FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION & ORS (No.7) | [2020] FCCA 351 |
| Catchwords: INDUSTRIAL LAW – Assessment of pecuniary penalties for admitted contraventions of s.343(1) of the Fair Work Act 2009 (Cth) – orders for the payment of pecuniary penalties made. |
| Legislation: Crimes Act 1914 (Cth), s.4AA |
| Applicant: | AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
| First Respondent: | CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION |
| Second Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) |
| Third Respondent: | BRIAN PARKER |
| Fourth Respondent: | RITA MALLIA |
| Fifth Respondent: | MICHAEL GREENFIELD |
| Sixth Respondent: | DARREN GREENFIELD |
| Seventh Respondent: | LUKE COLLIER |
| Eighth Respondent: | TONY SLOANE |
| Ninth Respondent: | ROBERT KERA |
| Tenth Respondent: | SALVATORE MANNA |
| Thirteenth Respondent: | FRANCIS O’GRADY |
| Fourteenth Respondent: | MARTIN WYER |
| File Number: | SYG 332 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 26 March 2019 |
| Date of Last Submission: | 26 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr M White SC and Mr D Mahendra |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the First, Third, Fifth, Seventh, Ninth and Tenth Respondents: | Mr A Cheshire SC |
| Solicitors for the First, Third, Fifth, Seventh, Ninth and Tenth Respondents: | Taylor & Scott Lawyers |
| No appearance by or on behalf of the Second, Fourth, Sixth to Eighth, and Ninth to Fourteenth Respondents |
THE COURT DECLARES THAT
The Third Respondent, Brian Parker, contravened:
(a)s.343 of the Fair Work Act 2009 (Cth) (FW Act) on 14 February 2015, at the Barangaroo site in Hickson Road, Sydney, by organising or taking action against De Martin & Gasparini Pty Limited (DMG), in that he said to a subcontractor, Nicola Titone of Prestons Contractors Pty Ltd, who said that he could not arrange for workers not to work at DMG’s sites: “We don’t want to get on the wrong foot of each other” and engaged in that conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
(b)s.343 of the FW Act on 16 February 2015, at the Barangaroo Site in Hickson Road, Sydney, by organising or taking action against DMG, in that he:
(i)congregated outside a vehicle entrance to the Barangaroo site together with other persons, including other officials of the First Respondent, in a way that blocked vehicle access to that entry;
(ii)sought to negotiate an enterprise agreement on terms demanded by the First Respondent with DMG’s General Manager, Louie Mazzarolo, but refused the request made by Mr Mazzarolo that he and the group of other persons blocking a vehicle entry into the Barangaroo site move out of the way;
(iii)told Mr Mazzarolo that the prevention of DMG’s performance of work would cause more than economic harm;
and engaged in that conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
(c)s.343 of the FW Act on 17 February 2015, at the Barangaroo Site in Hickson Road, Sydney, by organising or taking action against DMG, in that he:
(i)told Mr Mazzarolo that he was only prepared to meet with Mr Mazzarolo when subcontractors were not working at the Barangaroo Site;
(ii)told Mr Mazzarolo that he would only be agreeing to an enterprise agreement on the terms demanded by the First Respondent and that “we are not mucking around anymore” and “we will keep fighting until the end”;
and engaged in that conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent.
The Fifth Respondent, Michael Greenfield, contravened:
(a)s.343 of the FW Act on 16 February 2015, at the Barangaroo site in Hickson Road, Sydney, by taking action against DMG, in that he was a part of the group of persons, including other officials of the First Respondent, who had congregated outside a vehicle entrance to the Barangaroo Site in a way that blocked vehicle access to that entry and engaged in that conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
(b)s.343 of the FW Act on 17 February 2015, at the Barangaroo site in Hickson Road, Sydney, by taking action against DMG, in that he:
(i)attended with the Tenth Respondent outside an entry to the Barangaroo Site, approached employees of a subcontractor, Commercial Concrete Pty Ltd (Commercial), and accused them of being “scabs”, and told them that DMG was seeking to reduce DMG employees’ wages and deprive them of penalty rates;
(ii)told Mr Mazzarolo to sign the enterprise agreement demanded by the First Respondent and “we will be gone”;
and engaged in that conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent.
The Seventh Respondent, Luke Collier, contravened s.343 of the FW Act on 16 February 2015, at the Barangaroo site in Hickson Road, Sydney, by taking action against DMG, in that he:
(a)together with the Third, Fifth and Ninth Respondents and other persons he was a part of the group of persons, including other officials of the First Respondent, who had congregated outside a vehicle entrance to the Barangaroo Site in a way that blocked vehicle access to that entry;
(b)called out to a group that was blocking a vehicle entrance to the Barangaroo site and called out “Stand on the road guys. There’s not enough police to take us all away” and shouted “If you have any mates get them down here. Breakfast is on Sparkles [referring to the Third Respondent]”;
(c)together with the Ninth and Tenth Respondents and other persons congregated outside a vehicle entrance to the Barangaroo site, cheered, linked arms and moved towards a truck that was seeking to enter the site to block its entry whilst some members of the group shouted “fucking scabs”, “filthy dogs”, “fuck off”, “CFMEU here to stay”, “CFMEU”, and was in the front rank of the group that was blocking entry;
and engaged in that conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent.
The Ninth Respondent, Robert Kera, contravened:
(a)s.343 of the FW Act on 14 February 2015, at the Barangaroo site in Hickson Road, Sydney, by taking action against DMG, in that he
(i)congregated outside a vehicle entrance to the Barangaroo site together with other persons, including other officials of the First Respondent, in a way that blocked vehicle access to that entry;
(ii)when Mr Mazzarolo was arranging the induction of Commercial’s employees, accused those employees of doing the work of striking DMG employees and told them they did not want to be labelled as scab labour;
(iii)having said that there was non-compliance with superannuation payment paperwork, said to Mr Mazzarolo, “…you’re not pouring”;
and engaged in that conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
(b)s.343 of the FW Act on 16 February 2015, at the Barangaroo site in Hickson Road, Sydney, by taking action against DMG, in that he:
(i)congregated outside a vehicle entrance to the Barangaroo site together with other persons, including other officials of the First Respondent, in a way that blocked vehicle access to that entry;
(ii)did not respond to a request made by Mr Blanchard, Operations Manager of Lend Lease Project Management & Construction (Australia) Pty Limited, that the group that had congregated outside the vehicle entrance move to allow a non-DMG truck to enter through that entrance;
(iii)together with the Seventh and Tenth Respondents and other persons congregated outside that vehicle entrance to the Barangaroo site, cheered, linked arms and moved towards a truck that was seeking to enter the site to block its entry whilst some members of the group shouted “fucking scabs”, “filthy dogs”, “fuck off”, “CFMEU here to stay” and “CFMEU”;
and engaged in that conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
(c)s.343 of the FW Act on 17 February 2015, at the Barangaroo site in Hickson Road, Sydney, by taking action against DMG, in that he congregated outside a vehicle entrance to the Barangaroo site together with striking DMG employees, in a way that delayed vehicle access to that entry and engaged in that conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent.
The Tenth Respondent, Salvatore Manna, contravened:
(a)s.343 of the FW Act on 14 February 2015, at the Barangaroo site in Hickson Road, Sydney, by taking action against DMG, in that he:
(i)telephoned Mr Ciaschetti, the Operations Manager of Commercial, and told him to ensure that Commercial’s employees did not carry out work for DMG at Barangaroo on that day, that was not illegal, and said “I have looked after you in the past but you are going against me – you’ll see”;
(ii)congregated outside a vehicle entrance to the Barangaroo site together with other persons, including other officials of the First Respondent, in a way that blocked vehicle access to that entry
and engaged in that conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
(b)s.343 of the FW Act on 16 February 2015, at the Barangaroo site in Hickson Road, Sydney, by taking action against DMG, in that he:
(i)congregated outside a vehicle entrance to the Barangaroo site together with other persons, including other officials of the First Respondent, in a way that blocked vehicle access to that entry;
(ii)together with the Seventh and Ninth Respondents and other persons congregated outside a vehicle entrance to the Barangaroo site, cheered, linked arms and moved towards a truck that was seeking to enter the site to block its entry whilst some members of the group shouted “fucking scabs”, “filthy dogs”, “fuck off”, “CFMEU here to stay”, “CFMEU”, and was in the front rank of the group that was blocking entry;
and engaged in that conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
(c)s.343 of the FW Act on 17 February 2015, at the Barangaroo site in Hickson Road, Sydney, by taking action against DMG, in that he:
(i)together with the Fifth Respondent, attended outside an entry to the Barangaroo site, approached employees of a subcontractor, Commercial whilst the Fifth Respondent accused them of being “scabs” and told them that DMG was seeking to reduce DMG employees’ wages and deprive them of penalty rates;
(ii)having raised safety compliance issues concerning the pump supplied by Zanet Pumping, he directed Mr Zanet to take the truck off the Barangaroo site in response to which Mr Zanet did so;
and engaged in that conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent.
In respect of each of the declarations at 1 to 5 above, the conduct, actions and state of mind of each of the Third, Fifth, Seventh, Ninth and Tenth Respondents was by reason of s.363 and s.793 of the FW Act, the conduct, actions and state of mind of the First Respondent, the Construction, Forestry, Maritime, Mining, and Energy Union (CFMMEU).
The CFMMEU contravened:
Parker contraventions
(a)s.343 of the FW Act on 14 February 2015 by the conduct of the Third Respondent, Brian Parker, in organising or taking action against DMG, with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
(b)s.343 of the FW Act on 16 February 2015 by the conduct of the Third Respondent, Brian Parker, in organising or taking action against DMG, with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
(c)s.343 of the FW Act on 17 February 2015 by the conduct of the Third Respondent, Brian Parker, in organising or taking action against DMG, with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
M Greenfield contraventions
(d)s.343 of the FW Act on 16 February 2015 by the conduct of the Fifth Respondent, Michael Greenfield, in taking action against DMG, with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
(e)s.343 of the FW Act on 17 February 2015 by the conduct of the Fifth Respondent, Michael Greenfield, in taking action against DMG, with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
Collier contraventions
(f)s.343 of the FW Act on 16 February 2015 by the conduct of the Seventh Respondent, Luke Collier, in taking action against DMG, with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
Kera contraventions
(g)s.343 of the FW Act on 14 February 2015 by the conduct of the Ninth Respondent, Robert Kera, in taking action against DMG, with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
(h)s.343 of the FW Act on 16 February 2015 by the conduct of the Ninth Respondent, Robert Kera, in taking action against DMG, with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
(i)s.343 of the FW Act on 17 February 2015 by the conduct of the Ninth Respondent, Robert Kera, in taking action against DMG, with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
Manna contraventions
(j)s.343 of the FW Act on 14 February 2015 by the conduct of the Tenth Respondent, Salvatore Manna, in taking action against DMG, with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
(k)s.343 of the FW Act on 16 February 2015 by the conduct of the Tenth Respondent, Salvatore Manna, in taking action against DMG, with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent;
(l)s.343 of the FW Act on 17 February 2015 by the conduct of the Tenth Respondent, Salvatore Manna, in taking action against DMG, with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely to agree to a new enterprise agreement on terms proposed by the First Respondent.
