Australian Building and Construction Commissioner v Gutierrez
[2022] FedCFamC2G 8
•25 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Australian Building and Construction Commissioner v Gutierrez [2022] FedCFamC2G 8
File number(s): SYG 1018 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 25 January 2022 Catchwords: INDUSTRIAL LAW – Assessment of pecuniary penalties for admitted contraventions of s.500(1) of the Fair Work Act 2009 (Cth) – orders for the payment of pecuniary penalties made. Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth), ss.5, 21(1), 66(3), 111(1)
Crimes Act 1914 (Cth), ss.4AA, 12
Fair Work Act 2009 (Cth), ss.12, 481(1), 482, 483, 483A(1A), 487(1)(b), 494, 500, 512, 539, 546(1), 550, 556, 557, 793(1)
Fair Work Regulations 2009 (Cth), regs.1.08, 3.25
Registered Organisations Act 2009 (Cth), ss.26, 27
Work Health and Safety Act 2011 (NSW), ss.4, 116, 117, 119, 134
Work Health and Safety Regulation 2017 (NSW), reg.293Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88
Australian Building and Construction Commissioner v Menon [2020] FCA 1418
Australian Building and Construction Commissioner v Pattinson & Anor [2021] HCATrans 211
Construction, Forestry, Maritime, Mining and Energy Union & Ors v Australian Building and Construction Commissioner & Anor [2021] HCASL 60
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97
Contin v The Queen [2012] VSCA 247
Environment Protection Authority v Abbas [2021] NSWLEC 57
Flight Centre Limited v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Parker v Australian Building and Construction Commissioner [2019] FCAFC 56
Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177
R v Holder & Johnston [1983] 3 NSWLR 245
Royer v The State of Western Australia [2009] WASCA 139
Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd [1980] FCA 47; (1980) 44 FLR 149; (1980) ATPR 40-161Division: Fair Work Number of paragraphs: 101 Date of hearing: 2 November 2020 & 16 February 2021 Place: Sydney Counsel for the Applicant: Ms E Raper SC, by video Solicitor for the Applicant: Australian Government Solicitor Counsel for the First Respondent: Mr I Latham, by video Counsel for the Third Respondent: Mr R Reitano, by video Solicitor for the First and Third Respondents: Taylor & Scott Lawyers ORDERS
SYG 1018 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: SIMON PASQUALE GUTIERREZ
First Respondent
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
Third Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
25 JANUARY 2022
THE COURT DECLARES THAT:
1.On 21 February 2019, at a site (Site) that formed part of the Westconnex Stage 2: New M5 – Beverly Hills to St Peters Project, the first respondent contravened s 500 of the Fair Work Act 2009 (Cth) (FW Act) by:
(a)saying to two employees of CPB Contractors Pty Ltd (CPB) words to the effect of “shut up” and “fuck off” in an aggressive manner;
(b)speaking in an aggressive and demeaning manner to one of those employees of CPB, including saying words to the effect of “[i]t’s not a fucking IR walk”; and
(c)walking up to the same employee of CPB, standing approximately 20 centimetres away from him, and blowing cigarette smoke in his face.
2.On 21 February 2019 the first respondent contravened s 500 of the FW Act by:
(a)entering into an isolation zone established on the Site in accordance with CPB’s Work Health and Safety Management Plan, without authorisation; and
(b)failing to comply with requests made by an authorised representative of CPB not to do so.
3.The third respondent is a person involved within the meaning of s 550(2) of the FW Act in the first respondent’s contravention identified in declaration 1 and, pursuant to s 550(1) of the FW Act, is taken to have contravened s 500 of the FW Act.
4.The third respondent is a person involved within the meaning of s 550(2) of the FW Act in the first respondent’s contravention identified in declaration 2 and, pursuant to s 550(1) of the FW Act, is taken to have contravened s 500 of the FW Act.
THE COURT ORDERS THAT:
5.Pursuant to s 546(1) of the FW Act the first respondent:
(a)pay a pecuniary penalty in the sum of $6,930 in relation to the contravention identified in declaration 1; and
(b)pay a pecuniary penalty in the sum of $6,930 in relation to the contravention identified in declaration 2.
6.Pursuant to s 546(1) of the FW Act the third respondent:
(a)pay a pecuniary penalty in the sum of $39,650 in relation to the contravention identified in declaration 3; and
(b)pay a pecuniary penalty in the sum of $39,650 in relation to the contravention identified in declaration 4.
