate sites, Ultimo and Erskineville, does not alter that.
Mr Sloane’s conduct at the Hornsby site in contravention of s.500 of the FW Act was discrete and not part of his conduct at the Ultimo site, or his contraventions there of ss.340(1), 343, 417(1) and 500 of the FW Act, albeit it was somewhat repetitious in nature. Importantly, the relevant conduct at Ultimo was an insistence that the Reds Global crane crews not start work until the alleged training and safety issues were addressed whereas the relevant conduct at Hornsby, where work was already suspended because of rain, was claiming without a proper basis that it was unsafe for the Reds Global cranes to work until issues concerning manual handling training and the availability of Gotcha Kits were resolved.
Section 556 of the FW Act
I have found that the respondents’ contraventions should be grouped as follows:
CFMMEU
Mr Sloane
Mr Collier
Ultimo site
ss..340(1), 343, 417(1)
ss.340(1), 343, 417(1), 500
N/A
Erskineville site
ss.340(1), 343
N/A
ss.340(1), 343
Hornsby site
N/A
N/A
N/A
To these should be added the CFMMEU’s contraventions of s.50 of the FW Act at the Ultimo site and at the Erskineville site, grouped together, and Mr Sloane’s contravention of s.500 at the Hornsby site.
The wording of s.556 makes it plain that it is contravening conduct which attracts double jeopardy protection. Because the above grouping of the respondents’ respective contraventions reflects the fact that each group represents one occasion of contravening conduct, or “particular conduct” in the words of s.556, only one penalty should be imposed for each of those groups of contraventions, whether under the grouping principle or s.556. For the purposes of s.556, as the same maximum penalty applies to a contravention of any of the provisions in question, the selection of one as the vehicle by which a penalty is to be imposed and the putting to one side of the others for reasons of double civil jeopardy, requires no particular consideration or effort in selection. Each one of those relevant civil remedy provisions is as effective as any other.
I therefore conclude that penalties should be imposed on the respondents under the following civil remedy provisions:
CFMMEU
Mr Sloane
Mr Collier
Ultimo site
ss.50 and 340(1)
s.340(1)
N/A
Erskineville site
s.340(1)
N/A
s.340(1)
Hornsby site
N/A
s.500
N/A
Maximum penalties
$153,000
$20,400
$10,200
Whether there had been similar previous conduct by the respondent
The CFMMEU is a notorious recidivistic contravener of industrial legislation and was a recidivist prior to the events the subject of this proceeding. Details of such conduct was set out in table form in one of the “exhibits” to the affidavit of Chris Bell sworn 13 September 2019 and read in this proceeding.
Both Mr Sloane and Mr Collier have also been found to have contravened industrial legislation on other occasions although in Mr Sloane’s case that conduct post-dated the events considered in this proceeding and in Mr Collier’s case it predominantly did.
The size and statutory status of the organization involved
The size and statutory status of the organisation is a relevant factor in the assessment of an appropriate penalty. This is because:
… generally, a failure to comply with an injunction or an undertaking which binds a large and powerful entity will be more likely to have an adverse impact on the public interest in the effective administration of justice than will a similar contravention by an individual engaged in private litigation. Moreover, an organisation which is accorded a favourable status under a legislative regime bears broader responsibility than does a private individual: statutory recognition and advantage carry with them responsibility to other participants in the industrial relations systems and to the wider community. That responsibility requires adherence to the rule of law and to dispute resolution procedures prescribed by legislation and enterprise agreements.
(Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226 at [30])
The CFMMEU has statutory status in the industrial relations system as the representative of its members and enjoys certain rights as a consequence, as do its officers. The conduct seen in this case amounted to abuse and misuse of that status and of some of those rights.
This occurred notwithstanding that the CFMMEU has significant assets and, as the evidence in the contravention hearing stage of the case showed, employed at least one legal officer. In relation to the resources available to the union, CFMMEU financial reports annexed to Mr Bell’s affidavit relevantly disclosed the following:
a)the Construction and General Division of the NSW Divisional Branch of the CFMMEU received over $15 million in membership subscriptions and levies in the year ended 31 March 2019 and more than $11 million in the year ended 31 March 2018;
b)as at 31 March 2019 the Construction and General Division of the NSW Divisional Branch of the CFMMEU had net assets of $2,994,522; and
c)as at 31 March 2018 the National Office of the Construction and General Division of the CFMMEU had net assets of $5,405,615.
There is no doubt that the CFMMEU, and most relevantly its Construction and General Division, had the resources to be aware of the relevant statutory provisions, their operation and application. It also has the means to pay such penalties as may be imposed in this case.
Whether or not the breaches were deliberate
I have found that the breaches were deliberate.
Whether the party committing the breach has exhibited contrition
None of the respondents has demonstrated any contrition or regret at the disruption which their conduct caused.
Whether the party committing the breach co-operated with the enforcement authorities
Similarly, the respondents did not co-operate with the regulator, preferring to mount a full defence which, it has been found, lacked a proper foundation.
The need for specific and general deterrence
As noted by the Commissioner in his submissions, the primary purpose of a civil penalty regime is to ensure compliance with the relevant legislation by deterring future contraventions. That being so, questions of deterrence are of particular significance in the setting of the penalties currently under consideration.
These were serious contraventions. Although their effect was limited, they were, at their heart, a form of extortion which was committed without regard to the procedure set out in the Enterprise Agreement to deal with situations such as those which confronted Mr Cambourn. The absence of any form of contrition, and the maintenance of a defence which was signally lacking in merit, suggest that the respondents, particularly the CFMMEU and Mr Sloane, did not really take this proceeding or the contraventions which underlie it seriously.