THE COURT ORDERS THAT
The CFMMEU pay pecuniary penalties in the sum of $404,500 for the contraventions identified in declaration 7.
The CFMMEU pay the pecuniary penalties referred to in paragraph 8 to the Commonwealth of Australia within 28 days.
The third respondent, Mr Brian Parker, pay pecuniary penalties in the sum of $17,000 for the contraventions identified in declaration 1.
The third respondent, Mr Brian Parker, pay the pecuniary penalties referred to in paragraph 10 to the Commonwealth of Australia within 28 days.
The fifth respondent, Mr Michael Greenfield, pay pecuniary penalties in the sum of $13,500 for the contraventions identified in declaration 2.
The fifth respondent, Mr Michael Greenfield, pay the pecuniary penalties referred to in paragraph 12 to the Commonwealth of Australia within 28 days.
The Seventh Respondent, Mr Luke Collier, pay a pecuniary penalty of $7,500 for the contravention identified in declaration 3.
The Seventh Respondent, Mr Luke Collier, pay the pecuniary penalty referred to in paragraph 14 to the Commonwealth of Australia within 28 days.
The Ninth Respondent, Mr Robert Kera, pay pecuniary penalties in the sum of $21,500 for the contraventions identified in declaration 4.
The Ninth Respondent, Mr Robert Kera, pay the pecuniary penalties referred to in paragraph 16 to the Commonwealth of Australia within 28 days.
The Tenth Respondent, Mr Salvatore Manna, pay pecuniary penalties in the sum of $22,500 for the contraventions identified in declaration 5.
The Tenth Respondent, Mr Salvatore Manna, pay the pecuniary penalties referred to in paragraph 18 to the Commonwealth of Australia within 28 days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 332 of 2016
| AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
Applicant
And
| CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION |
First Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) |
Second Respondent
| BRIAN PARKER |
Third Respondent
| RITA MALLIA |
Fourth Respondent
| MICHAEL GREENFIELD |
Fifth Respondent
| DARREN GREENFIELD |
Sixth Respondent
| LUKE COLLIER |
Seventh Respondent
| TONY SLOANE |
Eighth Respondent
| ROBERT KERA |
Ninth Respondent
| SALVATORE MANNA |
Tenth Respondent
| FRANCIS O’GRADY |
Thirteenth Respondent
| MARTIN WYER |
Fourteenth Respondent
REASONS FOR JUDGMENT
Introduction
On 27 November 2018 I made orders (Orders) in which I noted the parties agreed, on the basis of a statement of agreed facts that was to be filed, that the first, third, fifth, seventh, ninth, and tenth respondents (relevant respondents) admitted they each contravened s.343(1) of the Fair Work Act 2009 (Cth) (FW Act). The agreed contraventions are identified in the form of the draft declarations I also noted in the Orders (Draft Declarations).
In these reasons for judgment I assess the pecuniary penalties I should order the relevant respondents pay for their admitted contraventions of s.343(1) of the FW Act. Before I do so it would be convenient if I, first, identify the elements of s.343(1) of the FW Act; second, set out the facts as agreed between the parties; and, third, consider whether those facts establish the contraventions identified in the Draft Declarations.
Section 343 of the FW Act
Section 343 of the FW Act provides:[1]
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b)exercise, or propose to exercise, a workplace right in a particular way.
[1] Paragraphs 3-11 repeat what I said in Director Of The Fair Work Building Industry Inspectorate v Construction, Forestry, Mining And Energy Union & Ors (No.2) [2016] FCCA 3322, at [28]-[36]
(2)Subsection (1) does not apply to protected industrial action.
The expression “workplace right” is defined in s.341(1) of the FW Act as follows:
A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
The expression “protected industrial action” is defined in s.408 of the FW Act to mean, among other things, an “employee claim action for the agreement”. That is a reference to the matters set out in s.409 of the FW Act. That section, in the circumstances it identifies, authorises industrial action by employees that “is organised or engaged in for the purpose of supporting or advancing claims in relation to [a proposed enterprise] agreement that are only about, or are reasonably believed to only be about, permitted matters…”. Under s.341(2)(e) of the FW Act a “process or proceedings under a workplace law or workplace instrument” includes “making, varying or terminating an enterprise agreement”.
Section 343(1) of the FW Act must be read with s.361(1), which provides:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
And subsection 361(1) must, in turn, be read with s.360 of the FW Act:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
The expression “intent to coerce” has been interpreted to consist of two elements:[2]
First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Secondly, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.
[2] Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2001] FCA 456; (2001) 109 FCR 378, at [41] (Merkel J) quoted with approval in State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172, at [71]
Although a contravention requires proof that the alleged contravener intended to exert pressure on another, it is not necessary that the contravener have knowledge that his or her conduct is unlawful, illegitimate, or unconscionable. All that need be shown is that the action the person has taken or has threatened to take is conduct the law characterises as unlawful, illegitimate, or unconscionable.[3]
[3] Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; (2016) 258 IR 396, at [176] (Buchanan J, with whom Siopis J agreed)
A person, therefore, will contravene s.343(1) of the FW Act if the following matters occur:
a)the person has organised or taken, or threatened to organise or take, action against another person (relevant conduct); and
b)the person has engaged in the conduct with intent (relevant intent) to coerce the other person, or a third person:
i)to exercise or not exercise; or propose to exercise or not to exercise, a workplace right (such as making an enterprise agreement); or
ii)to exercise, or propose to exercise a workplace right in a particular way.
The person who is alleged to have taken, and is found to have taken, relevant conduct with the relevant intent will, because of s.361 of the FW Act, be taken to have engaged in the relevant conduct with the relevant intent unless the person proves otherwise.
Agreed facts
I begin by identifying the parties.
Parties
First there is the applicant (ABCC) who, by the operation of a number of statutory provisions it is unnecessary to set out, is authorised to bring this proceeding.[4]
[4] Statement of Agreed Facts and Admissions (SAFA), [3]
Second, there is the first respondent (CFMMEU), which:[5]
a)is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act) and, for that reason, and s.27 of the FWRO Act, is a body corporate capable of being sued;
b)is an association of employees with eligibility rules that allow membership by persons whose employment consists of, or includes, building work;
c)is a building industry participant within the meaning of s.4(1) of the Fair Work (Building Industry) Act 2012 (Cth) (FWBI Act); and
d)was the subject of an amalgamation approved under the FW Act.
[5] SAFA, [4]. For ease of expression I will speak in the present tense, although it is to be understood that, unless otherwise stated or the context suggests otherwise, the facts of which I speak in the present tense are to be taken to have existed at all relevant times.
Third, there is the third respondent, Mr Parker, the fifth respondent, Mr M Greenfield, the seventh respondent, Mr Collier, the ninth respondent, Mr Kera, and the tenth respondent, Mr Manna. At the time of the admitted contraventions Mr Parker was the branch secretary of the New South Wales Division of the CFMMEU, Mr Kera was the branch assistant secretary of the Construction and General New South Wales Divisional Branch of the CFMMEU, and Mr M Greenfield, Mr Collier, and Mr Manna were each organisers of the CFMMEU. In addition, each of Mr Parker, Mr M Greenfield, Mr Collier, Mr Kera, and Mr Manna was an official of the CFMMEU within the meaning of s.12 of the FW Act; an officer and agent of the CFMMEU within the meaning of s.363(1)(b) of the FW Act; an employee of the CFMMEU; a permit holder within the meaning of s.12 of the FW Act; and a building industry participant within the meaning of s.4(1) of the FWBI Act.[6]
[6] SAFA, [6]-[9]
DMG Enterprise Agreement
In around 2011 the Fair Work Commission, acting under s.186 of the FW Act, approved an enterprise agreement (2011-2014 Enterprise Agreement) between De Martin & Gasparini Pty Limited (DMG), its employees, and the Construction Forestry, Mining and Energy Union, New South Wales Divisional Branch (CFMEU NSW). The 2011-2014 Enterprise Agreement had a nominal expiry date of 30 September 2014.[7] DMG was a provider of concrete placement services for commercial and high-rise developments, an employer of employees whose employment consisted of, or included, “building work” within the meaning of s.5 of the FWBI Act (DMG employees), and a building industry participant for the purposes of s.4 of the FWBI Act.[8]
[7] SAFA, [19]
[8] SAFA, [10]
Negotiation of new enterprise agreement
On 15 May 2014 Mr Parker provided to DMG a copy of a proposed enterprise agreement to be made by the DMG employees; and on 2 July 2014 Mr Parker wrote to DMG stating that CFMEU NSW wanted to commence negotiations with DMG on an enterprise agreement that would cover the DMG employees.[9]
[9] SAFA, [20]
In August 2014 DMG informed CFMMEU it did not agree to the proposed enterprise agreement CFMMEU had submitted to it, and DMG provided to the CFMMEU its preferred draft enterprise agreement.[10] Later in August 2014 Mr Parker informed DMG the CFMMEU did not accept DMG’s preferred draft enterprise agreement.[11] DMG and the CFMMEU continued to disagree on the terms and conditions of a further enterprise agreement until 30 March 2015.[12]
[10] SAFA, [21]
[11] SAFA, [22]
[12] SAFA, [23]
On 9 February 2015 Mr Parker, on behalf of the CFMMEU, issued pursuant to s.414 of the FW Act a notice of intention to take protected industrial action on and from 13 February 2015.[13] In the morning of 13 February 2015 DMG employees met with officers of the CFMMEU in the Homebush yard of DMG where approximately 110 of DMG’s workforce of 130 employees resolved to go on an indefinite strike.[14]
[13] SAFA, [26]
[14] SAFA, [27]
On 13 February 2015, after the meeting at DMG’s Homebush yard, Mr Parker, Mr Kera, and other officers of the CFMMEU attended a rally of approximately 70 to 80 striking DMG employees outside the main entrance to the Barangaroo site at Hickson Road, Sydney (Barangaroo Site). Officers of the CFMMEU distributed to those present at the rally CFMMEU flags they had brought with them. Mr Parker addressed the rally, and he encouraged the striking DMG employees to return to the Barangaroo Site on Monday 16 February 2015.[15]
[15] SAFA, [31]
Barangaroo contract and subcontracts made in the execution of that contract
At the time the DMG employees resolved to go on strike, there was in force a Major Works Subcontract dated 20 February 2013 (Barangaroo Contract) DMG had entered into with Lend Lease Project Management & Construction (Australia) Pty Limited (Lend Lease). Under that contract DMG agreed to provide concrete placement services to Lend Lease at the Barangaroo Site.[16] The Barangaroo Site formed part of the Barangaroo South development, which was a 7.5-hectare site for the construction of commercial and residential buildings. Lend Lease was the head contractor of a contract to construct the buildings. The value of the head contract was $6 billion; and the Barangaroo South development employed approximately 2,400 workers.[17]
[16] SAFA, [10(e)]
[17] SAFA, [13]
During 13 to 17 February 2015 DMG engaged contractors to place concrete or to supply labour to pour concrete at the Barangaroo Site in fulfilment of contractual obligations it owed to Lend Lease.[18] In particular, DMG engaged the following contractors (Subcontractors) to carry out such work at the Barangaroo Site:[19]
a)Prestons Contracts Pty Limited (Prestons);
b)Commercial Concrete Pty Limited (Commercial);
c)Zanet Concrete Pumping Pty Limited (Zanet Pumping);
d)Solid Concrete Pumping (Solid Concrete); and
e)ZWF Pty Limited trading as ZC Group (ZC Group).