7.The first respondent pay the penalties referred to in order 5 to the Commonwealth within 28 days.
8.The third respondent pay the penalties referred to in order 6 to the Commonwealth within 28 days.
THE COURT NOTES THAT:
9.These are orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 21 February 2019, at a site (Site) that formed part of the Westconnex Stage 2: New M5 – Beverly Hills to St Peters Project (Project), the first respondent, Mr Gutierrez, investigated issues concerning access to and egress from the Site. Mr Gutierrez did so in the exercise of rights as the holder of two permits that had been issued to him, one (FW permit) under s 512 of the Fair Work Act 2009 (Cth) (FW Act), and the other (WHS permit) under s 134 of the Work Health and Safety Act 2011 (NSW) (WHS Act). The permits were issued to Mr Gutierrez on the application of the third respondent (CFMMEU); and they were issued to Mr Gutierrez as an official of the CFMMEU.
The applicant (ABCC) alleges that in exercising his rights under the FW and WHS permits Mr Gutierrez acted in an “improper manner”, contrary to s 500 of the FW Act. The ABCC alleges Mr Gutierrez used offensive language, and did so in an aggressive manner; he blew cigarette smoke in a person’s face; he entered an isolation zone that had been established under a work health and safety management plan without authorisation, and having so entered, he failed to comply with a reasonable request from a person who was responsible for safety on the Site. The ABCC also alleges the CFMMEU itself contravened s 500 of the FW Act because Mr Gutierrez’s actions are to be attributed to the CFMMEU, and, for that reason, the CFMMEU, within the meaning of s 550(2) of the FW Act, is a person involved in Mr Gutierrez’s actions and, therefore, by the application of s 550(1) of the FW Act, is taken to have contravened s 500 of the FW Act.
The ABCC made these allegations in a statement of claim lodged on 28 April 2020. After defences and evidence were filed, the parties, which included Mr Adrian Carroll, who was then the second respondent, participated in a mediation. That resulted in the parties agreeing that I make orders permitting the filing of an amended statement of claim, and amended defences. I did so on 13 October 2020. I also directed the parties file submissions on the question of penalty, and I set the matter down to hear submissions on that question. The ABCC filed and served an amended statement of claim by which Mr Carroll was removed as a respondent; and the CFMMEU and Mr Gutierrez filed amended defences in which they admitted the facts alleged in the amended statement of claim. The CFMMEU and Mr Gutierrez accept that the effect of their admissions is that they each contravened s 500 of the FW Act.[1]
[1] The CFMMEU’s acceptance was qualified pending the determination of an application to the High Court for special leave to appeal from the orders made in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203. As I note later in these reasons, the High Court dismissed an application to apply out of time for special leave.
In these reasons for judgment, therefore, I consider the penalties the CFMMEU and Mr Gutierrez should pay for their admitted contraventions of s 500 of the FW Act. Before I do so, I will set out the statutory provisions that are relevant to identifying the nature and scope of the admitted contraventions of s 500 of the FW Act; set out the relevant statutory provisions and principles for assessing penalties for contraventions of civil remedy provisions of the FW Act; and set out the allegations Mr Gutierrez and the CFMMEU admit in their amended defences.
STATUTORY PROVISIONS RELATING TO PERMIT HOLDERS
I begin with s 500 of the FW Act, which provides:
A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
“Permit holder” is defined in s 12 of the FW Act to mean “a person who holds an entry permit”. “Entry permit” is a permit issued by the Fair Work Commission (FWC) under s 512 of the FW Act, which provides:
The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.
“Organisation” is defined in s 12 of the FW Act to mean an organisation registered under the Registered Organisations Act 2009 (Cth) (RO Act).
Next, it is necessary to identify the “rights” denoted by the expression “rights in accordance with this Part”, being Part 3.4 of the FW Act. The rights relate to the investigation by a permit holder of suspected contraventions of three sets of provisions, these being provisions of the FW Act, or of a fair work instrument;[2] provisions of the FW Act or of a fair work instrument as these apply to a “TCF award worker”;[3] or of provisions of a “State or Territory OHS law”.[4] A “State or Territory OHS law” is defined in s 494(3) of the FW Act as a law of a State or Territory prescribed by the regulations. Laws have been prescribed by reg 3.25 of the Fair Work Regulations 2009 (Cth), and these include the WHS Act.