I note the parties’ agreement that Mr Collier is no longer an official or employee of the CFMMEU and so questions of specific deterrence are not as important in his case as in the cases of the CFMMEU and Mr Sloane. Nonetheless, as the Commissioner submitted, the conduct in issue was flagrant and penalties which are appropriate to the contraventions should be imposed to discourage the CFMMEU and Mr Sloane from repeating, and others from emulating, that conduct.
The Commissioner referred to Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 where Snaden J held at [83] that regard may properly be had to a respondent’s history of contravening conduct when assessing the nature, character and seriousness of a particular contravention. His Honour said:
… To assess the gravity of an instant offence by reference to a respondent’s history of similar offending is not, by itself, to impose a fresh penalty for past offences. Nor does it, without more, involve or lead to the shaping of a penalty that is relevantly disproportionate. It merely informs what is proportionate; that is to say, how serious or grave the instant contravention is. … (at [82])
The respondents contended that his Honour’s statement did not reflect the state of the law, referring in that regard to Auimatagi v Australian Building and Construction Commissioner (2018) 285 IR 250 where the Full Court of the Federal Court said:
… It is a fundamental principle, at the core of the judicial power to impose a penalty, that the imposition is for the contravention in question. Prior contraventions, even so many and often so serious as the Union may have engaged in in the past, is a factor which may be taken into account in determining the appropriate quantum for the contravention; it cannot be taken to lead to a penalty that is disproportionate to the gravity of the instant contravention.
(at 288 [176])They argued that although past conduct is relevant to questions of deterrence and in relation to the setting of the penalty, it is not relevant to determination of the objective seriousness of a contravention.
The respondents also referred to Parker v Australian Building and Construction Commissioner (2019) 286 IR 116 where a differently constituted Full Court said:
… a case is not in the worst category merely by reason that the contravener has a history of prior contraventions, although that history may assist in the proper characterisation of the instant contravention. Considerable caution may be required to avoid blurring this distinction. This is especially so when, as in this case, past contraventions are many in number, extend over a protracted period of time and the legislature has not seen fit to provide greater penalties for second and subsequent contraventions. (at 226 [342])
Their Honours went on to say:
… while the role of past conduct informs the need for deterrence, that cannot be used to change the character of the instant contravention. … (at 510 [348])
Finally, the respondents relied on the comments of Bromberg J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859. His Honour referred to ABCC v Pattinson and said:
I respectfully disagree with the conclusion of Snaden J in Pattinson (at [63] and following) that the observations in Parker do not “[represent] the law as it presently stands”. The Full Court in Parker relied on and applied the two principles enumerated by Mason CJ, Brennan, Dawson and Toohey JJ in Veen v the Queen (No 2) (1988) 164 CLR 465 at 477-478 that:
·the antecedent criminal history of an offender “cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”; and
·“the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed”.
There can be no doubt that those principles state the law and are binding upon a single judge of this Court. As for the first of those principles, I understand the analysis in Parker to be emphasising that the penalty imposed must be proportionate to the gravity of the instant offence rather than proportionate to the gravity of the contravener’s history of offending. In my respectful view, an approach to proportionality focused upon the gravity of the contravener’s offending rather than the gravity of the instant contravention invites error. (at [19]-[20])
His Honour’s judgment is the most recent relevant statement of the law to which the Court was taken and, with respect, I will follow it.
Contrary to the respondents’ submissions regarding the objective seriousness of the contraventions the subject of this proceeding, however, I consider the contraventions to be at the mid to high end of the range of potential penalties, while not justifying the maximum penalty. As noted already, the contraventions were a form of extortion and it cannot be doubted that they were a discrete campaign. Moreover, as found in the First Judgment, the inconvenience Mr Sloane caused to Reds Global on 24 March 2014 was based on a contrivance. Those are serious matters. The fact that losses consequential upon the conduct may not have been great, which can only be a speculation in this case, cannot alter that.
Having determined that to be the penalty range appropriate to the contraventions I consider that, regard being had to the CFMMEU’s recidivism, penalties at the top of that range should be imposed on the union to mark the Court’s disapproval of its conduct and to attempt to discourage it and others from repeating or copying it.
Mr Sloane does not represent such an extreme case and, while considerations of specific deterrence will also form an element of the penalties to be imposed on him, they will not be as significant an element as in the CFMMEU’s case. As for Mr Collier, as he is no longer in the role he previously held, considerations of specific deterrence will play a still smaller role in the penalty to be imposed.
PENALTIES
In determining the penalties to be imposed I have had regard to the principle of proportionality, the purposes of sentencing and the task of instinctive synthesis of various factors into a single result which were discussed by Barker J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) (2010) 199 IR 373 at 376 [4]-[7].
I consider the appropriate penalties to be:
a)CFMMEU:
Ultimo site
s.50
$45,000
Ultimo site
s.340(1)
$45,000
Erskineville site
s.340(1)
$45,000
Total penalty
$135,000
b)Mr Sloane:
Ultimo site
s.340(1)
$7,600
Hornsby site
s.500
$7,600
Total penalty
$15,200
c)Mr Collier:
Erskineville site
s.340(1)
$6,700
I believe that those penalties are just and appropriate.
The penalties are to be paid to the Commonwealth within twenty-eight days.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 12 December 2019
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