[18] SAFA, [14]
[19] SAFA, [15]
Pursuant to the contracts by which it engaged the Subcontractors, DMG required the Subcontractors to carry out the concrete placement work due to be performed by DMG at the Barangaroo Site on 14, 16, and 17 February 2015 as follows:[20]
a)on 14 February 2015: Zanet Pumping, Commercial, Prestons, and ZC Group;
b)on 16 February 2015: Zanet Pumping, Commercial, Prestons, and ZC Group; and
c)on 17 February 2015: Solid Concrete, Commercial, Prestons, and Zanet Pumping.
[20] SAFA, [29]
The performance by the Subcontractors of the concrete placement work required their trucks, including trucks carrying concrete pumps, to enter the Barangaroo Site, and their employees to enter the Barangaroo Site.[21]
[21] SAFA, [30]
Events of 14 February 2015
From about 5:30 am on 14 February 2015, Mr Parker, Mr Kera, Mr Manna, and other officials of the CFMMEU attended the Barangaroo Site. They congregated outside the main entrance in Hickson Road and the Gate 2 vehicle entrance at Hickson Road. At approximately 7:00 am a group that had also congregated outside Gate 2 shouted “scab” and “traitor” to Mr Lennie Barbera, a DMG employee truck driver, when he was entering the Barangaroo Site; and the group struck the outside of Mr Barbera’s truck with their hands and with CFMMEU flags. This caused Mr Barbera to fear for his safety, and to attend hospital with chest pains.[22]
[22] SAFA, [35]
At approximately 6:00 am on 14 February 2015, when Mr Louie Mazzarolo, the general manager of DMG, was arranging for the induction onto the Barangaroo Site of Commercial employees, Mr Kera accused Commercial employees of doing the work of the striking DMG employees, and told them they did not want to be labelled scab labour. Other persons wearing CFMMEU branded clothing intercepted Commercial and Zanet Pumping employees as they left their inductions, and blocked, or attempted to block, their entry to the Barangaroo Site, and attempted to persuade them not to work.[23]
[23] SAFA, [36]
At approximately 7:15 am on 14 February 2015 Mr Manna telephoned Mr Serge Ciaschetti, the operations manager of Commercial, and told him to ensure that Commercial’s employees do not carry out work for DMG at Barangaroo on that day, asserting that it was not illegal for Commercial’s employees to refuse to work. Mr Manna said to Mr Ciaschetti: “I have looked after you in the past but you are going against me – you’ll see”.[24]
[24] SAFA, [32]
At approximately 7:30 am on 14 February 2015 Mr Parker telephoned Mr Nicola Titone, the manager of Prestons, and asked if Prestons had men working on DMG sites, and if he had forced them to work. Mr Parker told Mr Titone that he, Mr Parker, did not object to Prestons’ employees working on non-DMG sites. In response to Mr Titone stating he could not arrange that, Mr Parker said: “We don’t want to get on the wrong foot of each other”.[25]
[25] SAFA, [33]
During the morning of 14 February 2015 Mr Kera entered the Barangaroo Site with other officers of the CFMMEU and went to the R8 and R9 area. That area had been prepared for a scheduled concrete pour, but Lend Lease had cancelled the pour. Mr Kera reviewed the superannuation payments paperwork, and said that the payments for Prestons were not up to date. Mr Mazzarolo confirmed with his site supervisor that the paperwork for Zanet Pumping was up to date. He told Mr Kera that Mr Kera was making a mistake. Mr Kera responded: “[Y]ou’re not pouring”.[26]
[26] SAFA, [37]
DMG did not on 14 February 2015 carry out the scheduled concrete pours at the R8 and R9 area and Tower 1.
Events of 16 February 2015
From around 5:15 am on 16 February 2015 officers of the CFMMEU and striking DMG employees attended the Barangaroo Site. They congregated in a group of between 20 and 30 persons outside the vehicle entrance in Lime Street (Lime Street gate). Mr Parker authorised the CFMMEU officers and DMG employees to distribute a flyer outside the Barangaroo Site. The flyer included the following:[27]
[27] SAFA, [39]; annexure “A”
De Martin and Gasparini workers are striking to save shutdown weekends and decent rates and conditions, not only for themselves, but all of us. The workers have rejected a sub-standard non-union EBA that offers them at at [sic] least $50-$100 less a week in wages than the Union EBA. DMG is a subsidiary of anti-union giant Boral, which is also resisting the re-introduction of decent site allowances.
. . . .
De Martin and Gasparini workers, with the support of the CFMEU, have drawn a line in the sand.
CFMEU State Secretary Brian Parker says the EBA offer from DMG is an insult to its workers.
. . . .
De Martin and Gasparini workers sacrifice family time and personal time to meet the company’s deadlines.
It is outrageous Boral, De Martin and Gasparini and the Government would refuse them the benefit of a decent Union EBA, including guaranteed shutdown weekends which ensures they have quality time with their families, kids and communities. . . .
At approximately 5:30 am the group outside the Lime Street gate blocked the entry into the Barangaroo Site of a Zanet Pumping truck carrying a concrete pump, although Lend Lease had not yet opened the gate.[28] Mr Parker, Mr Kera, and Mr M Greenfield were present in the group by at least 6:05 am, and Mr Manna arrived at around 6:50 am. Mr Collier was present in the group by 7:06 am.[29]
[28] SAFA, [40]
[29] SAFA, [41]
At approximately 6:50 am Mr Parker asked Mr Mazzarolo when DMG was going to negotiate a new enterprise agreement. Mr Mazzarolo asked Mr Parker if he and the group blocking the Lime Street gate were going to move out of the way. Mr Parker refused. At approximately 7:00 am Senior Constable Smith, who, with Constable Douglas, had by then arrived at the Lime Street gate, asked Mr Parker to let the trucks into the Barangaroo Site. Mr Parker refused.[30] Mr Mazzarolo, in the presence of another CFMMEU officer, asked Mr Parker if he realised that the prevention of DMG’s work might cause it economic harm. Mr Parker replied: “We know. It’ll be more than economic harm”. Mr Mazzarolo asked what it would take to stop the blocking action. The other CFMMEU officer said that DMG had to negotiate an enterprise agreement.[31]
[30] SAFA. [43]
[31] SAFA, [45]
At approximately 7:30 am Inspector Glenn Jacobs of the New South Wales Police arrived at the Lime Street gate and asked who was the person organising the action. Mr Parker approached Inspector Jacobs. Inspector Jacobs asked Mr Parker if he could move the group off the road and onto the footpath where it was safer. Mr Parker said he could not speak for them, but he would talk to them. Mr Parker then addressed the group, which did not then move. During his discussion with Inspector Jacobs, Mr Parker said to him that if Inspector Jacobs called in other police, Mr Parker would call 200 to 300 workers from other sites to come to Barangaroo in support of the action.[32]
[32] SAFA, [46]
Mr Chris Blanchard, the operations manager for Lend Lease, asked Mr Kera to have the group allow a non-DMG truck to enter the site through the Lime Street gate. Mr Kera did not respond, and he did nothing to assist with the truck accessing the Barangaroo Site.[33]
[33] SAFA, [47]
At approximately 7:51 am a Zanet Pumping truck driver turned on the engine of the Zanet Pumping truck. When he did so Mr Collier called out to the group blocking the Lime Street gate: “Stand on the road guys. There’s not enough police to take us all away”. Mr Collier also shouted: “If you have any mates get them down here. Breakfast is on Sparkles”. “Sparkles” is a reference to Mr Parker.[34]
[34] SAFA, [48]
At approximately 8:30 am Inspector Jacob gave the group blocking the Lime Street gate a formal direction to move away from the entrance. The group ignored the direction.[35]
[35] SAFA, [49]
At approximately 8:40 am Mr Blanchard and Mr Mazzarolo directed the Zanet Pumping truck to attempt to enter the site, and had the Lime Street gate opened from inside. Mr Collier, Mr Manna, and Mr Kera, together with other members of the group blocking the access, cheered, linked arms, and moved towards the truck blocking its entry. Persons within the group shouted “fucking scabs”, “filthy dogs”, and “fuck off”. Mr Manna and Mr Collier were in the front rank of the group blocking the truck. Mr Blanchard directed the truck to reverse and drive to Gate H4 in Hickson Road. The group cheered, and persons shouted “CFMEU here to stay”, and “CFMEU, CFMEU, CFMEU!”.[36]
[36] SAFA, [50]
The Zanet Pumping truck attempted to enter the H4 gate at approximately 11:00 am, but it was blocked by a group of 15 to 20 DMG employees preventing it entry into the Barangaroo Site. By that time some of the group from the Lime Street gate had moved down Hickson Road to the H4 gate to assist in the further blockade of the Zanet Pumping truck, swelling the group at the H4 gate to between 20 to 30 people. The group stood on the roadway and blocked the Zanet Pumping truck, shouting at it to leave. Mr Blanchard decided it was too dangerous to attempt entry by the truck. About ten minutes after the truck drove away, Mr Collier and Mr Kera spoke to the truck driver.[37] Mr M Greenfield and Mr Kera were present outside the H4 gate by at least 12 noon.[38] The Zanet Pumping truck was eventually able to enter the Barangaroo Site through a different entrance sometime after 11:00 am. By that time there was not enough labour available to complete the pour in the R8 and R9 area, and, for that reason, the pour did not proceed.[39]
[37] SAFA, [51]
[38] SAFA, [53]
[39] SAFA, [52]
Other Subcontractor employees on the Barangaroo Site were reluctant to work on the scheduled pour for level 3, Tower 1, after they had received abuse from other workers on the site. At approximately 9:00 am they met with Mr Mazzarolo and Fair Work Building and Construction (FWBC) inspectors at a site shed. One Subcontractor employee expressed concern about repercussions if they worked that day. The employees agreed to work only when one of the FWBC inspectors advised that if they did not work, they would be committing their own offences. Twelve subcontractor employees who were scheduled to work that day either did not attend or left during the day.[40]
[40] SAFA, [54]
Events of 17 February 2015
On the morning of 17 February 2015 a group of 20 people, including one CFMMEU officer, other people wearing CFMEU NSW branded clothing and striking DMG employees, congregated outside the main Hickson Road entrance to the Barangaroo Site. Five or six of them handed out CFMEU NSW flyers authorised by Mr Parker. The flyers included the following (errors in original):[41]
De Martin & Gasparini, Boral and site management personnel are using intimidation tactics . . . . De Martin & Gasparini also sought to utilize strikebreakers and sub-standard pumping equipment to do De Martin’s worker’s work. . . .