[2] One set of provisions apply to suspected contraventions of the FW Act or of a term of a fair work instrument, these being the provisions in Subdivision A of Division 2 of Part 3.4.
[3] Subdivision AA of Division 2 of Part 3.4. A “TCF award worker” is defined in s 483A(1A) of the FW Act as an employee whose work is covered by a “TCF award”. That expression is defined in s 12 to mean an instrument prescribed by the regulations for the purposes of “this definition”. The instruments have been prescribed by reg 1.08 of the Fair Work Regulations 2009 (Cth).
[4] Subdivision B of Division 2 of Part 3.4
The rights of a permit holder created by Part 3.4 of the FW Act in relation to the investigation of suspected contraventions of the FW Act or of a fair work instrument include those created by s 481(1) of the FW Act. That subsection provides that a permit holder may enter premises and exercise a right under s 482 or s 483 for the purpose of investigating a suspected contravention of the FW Act or a term of a fair work instrument. Section 481 of the FW Act identifies the circumstances in which a permit holder may exercise the rights conferred by s 482 and s 483. The suspected contravention of the FW Act, or of a term of a fair work instrument, must relate to, or affect, a person who is a member of the permit holder’s organisation whose interests the organisation is entitled to represent, and who performs work on the premises in question; the permit holder may investigate a suspected contravention of a fair work instrument only if that instrument applies or applied to the member; and the permit holder must reasonably suspect that a contravention has occurred or is occurring.
Subject to these limitations, s 482(2) of the FW Act provides that a permit holder, “[w]hile on the premises”, may do the following:
(a) inspect any work, process or object relevant to the suspected contravention;
(b) interview any person about the suspected contravention:
(i) who agrees to be interviewed; and
(ii)whose industrial interests the permit holder’s organisation is entitled to represent;
(c) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non‑member record or document) that is directly relevant to the suspected contravention and that:
(i) is kept on the premises; or
(ii) is accessible from a computer that is kept on the premises.
Under s 482(2) of the FW Act, a person is an “affected employer, in relation to an entry onto premises under” Subdivision A of Division 2 of Part 3.4 of the FW Act if:
(a)the person employs a member of the permit holder’s organisation whose industrial interests the organisation is entitled to represent; and
(b) the member performs work on the premises; and
(c) the suspected contravention relates to, or affects, the member.
Subsection 483(1) confers a right on the permit holder to issue a written notice to an affected employer to provide access to a record or document (other than a “non-member record or document”) that is directly relevant to the suspected contravention.
Next, there are the rights of a permit holder in relation to a State or Territory OHS law. The FW Act does not, however, create these rights; it only recognises and identifies them by reference to rights conferred by a State or Territory OHS law, and it limits those rights to ensure that the provisions of the FW Act that apply to any State or Territory OHS law do not exceed the Commonwealth’s legislative power under the Constitution. These things are done in s 494(2) of the FW Act. That subsection first defines a “State or Territory OHS right” as a right “that is conferred by a State or Territory OHS law” to “enter premises, or to inspect or otherwise access an employee records of an employee that is on premises”; and it limits that definition by reference to the location of the premises, and the nature of the entity that occupies or otherwise controls the premises, or which is subject to any requirements that are to be met under a State or Territory OHS law.
The “State or Territory OHS law” that is relevant to these reasons is the WHS Act; and the rights provided for by that Act that are relevant to Part 3.4 of the FW Act are those provided for in Part 7 of the WHS Act. These may only be exercised by a “WHS entry permit holder”. That expression is defined in s 4 of the WHS Act as “a person who holds a WHS entry permit”; and a “WHS entry permit” is defined in s 4 as a “WHS entry permit issued under Part 7” of the WHS Act. Under s 134 of the WHS Act the “authorising authority may issue a WHS entry permit to a person” on an application that has been made under s 131(1) of the WHS Act. Under that subsection, a “union may apply to the authorising authority for the issue of a WHS permit to a person who is an official of the union”. A person who holds a WHS entry permit is entitled to exercise the rights conferred by s 117 of the WHS Act, which provides as follows:
(1)A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.
(2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.
“Relevant worker”, in relation to a workplace, is defined in s 116 of the WHS Act to mean a worker:
(a) who is a member, or eligible to be a member, of a relevant union, and
(b) whose industrial interests the relevant union is entitled to represent, and
(c) who works at that workplace.
“Relevant union” is defined in s 116 of the WHS Act to mean “the union that a WHS entry permit holder represents”.