Despite all of this, the De Martin & Gasparini workers and the CFMEU have stood their ground and continue to battle with Boral and their employer for decent conditions and wages. . . .
[41] SAFA, [55]; annexure “B”
At approximately 5:15 am Mr M Greenfield and Mr Manna attended outside the Lime Street gate and approached approximately 10 Subcontractor employees who were waiting to enter the Barangaroo Site to perform work. Mr M Greenfield accused Commercial employees of being “scabs”, and he told them DMG was attempting to short change the DMG employees, reduce their wages, and deprive them of penalty rates. Mr M Greenfield said to Mr Mazzarolo: “Talk to Sparkles, sign the agreement and we will be gone”. Sometime after this, five Subcontractor employees left.[42]
[42] SAFA, [56]
At approximately 5:54 am Mr M Greenfield approached and spoke to Mr Julio Henao, a driver of a Solid Concrete pump truck, who was parked in Lime Street waiting to enter the site to perform work. Shortly afterwards Mr Henao approached Mr Mazzarolo and said: “I am not hanging around here anymore. They are giving me shit already”. Mr Mazzarolo told Mr Henao he would not force him to stay. The Solid Concrete pump truck left the area.[43]
[43] SAFA, [57]
Due to the Subcontractor employees leaving, DMG did not have sufficient Subcontractor workers to carry out the scheduled concrete placement work for the day.[44]
[44] SAFA, [58]
At approximately 6:45 am Mr Kera and a group of striking DMG employees stood across the H4 entry gate at Barangaroo. One person in the group was carrying a CFMMEU flag. The group delayed each truck at the entrance between 6:45 am and 8:00 am while they inspected it and, on some occasions, spoke to the driver. Each truck was then allowed to enter the site.[45]
[45] SAFA, [59]
During the morning Mr Parker telephoned Mr Mazzarolo, and they arranged a meeting to discuss the new enterprise agreement. During their conversation Mr Parker said: “If you want to meet, I don’t want those subbies working while we are meeting”.[46]At approximately 6:30 am Mr Mazzarolo met with Mr Parker, Mr Manna, and Ms Rita Mallia, the State president of the Construction and General New South Wales Divisional Branch of the CFMMEU. Mr Parker refused to agree to the DMG employees meeting with Boral, and he said to Mr Mazzarolo: “We want the Union EBA. We are not mucking around anymore”. Mr Parker also said: “We want whatever it is that is in the union agreement. You carved up the battleground. We will keep fighting until the end. Don’t come here with half a pregnant agreement”.[47]
[46] SAFA, [60]
[47] SAFA, [61]
At approximately 8:00 am Mr Kera, Mr Manna, Mr M Greenfield, and other CFMMEU officers had a meeting at the Barangaroo site with Mr Mazzarolo, Mr Gianni Zanet of Zanet Pumping, and Lend Lease. Safety compliance issues were raised concerning the Zanet Pumping concrete pump truck that had entered the Barangaroo Site on 16 February 2015 but had been unable to perform work on that day. While Mr Mazzarolo was telephoning to arrange for a WorkCover inspector to attend the site in response to safety concerns about a Zanet Pumping concrete pump truck, Mr Manna directed Mr Zanet to take the truck off the site by pointing towards the H4 exit gate. Mr Zanet responded by getting into the truck and driving it out of the H4 gate.[48]
[48] SAFA, [62]
On 17 February 2015 DMG was unable to carry out all of the work it was scheduled to perform under the Barangaroo Contract that day.[49]
[49] SAFA, [63]
Costs DMG incurred as set out in agreed statement of facts
DMG was invoiced for the hire of labour and concrete pump trucks by Prestons, Zanet Pumping, Commercial and ZC Group for the work that had been scheduled on 14, 16, and 17 February 2015 but not carried out. DMG paid the invoices that claimed amounts totalling approximately $50,000. The claims included claims for cost of the three pours that were cancelled over those three days.[50]
[50] SAFA, [64]
Loss - evidence
The ABCC tendered at the hearing paragraphs 40, 58, 91, and 92 of the affidavit of Mr Mazzarolo made on 16 February 2015 (first Mazzarolo affidavit), paragraphs 60 and 61 of the affidavit of Mr Mazzarolo made on 18 February 2015 (second Mazzarolo affidavit), and paragraphs 33, 48, 57, and 58 of the affidavit of Mr Mazzarolo made on 12 February 2018 (third Mazzarolo affidavit). Counsel for the relevant respondents objected to the tender, first, because they received no notice of the tender and, second, because the paragraphs are not in admissible form. With the agreement of the parties I indicated I would give my ruling on the objections in my reasons for judgment dealing with penalty.
The first of the two objections has no merit. The ABCC referred to the paragraphs in the first, second, and third Mazzarolo affidavits the ABCC tendered at the hearing in its written submissions on penalty.[51] The ABCC’s lawyer provided the ABCC’s outline of submissions to the lawyers for the relevant respondents by email sent on 18 January 2019, some two months before the hearing.[52] The email stated that the ABCC “will seek to tender the paragraphs of the affidavits of Louie Mazzarolo referred to in paragraph [71(c)] of the Applicant’s Submissions on Penalty”.
[51] Applicant’s Submissions on Penalty, [71]
[52] A copy of the email forms part of MFI1.
The determination of the second objection requires me to set out the effect of the relevant paragraphs; and these are as follows:
a)In paragraphs 57 and 58 of the first Mazzarolo affidavit, Mr Mazzarolo deposes there were insufficient subcontractors to start work on the R8 area; the pour that was scheduled to go ahead in the R8 and R9 area on 16 February 2015 did not go ahead; and that on 17 February 2015, after Mr Manna spoke to Mr Zanet, the driver, the pump truck left the site, and no pour went ahead because there was not enough labour.
b)In paragraph 61 of the second Mazzarolo affidavit, for which paragraph 60 provides context, Mr Mazzarolo deposes to the effect on DMG of the CFMMEU’s interference with the concrete pour since Friday 13 February 2015. Mr Mazzarolo identifies five effects, these being delayed revenue, the cost of contract labour, salary costs, costs of hired equipment, and the cost of “idle capital”.
c)In paragraph 33 of the third Mazzarolo affidavit, Mr Mazzarolo deposes to DMG having arranged for the subcontractors he there identified to provide labour at the Barangaroo Site on 14, 16, and 17 February 2015. Mr Mazzarolo exhibits “DMG day sheets and invoices (and progress claims) for the Barangaroo site for the days including 14 February 2015, 16 February 2015 and 17 February 2015”, and deposes that “all attached invoices and progress claims were paid”.
d)In paragraphs 57 and 58 of the third Mazzarolo affidavit, Mr Mazzarolo deposes to there were insufficient subcontractors to start work on the R8 area; the pour that was scheduled to go ahead in the R8 and R9 area on 16 February 2015 did not go ahead; and that on 17 February 2015, after Mr Manna spoke to Mr Zanet, the driver, the pump truck left the site, and no pour went ahead because there was not enough labour.
The evidence contained in the first Mazzarolo affidavit relates to matters that are already covered by the agreed statement of facts. The matters deposed to in the second and third Mazzarolo affidavits (except paragraph 33) are not covered in the agreed statement of facts. In my opinion, the paragraphs are inadmissible because they are conclusions of the losses DMG is said to have suffered without disclosing the basis on which such conclusions have been arrived at. Alternatively, given the absence of material on the basis of which one could assess the credibility and accuracy of the conclusions to which Mr Mazzarolo deposes, I would give the conclusions no weight, even if they were admissible. I therefore do not propose to rely on the conclusions to which Mr Mazzarolo deposes in paragraph 61 of his second affidavit.
Admitted contraventions
Mr Parker
The Draft Declarations provide that Mr Parker engaged in three contraventions of s.343(1) of the FW Act, one on 14 February 2015 (Parker Declaration 1), the second on 16 February 2015 (Parker Declaration 2), and the third on 17 February 2015 (Parker Declaration 3). Parker Declaration 1 consists of the following elements:[53]
a)A statement that Mr Parker contravened s.343(1) of the FW Act on 14 February 2015 at the Barangaroo Site by organising or taking action against DMG.
b)The identification of the facts on which that statement is based, these being, first, Mr Parker’s stating to Mr Titone of Prestons Contractors: “We don’t want to get on the wrong foot of each other”; and, second, Mr Parker’s making this statement in response to Mr Titone’s stating to Mr Parker that he could not arrange for workers not to work at DMG’s sites.
c)A statement that Mr Parker engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
[53] Orders, paragraph 3(1)(a); SAFA, [65]
Parker Declaration 2 consists of the following elements:[54]
a)A statement that Mr Parker contravened s.343(1) of the FW Act on 16 February 2015 at the Barangaroo Site by organising or taking action against DMG.
b)The identification of the facts on which the statement is based, these being: Mr Parker’s congregating outside a vehicle entrance to the Barangaroo Site together with other persons, including other officials of the CFMMEU, in a way that blocked vehicle access to that entry; seeking to negotiate with Mr Mazzarolo (DMG’s general manager) an enterprise agreement, but refusing a request Mr Mazzarolo made that Mr Parker and the group of other persons blocking a vehicle entry in the Barangaroo Site move out of the way; and Mr Parker’s stating to Mr Mazzarolo that the prevention of DMG’s performance of work would cause more than economic harm.
c)A statement that Mr Parker engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
[54] Orders, paragraph 3(1)(b); SAFA, [66]
Parker Declaration 3 consists of the following elements:[55]
a)A statement that Mr Parker contravened s.343(1) of the FW Act on 17 February 2015 at the Barangaroo Site by organising or taking action against DMG.
b)The identification of the facts on which the statement is based, these being: Mr Parker’s telling Mr Mazzarolo he was only prepared to meet with him when subcontractors were not working at the Barangaroo Site; and Mr Parker telling Mr Mazzarolo he would only be agreeing to an enterprise agreement on the terms demanded by the CFMMEU, that “we are not mucking around anymore”, and “we will keep fighting until the end”.
c)A statement that Mr Parker engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
[55] Orders, paragraph 3(1)(c); SAFA, [67]
I am satisfied the agreed facts establish paragraphs (b) and (c) of the elements of each of Parker Declarations 1, 2, and 3 and, when viewed in the context of the agreed facts as a whole, those elements establish that Mr Parker contravened s.343(1) of the FW Act as stated by paragraph (a) of the elements of each of Parker Declarations 1, 2, and 3. I propose to make declarations to the effect of Parker Declarations 1, 2, and 3. I am so satisfied even though it is arguable that where each admitted contravention relies on two or more facts, each fact could constitute a contravention of s.343(1) of the FW Act; and that is because I am also satisfied that, if such facts were treated as separate contraventions, it could reasonably be argued that they arose “out of substantially the same act, omission or occurrences”,[56] and thus be liable to be assessed under the “one transaction principle” to which I refer later in these reasons as if they constituted one contravention.
[56] Royer v Western Australia [2009] WASCA 139, at [22] (Owen JA)
Mr M Greenfield
The Draft Declarations provide that Mr M Greenfield engaged in two contraventions of s.343(1) of the FW Act, one on 16 February 2015 (Greenfield Declaration 1), and the other on 17 February 2015 (Greenfield Declaration 2). Greenfield Declaration 1 consists of the following elements:[57]
a)A statement that Mr M Greenfield contravened s.343(1) of the FW Act on 16 February 2015 at the Barangaroo Site by organising or taking action against DMG.
b)The identification of the facts on which the statement is based, namely: Mr M Greenfield’s being part of a group of persons, including other officials of the CFMMEU, who had congregated outside a vehicle entrance to the Barangaroo Site in a way that blocked vehicle access to that entry.
c)A statement that Mr M Greenfield engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
[57] Orders, paragraph 3(2)(a); SAFA, [74]
Greenfield Declaration 2 consists of the following elements:[58]
a)A statement that Mr M Greenfield contravened s.343(1) of the FW Act on 17 February 2015 at the Barangaroo Site by organising or taking action against DMG.
b)The identification of the facts on which the statement is based, these being, first, his attending with Mr Manna outside an entry to the Barangaroo Site and attending employees of Commercial accusing them of being “scabs”, and telling them that DMG was seeking to reduce DMG employees’ wages and deprive them of penalty rates; and, second, telling Mr Mazzarolo to sign the enterprise bargaining agreement demanded by the CFMMEU and “we will be gone”.
c)A statement that Mr M Greenfield engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
[58] Orders, paragraph 3(2)(b); SAFA, [75]
I am satisfied the agreed facts establish paragraphs (b) and (c) of the elements of each of Greenfield Declarations 1 and 2 and, when viewed in the context of the agreed facts as a whole, those elements establish that Mr M Greenfield contravened s.343(1) of the FW Act as stated by paragraph (a) of the elements of each of Greenfield Declarations 1 and 2. I propose to make a declaration to the effect of Greenfield Declarations 1 and 2. I am so satisfied even though it is arguable that where each admitted contravention relies on two or more facts, each fact could constitute a contravention of s.343(1) of the FW Act; and that is because I am also satisfied that, if such facts were treated as separate contraventions it could reasonably be argued that they arose “out of substantially the same act, omission or occurrences”,[59] and thus be liable to assessed under the “one transaction principle” to which I refer later in these reasons as if they constituted one contravention.
[59] Royer v Western Australia [2009] WASCA 139, at [22] (Owen JA)
Mr Collier
The Draft Declarations provide that Mr Collier engaged in one contravention of s.343(1) of the FW Act, and this contravention occurred on 16 February 2015 (Collier Declaration). The elements of the contravention are:[60]
a)A statement that Mr Collier contravened s.343(1) of the FW Act on 16 February 2015 at the Barangaroo Site by organising or taking action against DMG.
b)The identification of the facts on which the statement is based, these being: Mr Collier, together with Mr Parker, Mr M Greenfield, and Mr Kera and other persons (including other officials of the CFMMEU) congregating outside a vehicle entrance to the Barangaroo Site in a way that blocked vehicle access to that entry; Mr Collier calling out to a group that was blocking a vehicle entrance to the Barangaroo Site: “Stand on the road guys. There’s not enough police to take us all away”, and shouting: “If you have any mates get them down here. Breakfast is on Sparkles”; and, together with Mr Kera, Mr Manna and other persons congregating outside a vehicle entrance to the Barangaroo Site (with Mr Collier being in the front rank of the congregation), cheering, linking arms, and moving towards a truck that was seeking to enter the site to block its entry while some members of the group were shouting “fucking scabs”, “filthy dogs”, “fuck off”, “CFMEU here to stay”, and “CFMEU”.
c)A statement that Mr Collier engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
[60] Orders, 3(3); SAFA, [76]
I am satisfied the agreed facts establish paragraphs (b) and (c) of the elements of the Collier Declaration, and that, when viewed in the context of the agreed facts as a whole, those elements establish that Mr Collier contravened s.343(1) of the FW Act as stated by paragraph (a) of the Collier Declaration. I propose to make a declaration to the effect of the Collier Declaration. I am so satisfied even though it is arguable that each of the facts on which the admitted contravention is based could constitute a contravention of s.343(1) of the FW Act; and that is because I am also satisfied that, if such facts were treated as separate contraventions it could reasonably be argued that they arose “out of substantially the same act, omission or occurrences”,[61] and thus be liable to assessed under the “one transaction principle” to which I refer later in these reasons as if they constituted one contravention.
[61] Royer v Western Australia [2009] WASCA 139, at [22] (Owen JA)
Mr Kera
The Draft Declarations provide that Mr Kera engaged in three contraventions of s.343(1) of the FW Act, one on 14 February 2015 (Kera Declaration 1), the second on 16 February 2015 (Kera Declaration 2), and the third on 17 February 2015 (Kera Declaration 3). Kera Declaration 1 consists of the following elements:[62]
a)A statement that Mr Kera contravened s.343(1) of the FW Act on 14 February 2015 at the Barangaroo Site by organising or taking action against DMG.
b)The identification of the facts on which that statement is based, these being, first, congregating outside a vehicle entrance to the Barangaroo Site together with other persons, including other officials of the CFMMEU, in a way that blocked vehicle access to that entry; second, when Mr Mazzarolo was arranging the induction of Commercial’s employees, accusing those employees of doing the work of striking DMG employees, and telling them they did not want to be labelled scab labour; and, third, after stating to Mr Mazzarolo there was non-compliance with superannuation payment work, also stating to Mr Mazzarolo: “[Y]ou’re not pouring”.
c)A statement that Mr Kera engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
[62] Orders, paragraph 3(4)(a); SAFA, [68]
Kera Declaration 2 consists of the following elements:[63]
a)A statement that Mr Kera contravened s.343(1) of the FW Act on 16 February 2015 at the Barangaroo Site by organising or taking action against DMG.
b)The identification of the facts on which that statement is based, these being, first, congregating outside a vehicle entrance to the Barangaroo Site together with other persons, including other officials of the CFMMEU, in a way that blocked vehicle access to that entry; second, not responding to a request made by Mr Blanchard (operations manager of Lend Lease) that the group that had congregated outside the vehicle entrance move to allow a non-DMG truck to enter through that entrance; and, third, together with Mr Collier, Mr Manna, and other persons who had congregated outside that vehicle entrance at the Barangaroo site, cheering, linking arms, and moving forward towards a truck that was seeking to enter the site to block its entry while some members of the group shouted “fucking scabs”, “filthy dogs”, “fuck off”, “CFMEU here to stay”, and “CFMEU”.
c)A statement that Mr Kera engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
[63] Orders, paragraph 3(4)(b); SAFA, [69]
Kera Declaration 3 consists of the following elements:[64]
a)A statement that Mr Kera contravened s.343(1) of the FW Act on 17 February 2015 at the Barangaroo Site by organising or taking action against DMG.
b)The identification of the fact on which that statement is based, namely, his congregating outside a vehicle entrance to the Barangaroo Site together with striking DMG employees, in a way that delayed vehicle access to that entry.
c)A statement that Mr Kera engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
[64] Orders, paragraph 3(4)(c); SAFA, [70]
I am satisfied the agreed facts establish paragraphs (b) and (c) of the elements of each of Kera Declarations 1, 2, and 3 and, when viewed in the context of the agreed facts as a whole, those elements establish that Mr Kera contravened s.343(1) of the FW Act as stated by paragraph (a) of the elements of each of Kera Declarations 1, 2, and 3. I propose to make a declaration to the effect of Kera Declarations 1, 2, and 3. I am so satisfied even though it is arguable that where each admitted contravention relies on two or more facts, each fact could constitute a contravention of s.343(1) of the FW Act; and that is because I am also satisfied that, if such facts were treated as separate contraventions it could reasonably be argued that they arose “out of substantially the same act, omission or occurrences”,[65] and thus be liable to assessed under the “one transaction principle” to which I refer later in these reasons as if they constituted one contravention.