I return to s 500 of the FW Act. It applies to a person who is the holder of a FW permit; and it applies to such person only where the person is exercising or seeking to exercise rights in accordance with Part 3.4 of the FW Act. A person will contravene s 500 if, in so exercising, or seeking to exercise, rights under Part 3.4 of the FW Act, the permit holder either intentionally hinders or obstructs a person, or otherwise acts “in an improper manner”.
The expressions “exercising . . . rights”, “seeking to exercise, rights”, and “in accordance with this Part” were considered by the Full Federal Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case).[5] One of the questions in that case was whether a permit holder who entered premises for the purpose identified in s 484 of the FW Act without having first given the notice required by s 487(1)(b) of the FW Act exercised or sought to exercise rights for the purposes of s 500 of the FW Act. The Full Federal Court held that the rights provided for by s 484 of the FW Act was not conditioned on the permit holder first complying with s 487(1)(b).[6] The Full Federal Court also held that “seeking” should be given its ordinary meaning of “trying” or “attempting” to do or achieve something.[7] Finally, the Full Federal Court construed “in accordance with” to mean “covered by” or “under”. That implies that the expression “exercising, or seeking to exercise, rights” means doing the things, or seeking to do the things, that a number of provisions in Part 3.4 of the FW Act entitle a permit holder to do. In the case of s 481 of the FW Act, the acts consist of entering premises and doing the things described in s 482 and s 483 of the FW Act.
[5] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88
[6] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88, at [1], [51]-[72], and [179]
[7] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88, at [1], [86]-[98], and [180]
There is also the expression “in an improper manner” which the Full Federal Court considered in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case).[8] The Full Federal Court said:[9]
[8] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15
[9] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15, at [37]-[52]
The improper acts, comprehended by s 500, are acts other than those involving obstruction or hindering. It is not necessary that the acts were intended to be improper . . .
All parties accepted that an objective assessment of Mr Tadic’s actions was needed to determine their propriety. They were correct to do so. As Mansfield J held in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106]-[107]:
106Consequently, as they were seeking to exercise powers under Pt 3-4 of the FW Act, s 500 may be contravened when their conduct exceeds that authorised by the exercise of those rights. Section 500 requires an objective assessment or determination whether there was conduct or action of an improper manner. It does not depend upon intention.
107In R v [Byrnes] and Hopgood (1995) 183 CLR 501, the High Court said in the majority judgment at 514-515:
Impropriety does not depend on an alleged offender’s consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged defendant by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case. When impropriety is said to consist in an abuse of power, the state of mind of the alleged offender is important: the alleged offender’s knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power are important factors in determining the question whether the power has been abused. But impropriety is not restricted to an abuse of power. It may consist in the doing of an act which a director or officer knows or ought to know that he has no authority to do.
(Emphasis added.)
In Director of the Fair Work Building Industry Inspectorate v Bragdon (2015) 147 ALD 373 at 394; [2015] FCA 668 at [97] Flick J held that “improper conduct” is conduct “which falls below that standard which can reasonably be expected of those who occupy positions of responsibility”.
As Barker J pointed out in Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (2017) 270 IR 190 at 231; [2017] FCA 847 at [169]-[170] the dictionary definition of “manner” refers to a “way of doing, being done, or happening; mode of action, occurrence, etc”. As a result, what the actor said “and its effect, and how he spoke, all may potentially comprise conduct falling under the ruling ‘act in an improper manner’”.
The question for the trial judge was whether Mr Tadic’s impugned conduct breached the standards that would be expected of a union official by reasonable persons with relevant knowledge of the duties of such an official in respect of the maintenance of health and safety on construction sites.
Thus, whether Mr Gutierrez acted in an improper manner turns on whether any of the admitted acts alleged against him breached the standards that would be expected of a union official by reasonable persons with relevant knowledge of the duties of such an official in respect of the maintenance of health and safety on construction sites.