[65] Royer v Western Australia [2009] WASCA 139, at [22] (Owen JA)
Mr Manna
The Draft Declarations provide that Mr Manna engaged in three contraventions of s.343(1) of the FW Act, one on 14 February 2015 (Manna Declaration 1), the second on 16 February 2015 (Manna Declaration 2), and the third on 17 February 2015 (Manna Declaration 3). Manna Declaration 1 consists of the following elements:[66]
a)A statement that Mr Manna contravened s.343(1) of the FW Act on 14 February 2015 at the Barangaroo Site by organising or taking action against DMG.
b)The identification of the facts on which that statement is based, these being, first, Mr Manna’s telephoning Mr Ciaschetti, Commercial’s operations manager, and telling him to ensure that Commercial’s employees did not carry out work for DMG at Barangaroo on that day, that that was not illegal, and stating: “I have looked after you in the past but you are going against me – you’ll see”; and, second, congregating outside a vehicle entrance to the Barangaroo Site together with other persons, including other officials of the CFMMEU, in a way that blocked vehicle access to that entry.
c)A statement that Mr Manna engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
[66] Orders, paragraph 3(5)(a); SAFA, [71]
Manna Declaration 2 consists of the following elements:[67]
a)A statement that Mr Manna contravened s.343(1) of the FW Act on 16 February 2015 at the Barangaroo Site by organising or taking action against DMG.
b)The identification of the facts on which that statement is based, these being, first, Mr Manna’s congregating outside a vehicle entrance to the Barangaroo Site together with other persons, including other officials of the CFMMEU, in a way that blocked vehicle access to that entry; second, together with Mr Collier and Mr Kera and other persons who had congregated outside that vehicle entrance at the Barangaroo Site (with Mr Manna being in the front rank of the congregation), cheering, linking arms, and moving forward towards a truck that was seeking to enter the site to block its entry while some members of the group shouted “fucking scabs”, “filthy dogs”, “fuck off”, “CFMEU here to stay”, and “CFMEU”.
c)A statement that Mr Manna engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
[67] Orders, 3(5)(b); SAFA, [72]
Manna Declaration 3 consists of the following elements:[68]
a)A statement that Mr Manna contravened s.343(1) of the FW Act on 17 February 2015 at the Barangaroo Site by organising or taking action against DMG.
b)The identification of the facts on which that statement is based, these being, first, Mr Manna’s, together with Mr M Greenfield, attending outside an entry to the Barangaroo Site, and approaching employees of Commercial while Mr M Greenfield accused them of being “scabs” and told them that DMG was seeking to reduce DMG’s employees’ wages and to deprive them of penalty rates; and, second, having raised safety compliance issues concerning the pump supplied by Zanet Pumping, Mr Manna directed Mr Zanet to take the truck off the Barangaroo Site in response to which Mr Zanet did so.
c)A statement that Mr Manna engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
[68] Orders, 3(5)(c); SAFA, [73]
I am satisfied the agreed facts establish paragraphs (b) and (c) of the elements of each of Manna Declarations 1, 2, and 3 and, when viewed in the context of the agreed facts as a whole, those elements establish that Mr Manna contravened s.343(1) of the FW Act as stated by paragraph (a) of the elements of each of Manna Declarations 1, 2, and 3. I propose to make declarations to the effect of Kera Declarations 1, 2, and 3. I am so satisfied even though it is arguable that where each admitted contravention relies on two or more facts, each fact could constitute a contravention of s.343(1) of the FW Act; and that is because I am also satisfied that, if such facts were treated as separate contraventions it could reasonably be argued that they arose “out of substantially the same act, omission or occurrences”,[69] and thus be liable to be assessed under the “one transaction principle” to which I refer later in these reasons as if they constituted one contravention.
[69] Royer v Western Australia [2009] WASCA 139, at [22] (Owen JA)
The CFMMEU
The Draft Declarations relating to the CFMMEU may be divided into two sets. One is a declaration that the conduct, actions, and states of mind of each of Mr Parker, Mr M Greenfield, Mr Collier, Mr Kera, and Mr Manna described in each of the Parker, Greenfield, Collier, Kera, and Manna Declarations were the conduct, actions, and states of mind of the CFMMEU. That declaration states that the attribution arises because of the operation of s.363 and s.793 of the FW Act.
Subsection 363(1) of the FW Act provides that, for the purposes of Part 3.1 of the FW Act (which contains s.343(1)) “action taken by an officer or agent of [an] industrial association” “is taken to be action of [the] industrial association”. Subsection 793(1) of the FW Act provides, among other things, that any conduct engaged in on behalf of a body corporate by an officer, employee, or agent of the body within the scope of his or her actual or apparent authority is taken, for the purpose of the FW Act, to have been engaged in also by the body corporate.
The parties agree that each of Mr Parker, Mr M Greenfield, Mr Collier, Mr Kera, and Mr Manna are officers and employees of the CFMMEU. Further, when viewed in the context of the agreed facts as a whole, I am satisfied that the conduct of each of Mr Parker, Mr M Greenfield, Mr Collier, Mr Kera, and Mr Manna occurred within the actual or apparent scope of the authority they each had to act on behalf of the CFMMEU.
This, then, brings me to the second set of declarations concerning the CFMMEU; and these are declarations that the CFMMEU contravened s.343(1) on each of the occasions each of Mr Parker, Mr M Greenfield, Mr Collier, Mr Kera, and Mr Manna contravened s.343(1) of the FW Act. Given the conduct, actions, and states of mind of these persons is to be attributed to the CFMMEU, it follows that the CFMMEU contravened s.343(1) of the FW Act on each occasion each of Mr Parker, Mr M Greenfield, Mr Collier, Mr Kera, and Mr Manna contravened s.343(1) of the FW Act. I propose, therefore, to make declarations to that effect.
Principles
Statutory framework
Subsection 546(1) of the FW Act provides that this Court may, on application, order a person to pay a pecuniary penalty the Court considers is appropriate if the Court is satisfied the person has contravened a “civil remedy provision”. That expression is defined in s.539 of the FW Act to include the provisions identified in column 1 of the table to s.539(2) of the Act. Section 343(1) is included in that column.
Subsection 546(2) of the FW Act provides that the pecuniary penalty the Court may impose must not, where the person is an individual, be more than “the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2)”; and where the person who has contravened a civil remedy provision is a body corporate, the penalty the Court may impose must not be more than “5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2)”. The maximum penalty units for a contravention s.343(1) of the FW Act are 60 penalty units for an individual. The maximum penalty units for which the CFMMEU is liable to pay for each contravention of s.343(1) of the FW Act, therefore, is 300 penalty units; and the maximum penalty units each of Mr Parker, Mr M Greenfield, Mr Collier, Mr Kera, and Mr Manna is liable to pay for each of their contraventions of s.343(1) of the FW Act is 60 penalty units.
I need also refer to s.12 of the FW Act, which provides that “penalty unit” has the meaning given by s.4AA of the Crimes Act 1914 (Cth) (Crimes Act). It is common ground that during 14 to 17 February 2015 s.4AA of the Crimes Act defined the penalty unity to mean $170. That means that $10,200 is the maximum penalty the Court may order each of Mr Parker, Mr M Greenfield, Mr Collier, Mr Kera, and Mr Manna to pay for each contravention of s.343(1) of the FW Act; and $51,000 is the maximum penalty the Court may order the CFMMEU to pay for each contravention of s.343(1) of the FW Act.
Assessing penalty for single contravention – object of assessment
As I have noted elsewhere,[70] when assessing the amount of a pecuniary penalty the Court should order be paid it is useful to distinguish between the purpose or purposes for which pecuniary penalties are to be imposed and, given that purpose or purposes, the matters that may be relevant to assessing the penalty. As for the purpose of imposing pecuniary penalties, the Full Federal Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (ABCC v CFMEU) said:[71]
Whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty is primarily, if not wholly, protective in promoting the public interest in compliance. The principal object of a pecuniary penalty 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; both specific and general deterrence are important. A pecuniary penalty for a contravention of the law must be fixed with a view to ensuring that the penalty is not to be regarded by the offender or others as an acceptable cost of doing business. In relation to general deterrence, it is important to send a message that contraventions of the sort under consideration are serious and not acceptable.
The question whether a pecuniary penalty involves an element of punishment remains somewhat controversial. To a certain extent, that debate appears to be more semantic or philosophical than real. It is sufficient to say that, accepting that the primary purpose of imposing a pecuniary penalty is to protect and deter, that purpose is achieved by imposing a punishment in the form of a pecuniary penalty.
[71] [2017] FCAFC 113, [98], [99] (citations omitted)
That the principal purpose of making an order for the payment of a pecuniary penalty is deterrence was confirmed by the plurality in Australian Building and Construction Commissioner v Construction, Forestry, Energy Union:[72]
[T]he 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.
[72] [2018] HCA 3, at [116] (Keane, Nettle and Gordon JJ)
Specific deterrence “aims to dissuade the particular individual from committing further offences by imposing sanctions which demonstrate the adverse consequences of criminal activity”, whereas general deterrence “aims to deter the general population from committing similar offences by instilling the fear of incurring similar sanctions”.[73] Specific and general deterrence both “involve behavioural responses”. Specific deterrence “refers to the reduction in reoffending that is presumed to follow from the experience of actually being punished”, whereas general deterrence relies on the threat of punishment to “discourage potential and actual criminals in the general public from committing crime”.[74]
[73] National Judicial College of Australia, General Sentence Principles accessed on 15 January 2020
[74] Apel R., Nagin D.S. (2014) “Deterrence”. In: Bruinsma G., Weisburd D. (eds) Encyclopaedia of Criminology and Criminal Justice. Springer, New York, NY
The relevant respondents submit that although in setting a penalty “deterrence is the only object, it is not the overriding principle”; the “Court must be governed by proportionality by reference to the contravening conduct”.[75] The relevant respondents rely on the following passage from the judgment of the Full Federal Court in The Non-Indemnification Personal Payment Case as follows:[76]
The overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct. The history of contravention is to be taken into account in fixing the proper level of penalty for the proportionate response to the contravention in question. Proportionality has within it the need to characterise the seriousness of the contravention. Proportionality of penal response to a contravention assessed by reference to its seriousness and gravity is an essential characteristic of the application of the statute. The penal response is for that contravention, not earlier contraventions: . . . Prior contraventions may reveal an apparent disregard for the Act and the need for deterrence by a penalty at a level appropriate to achieve that objective. It is to be borne in mind, however, that it is for the conduct in question that the penalty is imposed, not for prior conduct.
[75] Outline of Submissions on Penalty on Behalf of the First, Third, Fifth, Seventh, Ninth and Tenth Respondents, [2]
Contrition and evidence to take corrective action. What I have said about these factors when assessing Kera Declaration 1 applies to the contravening conduct described in Kera Declaration 3.
Assessment of penalty. I assess $6,500 as the penalty for the contravention described in Kera Declaration 3.
Mr Manna’s admitted contraventions
Contravening conduct described in Manna Declaration 1 (14 February 2015)
Nature and extent of the contravention. The admitted conduct is, first, Mr Manna’s telephoning Mr Ciaschetti, Commercial’s operations manager, and telling him to ensure that Commercial’s employees did not carry out work for DMG at Barangaroo on that day, that that was not illegal, and stating: “I have looked after you in the past but you are going against me – you’ll see”; second, congregating outside a vehicle entrance to the Barangaroo Site together with other persons, including other officials of the CFMMEU, in a way that blocked vehicle access to that entry; and, third, undertaking this conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
This admitted conduct must be viewed in the context of the admitted facts considered as a whole. In particular, it must be viewed in the context that the CFMMEU and DMG were in dispute about the terms of the proposed enterprise agreement; and on 13 February 2015 the DMG employees resolved to go on strike. Mr Manna’s conduct was intentional. Further, Mr Manna in terms stated to Mr Ciaschetti that Commercial employees must not carry out work threatening in vague terms adverse consequences to Commercial; and Mr Manna’s congregating with others outside the gate was intended to signal to operators of trucks and workers that they would be prevented from entering the Barangaroo Site to carry out work.
Circumstances in which the contravening conduct took place. The conduct occurred in circumstances where the CFMMEU and DMG were in disagreement about the terms of an enterprise agreement; and in circumstances where DMG was contracted to pour and where a particular subcontractor was attempting to perform part of the concrete pouring work that DMG had agree it would perform.
Specific deterrence. The ABCC submits that Mr Manna is not a “first offender”. On 20 October 2009 Mr Manna was ordered to pay a pecuniary penalty of $2,600 for one contravention of s.789 of the WR Act.[122] The imposition of the penalty on Mr Manna is not of great relevance to determining the likelihood of Mr Manna again contravening the FW Act, given the pecuniary penalty was imposed in 2009. There is no evidence Mr Manna is an officer of the CFMMEU.[123] Even if he were an officer, that by itself would have afforded no basis for my inferring there is a tangible risk that Mr Manna will contravene a civil remedy provision such that the penalty should reflect an element for specific deterrence.
[123] Mr Manna’s employment status is not mentioned in the affidavit of B J May, 17.01.2019
General deterrence. Given that the principal purpose for which a pecuniary penalty is ordered is to deter others from contravening the FW Act, the pecuniary penalty should be set to communicate to persons in the position or Mr Manna and, more generally, persons who are involved in the negotiation of enterprise agreements, that an attempt to achieve by unlawful means the entry into of favourable enterprise agreements will face a substantial penalty.
The nature and extent of any loss and damage suffered as a result of the contraventions. The parties agree that DMG did not carry out the scheduled concrete pours at area R8 and R9. I am satisfied that Mr Manna’s admitted conduct can be said to have been a sufficiently contributing factor.
Contrition and evidence to take corrective action. The ABCC submits there is no evidence of any contrition or corrective action, or of co-operation with the authorities.[124] That is correct. For reasons I have already given in relation to Mr Parker, Mr M Greenfield, Mr Collier, and Mr Kera, credit should be given to Mr Manna for his participating in a mediation and agreeing to admit his contraventions of s.343(1) of the FW Act.
[124] Applicant’s Submissions on Penalty, [71.g.]
Assessment of penalty. I assess $7,500 as the penalty for the contravention described in Manna Declaration 1.
Contravening conduct described in Manna Declaration 2 (16 February 2015)
Nature and extent of the contravention. The admitted conduct is, first, Mr Manna’s congregating outside a vehicle entrance to the Barangaroo Site together with other persons, including other officials of the CFMMEU, in a way that blocked vehicle access to that entry; second, together with Mr Collier and Mr Kera and other persons who had congregated outside that vehicle entrance at the Barangaroo site (with Mr Manna being in the front rank of the congregation), cheering, linking arms, and moving forward towards a truck that was seeking to enter the site to block its entry while some members of the group shouted “fucking scabs”, “filthy dogs”, “fuck off”, “CFMEU here to stay”, and “CFMEU”; and, third, engaging in this conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
This admitted conduct must be viewed in the context of the admitted facts considered as a whole. In particular, it must be viewed in the context that the CFMMEU and DMG were in dispute about the terms of the proposed enterprise agreement; that on 13 February 2015 the DMG employees resolved to go on strike; and on 14 February 2015 Mr Manna engaged in the conduct described in Manna Declaration 1. The conduct is serious. It was intended, and it succeeded in its intention, to prevent the Zanet Pumping truck from entering the Barangaroo Site to pour concrete.
Circumstances in which the contravening conduct took place. The conduct occurred in circumstances where the CFMMEU and DMG were in disagreement about the terms of an enterprise agreement; and in circumstances where DMG was contracted to pour and where a particular subcontractor was attempting to perform part of the concrete pouring work that DMG had agree it would perform.
Specific and general deterrence. What I have said about these factors when assessing Manna Declaration 1 applies to the contravening conduct described in Manna Declaration 2.
The nature and extent of any loss and damage suffered as a result of the contraventions. The parties agree that the Zanet Pumping truck was unable to enter the enter the Barangaroo Site at the time it was scheduled to enter the Site, but that by the time it was able to do so there was not enough labour to enable Zanet Pumping to pour the concrete. It is apparent from the agreed facts that Mr Manna was directly involved in the actions that prevented the Zanet Pumping truck from entering the Barangaroo Site at 8:40 am on 16 February 2015 and that he took a leading role. I am satisfied, therefore, that Mr Manna’s admitted conduct was a significant contributing factor to the Zanet Pumping truck’s not gaining access to the Barangaroo Site and to the Zanet Pumping truck’s not being able to pour concrete on that day.
Contrition and evidence to take corrective action. What I have said about these factors when assessing Manna Declaration 1 applies to the contravening conduct described in Manna Declaration 2.
Assessment of penalty. I assess $7,500 as the penalty for the contravention described in Manna Declaration 2.
Contravening conduct described in Manna Declaration 3 (17 February 2015)
Nature and extent of the contravention. The admitted conduct is, first, Mr Manna, together with Mr M Greenfield, attending outside an entry to the Barangaroo Site, and approaching employees of Commercial while Mr M Greenfield accused them of being “scabs” and told them that DMG was seeking to reduce DMG’s employees’ wages and to deprive them of penalty rates; second, having raised safety compliance issues concerning the pump supplied by Zanet Pumping, Mr Manna directed Mr Zanet to take the truck off the Barangaroo Site in response to which Mr Zanet did so; and, third, Mr Manna engaged in this conduct with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.
This admitted conduct must be viewed in the context of the admitted facts considered as a whole. In particular, it must be viewed in the context that the CFMMEU and DMG were in dispute about the terms of the proposed enterprise agreement; that on 13 February 2015 the DMG employees resolved to go on strike; on 14 February 2015 Mr Manna engaged in the conduct described in Manna Declaration 1; and on 16 February 2015 Mr Manna engaged in the conduct described in Manna Declaration 2. The conduct is serious. It was intended, and it succeeded in its intention, to have Mr Zanet remove his truck from the Barangaroo Site.
Circumstances in which the contravening conduct took place. The conduct occurred in circumstances where the CFMMEU and DMG were in disagreement about the terms of an enterprise agreement; and in circumstances where DMG was contracted to pour concrete, and where a particular subcontractor was attempting to perform part of the concrete pouring work that DMG had agree it would perform.
Specific and general deterrence. What I have said about these factors when assessing Manna Declaration 1 applies to the contravening conduct described in Manna Declaration 3.
The nature and extent of any loss and damage suffered as a result of the contraventions. The parties agree Mr Manna directed Mr Zanet to remove his truck from the Barangaroo Site, and Mr Zanet complied with that direction. The parties also agree that DMG was unable to carry out all of the work it was scheduled to carry out that day. I am satisfied that Mr Manna’s admitted conduct was a contributing factor to DMG’s being unable to carry out all of the work it was scheduled to carry out that day.
Contrition and evidence to take corrective action. What I have said about these factors when assessing Manna Declaration 1 applies to the contravening conduct described in Manna Declaration 3.
Assessment of penalty. I assess $7,500 as the penalty for the contravention described in Manna Declaration 3.
CFMMEU’s admitted contraventions
As I have already noted, the CFMMEU admits that each contravention of each of the other relevant respondents (natural person respondents) constitutes a contravention by the CFMMEU. Save for one exception, the matters I have taken into account in assessing each contravention by each of the natural person respondents also apply to assessing the pecuniary penalty the CFMMEU should be ordered to pay for each such contravention.
The exception relates to specific deterrence. The CFMMEU has been the subject of multiple orders for the payment of pecuniary penalties.[125] The ABCC has referred to “a strong line of Federal Court authority criticising the CFMMEU’s repeated contraventions over a long period of time”.[126] I have already noted I do not intend to rely on the CFMMEU’s previous contraventions for the purpose of assessing the states of mind of any of the relevant respondents. The CFMMEU’s previous contraventions, however, are relevant to determining whether, and if so, to what extent, specific deterrence should weigh as a factor when assessing the CFMMEU’s admitted contraventions. The relevance of past contraventions to the assessment of penalty was explained by Tracey J in Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union:[127]
Neither the CFMEU nor any individual respondent is to be punished again for earlier misconduct. They are, however, to be punished more severely than they would have been had they had no adverse record or been responsible for only a few isolated incidents over a period of many years. Their continued willingness to engage in contravening conduct supports the view that earlier penalties, some of them severe, had not had a deterrent effect . . . . The longer such recidivism continues the more likely it is that this consideration will carry greater weight than the principle that the maximum available penalty must be reserved for the worst possible offending.
[125] The occasions are set out in a table titled “Prior Penalties & Declarations Under Industrial Laws Involving the CFMMEU” which is behind tab 11 of the exhibit to the affidavit of B J May, 17.01.2019
[126] Applicant’s Submission on Penalty, [38]
The relevance of past contraventions to the assessment of penalty was also explained by Jessup J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No.2):[128]
In giving weight to the Union’s record of contravention, as I shall do, the court is not using the present occasion to supplement the penalties imposed for different conduct on previous occasions. Rather, the court is giving appropriate recognition to what is, on any view, an important purpose of the regime of penalties for which the legislation provides: deterrence. Of all purposes, that is the most strongly linked to the public interest in compliance with the law. If contravention of a law is visited with penal outcomes which are demonstrably inadequate to achieve the purpose of the law, it might as well not be a law at all. It is in this sense, in my view, that the principle of proportionality is amply reflected in the imposition of a penalty which takes due account of the importance of specific deterrence.
Unlike the position of the natural person respondents, the record of the CFMMEU’s past contraventions of the industrial laws is a reason for concluding that the penalties that are to be assessed for the CFMMEU’s contraventions should reflect an amount for specific deterrence. I propose, therefore, to increase by $1,000 each of the penalties I have assessed for each of the natural person respondents, and assess the penalties for the CFMMEU’s contraventions by multiplying each adjusted penalty by 5 as follows:
Admitted Contravention
Penalty adjusted for specific deterrence
Penalty x 5
CFMMEU Contravention 1 (Parker Declaration 1) (14.02.2015)
$4,000
$20,000
CFMMEU Contravention 2 (Kera Declaration 1) (14.02.2015)
$8,500
$42,500
CFMMEU Contravention 3 (Manna Declaration 1) (14.02.2015)
$8,500
$42,500
CFMMEU Contravention 4 (Parker Declaration 2) (16.02.2015)
$8,000
$40,000
CFMMEU Contravention 5 (Kera Declaration 2) (16.02.2015)
$8,500
$42,500
CFMMEU Contravention 6 (Greenfield Declaration 1) (16.02.2015)
$7,000
$35,000
CFMMEU Contravention 7 (Collier Declaration) (16.02.2015)
$8,500
$42,500
CFMMEU Contravention 8 (Manna Declaration 2) (16.02.2015)
$8,500
$42,500
CFMMEU Contravention 9 (Parker Declaration 3) (17.02.2015)
$8,000
$40,000
CFMMEU Contravention 10 (Kera Declaration 3) (17.02.2015)
$7,500
$37,500
CFMMEU Contravention 11 (Greenfield Declaration 2) (17.02.2015)
$8,500
$42,500
CFMMEU Contravention 12 (Manna Declaration 3) (17.02.2015)
$8,500
$42,500
TOTAL
$94,000
$470,000
Adjustment under one transaction principle?
There is one element common to each of the contraventions admitted by the natural person respondents, namely, the intention that accompanied their admitted conduct. The conduct comprising each of the admitted contraventions, however, is distinct. I am not satisfied that the contravening conduct can reasonably be said to “arise out of substantially the same act, omission or occurrences”. [129] Thus, the “one transaction principle” does not apply to the contraventions admitted by the natural person respondents.[130]
[129] Royer v Western Australia [2009] WASCA 139, at [22] (Owen JA)
[130] The one transaction principle is not relevant to Mr Collier because he has admitted only one contravention.
As for the CFMMEU, there are some common elements of admitted contraventions of the natural person respondents that have been attributed to the CFMMEU in addition to intention. The common elements are:
a)on 16 February 2015 Mr Parker (Parker Declaration 2), Mr M Greenfield (Greenfield Declaration 1), and Mr Kera (Kera Declaration 2) congregating outside a vehicle entrance at the Barangaroo Site in a way that blocked access;
b)on 16 February 2015 Mr Collier (Collier Declaration), Mr Manna (Manna Declaration 2), and Mr Kera (Kera Declaration 2) congregating outside a vehicle entrance at the Barangaroo Site; and
c)on 17 February 2015 Mr M Greenfield (Greenfield Declaration 2) and Mr Manna (Manna Declaration 3) congregating outside a vehicle entrance at the Barangaroo Site.
Notwithstanding this overlap, there are substantial elements of each of the admitted contraventions that do no overlap with each other. I am, therefore, not satisfied that the contravening conduct can reasonably be said to arise “arise out of substantially the same act, omission or occurrences”. [131] Thus, the “one transaction principle” does not apply to the contraventions admitted by the natural person respondents that are attributed to the CFMMEU.
[131] Royer v Western Australia [2009] WASCA 139, at [22] (Owen JA)
Adjustment under totality principle?
The penalties I have assessed for Mr Parker total $17,000 as follows:
Admitted Contravention
Penalty
Parker Declaration 1
$3,000
Parker Declaration 2
$7,000
Parker Declaration 3
$7,000
Total
$17,000
This assessment reflects an appropriate relativity between the nature and character of the contravening conduct, viewed as a whole, and the sum of the penalties I have assessed for each contravention and, for that reason, I am satisfied $17,000 represents an amount that is a just and appropriate response to the contravening conduct of Mr Parker. I do not, therefore, propose to adjust the amounts I have assessed because of the totality principle.
The penalties I have assessed for Mr M Greenfield total $13,500, as follows:
Admitted Contravention
Penalty
Greenfield Declaration 1
$6,000
Greenfield Declaration 2
$7,500
Total
$13,500
I am satisfied this assessment reflects an appropriate relativity between the nature and character of the contravening conduct, viewed as a whole, and the sum of the penalties I have assessed for each contravention and, for that reason, I am satisfied $13,500 represents an amount that is a just and appropriate response to the contravening conduct of Mr M Greenfield. I do not, therefore, propose to adjust the amounts I have assessed because of the totality principle.
The penalties I have assessed for Kera total $21,500 as follows:
Admitted Contravention
Penalty
Kera Declaration 1
$7,500
Kera Declaration 2
$7,500
Kera Declaration 3
$6,500
Total
$21,500
I am satisfied this assessment reflects an appropriate relativity between the nature and character of the contravening conduct, viewed as a whole, and the sum of the penalties I have assessed for each contravention and, for that reason, I am satisfied $21,500 represents an amount that is a just and appropriate response to the contravening conduct of Mr Kera. I do not, therefore, propose to adjust the amounts I have assessed because of the totality principle.
The penalties I have assessed for Mr Manna total $22,500, as follows:
Admitted Contravention
Penalty
Manna Declaration 1
$7,500
Manna Declaration 2
$7,500
Manna Declaration 3
$7,500
Total
$22,500
I am satisfied this assessment reflects an appropriate relativity between the nature and character of the contravening conduct, viewed as a whole, and the sum of the penalties I have assessed for each contravention and, for that reason, I am satisfied $22,500 represents an amount that is a just and appropriate response to the contravening conduct of Mr Manna. I do not, therefore, propose to adjust the amounts I have assessed because of the totality principle.
The penalties I have assessed for the CFMMEU total $470,000. I am not satisfied this assessment reflects an appropriate relativity between the nature and character of the contravening conduct, viewed as a whole. That is so because there are substantial common elements in the contraventions I have identified in paragraph 201 of these reasons. The contravening conduct I there identify in each of paragraphs 201(a), (b), and (c) of these reasons constitutes joint conduct by the relevant respondents I identity in each of those paragraphs; and, being joint activity, the conduct of each set of relevant respondents in effect constitutes a single act by the CFMMEU. I propose to take into account this common element by reducing the penalties I have assessed as a follows:
Admitted Contravention
Penalty
Penalty (after adjustment)
CFMMEU Contravention 1 (Parker Declaration 1) (14.02.2015)
$20,000
$20,000
CFMMEU Contravention 2 (Kera Declaration 1) (14.02.2015)
$42,500
$42,500
CFMMEU Contravention 3 (Manna Declaration 1) (14.02.2015)
$42,500
$42,500
CFMMEU Contravention 4 (Parker Declaration 2) (16.02.2015)
$40,000
$32,000 (80%)
CFMMEU Contravention 5 (Kera Declaration 2) (16.02.2015)
$42,500
$34,000 (80%)
CFMMEU Contravention 6 (Greenfield Declaration 1) (16.02.2015)
$35,000
$28,000 (80%)
CFMMEU Contravention 7 (Collier Declaration) (16.02.2015)
$42,500
$34,000 (80%)
CFMMEU Contravention 8 (Manna Declaration 2) (16.02.2015)
$42,500
$34,000 (80%)
CFMMEU Contravention 9 (Parker Declaration 3) (17.02.2015)
$40,000
$32,000
CFMMEU Contravention 10 (Kera Declaration 3) (17.02.2015)
$37,500
$37,500
CFMMEU Contravention 11 (Greenfield Declaration 2) (17.02.2015)
$42,500
$34,000 (80%)
CFMMEU Contravention 12 (Manna Declaration 3) (17.02.2015)
$42,500
$34,000 (80%)
TOTAL
$470,000
$404,500
I propose, therefore, to order that the CFMMEU pay a pecuniary penalty in the amount of $404,500.
Disposition
I propose to make declarations in terms of the Draft Declarations. I also propose to order the relevant respondents pay pecuniary penalties in the amounts I have assessed; and that the amounts be paid to the Commonwealth of Australia within 28 days.
I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 28 February 2020
- AGLC
- Australian Building And Construction Commissioner v Construction, Forestry, Maritime, Mining And Energy Union and Ors (No.7) [2020] FCCA 351
- Case
- [2020] FCCA 351
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate pecuniary penalties for the admitted contraventions of section 343(1) of the *Fair Work Act 2009* (Cth). Specifically, the court had to assess the nature and extent of the contravening conduct, consider the circumstances in which it occurred, and evaluate factors such as contrition and the need for specific deterrence when calculating the penalties. The court also considered whether previous contraventions by Mr Manna were relevant to the assessment of future likelihood of contravention.
In assessing the penalties, the court considered the intentional nature of the conduct, which included blocking site access and making veiled threats of adverse consequences. The court noted that Mr Manna had a prior contravention in 2009, but found it not of great relevance to determining the likelihood of future contraventions given the time elapsed. The court ultimately assessed a penalty of $6,500 for the contravention described in Kera Declaration 3, and also made orders for pecuniary penalties in relation to Mr Parker's three contraventions, as detailed in Parker Declarations 1, 2, and 3, which involved similar coercive conduct aimed at securing agreement to the CFMMEU's proposed enterprise agreement terms.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The Draft Declarations provide that Mr Parker engaged in three contraventions of s.343(1) of the FW Act, one on 14 February 2015 (Parker Declaration 1), the second on 16 February 2015 (Parker Declaration 2), and the third on 17 February 2015 (Parker Declaration 3). Parker Declaration 1 consists of the following elements:[53]a)A statement that Mr Parker contravened s.343(1) of the FW Act on 14 February 2015 at the Barangaroo Site by organising or taking action against DMG. b)The identification of the facts on which that statement is based, these being, first, Mr Parker’s stating to Mr Titone of Prestons Contractors: “We don’t want to get on the wrong foot of each other”; and, second, Mr Parker’s making this statement in response to Mr Titone’s stating to Mr Parker that he could not arrange for workers not to work at DMG’s sites.c)A statement that Mr Parker engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.[53] Orders, paragraph 3(1)(a); SAFA, [65] Parker Declaration 2 consists of the following elements:[54]a)A statement that Mr Parker contravened s.343(1) of the FW Act on 16 February 2015 at the Barangaroo Site by organising or taking action against DMG.b)The identification of the facts on which the statement is based, these being: Mr Parker’s congregating outside a vehicle entrance to the Barangaroo Site together with other persons, including other officials of the CFMMEU, in a way that blocked vehicle access to that entry; seeking to negotiate with Mr Mazzarolo (DMG’s general manager) an enterprise agreement, but refusing a request Mr Mazzarolo made that Mr Parker and the group of other persons blocking a vehicle entry in the Barangaroo Site move out of the way; and Mr Parker’s stating to Mr Mazzarolo that the prevention of DMG’s performance of work would cause more than economic harm.c)A statement that Mr Parker engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.[54] Orders, paragraph 3(1)(b); SAFA, [66] Parker Declaration 3 consists of the following elements:[55]a)A statement that Mr Parker contravened s.343(1) of the FW Act on 17 February 2015 at the Barangaroo Site by organising or taking action against DMG.b)The identification of the facts on which the statement is based, these being: Mr Parker’s telling Mr Mazzarolo he was only prepared to meet with him when subcontractors were not working at the Barangaroo Site; and Mr Parker telling Mr Mazzarolo he would only be agreeing to an enterprise agreement on the terms demanded by the CFMMEU, that “we are not mucking around anymore”, and “we will keep fighting until the end”.c)A statement that Mr Parker engaged in the conduct referred to in (b) with an intent to coerce DMG to exercise or propose to exercise a workplace right in a particular way, namely, to agree to a new enterprise agreement on the terms the CFMMEU proposed.[55] Orders, paragraph 3(1)(c); SAFA, [67]