Finally, it is necessary to note that not only a permit holder, but also the organisation of which the permit holder is an officer, can contravene s 500 of the FW Act. The organisation can so contravene s 500 by being a person involved, within the meaning of s 550(2) of the FW Act, in the permit holder’s contravention of s 500 of the FW Act. One way in which it has been held a permit holder’s organisation’s involvement in the permit holder’s contravention of s 500 can be established is by attributing to the organisation under s 793(1) of the FW Act the acts of the permit holder that constitute the permit holder’s contravention of s 500, together with the permit holder’s state of mind that accompanied those acts. Subsection 793(1) provides:
Any conduct engaged in on behalf of a body corporate:
(a)by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
The means by which s 793(1) of the FW Act is available to attribute to an organisation the acts of a permit holder that constitute a contravention of s 500 of the FW Act was described by the Full Federal Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) as follows:[10]
With those principles in mind, we turn to the particular accessorial liability which arises in this appeal. It has three features. First, it involves accessorial liability by the CFMMEU, a corporate person, for the direct, or principal, contraventions of the FW Act by its officials, all of whom are natural persons. Secondly, all but one of those officials (the third to eighth appellants) were concurrently permit holders under the FW Act. As earlier explained, only a permit holder can contravene ss 497 and 500 of the FW Act. The second appellant, who did not have a permit, was found to have contravened s 494, a provision that can only be contravened by an official. Thirdly, therefore, the natural persons who committed the principal contraventions, and the natural persons whose conduct and state of mind was attributed to the CFMMEU under s 793, for the purposes of s 550, namely its officials, were one and the same persons. This combination of features is, in our view, sufficient to find the CFMMEU accessorily liable for the contraventions. As Charlesworth J explained in McDermott (at [121]):
To the extent that it is necessary to show that CFMEU involved itself in some tangible way in the contraventions of its officials, there is no reason why s 793 should not facilitate proof of that requirement. Section 793 is premised on an accepted fiction that a body corporate is a separate legal entity from those who participate in it: Salomon v A Salomon & Company Ltd [1897] AC 22. Accepting that fiction, it does not matter that the deemed physical acts of the secondary participant are the same acts in fact engaged in by the primary contravener. CFMEU did not make any submission to the contrary. Accordingly, the physical acts of Mr McDermott and Mr Cartledge are, in each instance, taken also to be the acts of CFMEU. That is sufficient to demonstrate CFMEU’s participation in each contravention.
STATUTORY PROVISIONS AND PRINCIPLES
[10] Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203, at [51]. An application for an extension for time to apply for special leave to the High Court was refused on 8 April 2021 - Construction, Forestry, Maritime, Mining and Energy Union & Ors v Australian Building and Construction Commissioner & Anor [2021] HCASL 60.
Power
Subsection 546(1) of the FW Act empowers this Court, on application, to 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. 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).”
Under s 12 of the FW Act, “penalty unit” has the meaning given by s 4AA of the Crimes Act 1914 (Cth) (Crimes Act). Subsection 539(2) of the FW Act identifies s 500 as a civil remedy provision and assigns 60 penalty units of its contravention. Further, as at 21 February 2019, $210 was the penalty unit prescribed by s 4AA of the Crimes Act.
Assessing penalties for multiple contraventions of s 500 of the FW Act
The ABCC alleges that Mr Gutierrez’s admitted acts constitute at least two contraventions of s 500 of the FW Act. Given that s 557(2) of the FW Act does not specify s 500 as a civil remedy provision to which s 557(1) applies, it is not open to consider whether s 557(1) of the FW Act applies to multiple contraventions of s 500 of the FW Act. That does not necessarily mean, however, that the matters that would attract s 557(1) to multiple contraventions of s 500, if that section were identified in s 557(2), are not relevant to the assessment of penalties for such multiple contraventions. Those matters may become relevant by the operation of two sets of principles. The first is often described as the “one transaction principle” or the “course of conduct principle”; and the second is the related, but distinct, principle known as the “totality principle”.
The “one transaction principle” was described by Owen JA in Royer v The State of Western Australia as follows:[11]
At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.
[11] Royer v The State of Western Australia [2009] WASCA 139, at [22]
Lockhart J stated the principle in the context of the imposition of penalties for contraventions of provisions of the Trade Practices Act 1974 (Cth) in Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd:[12]
Guidance is given in the field of sentencing for criminal offences by the well-known principle that where several offences are heard together and arise out of the same transaction it is a sound working rule that the sentences imposed for those offences should be made concurrent; it is inappropriate to sentence consecutively when the offences were all really involved in the same episode . . .
[12] Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd [1980] FCA 47; (1980) 44 FLR 149; (1980) ATPR 40-161, at 42, 277
Under the “totality principle” a sentencing judge is required “to impose a sentence or sentences which reflect the overall criminality of the offending for which the offender has been convicted”.[13] In R v Holder & Johnston Street CJ described the principle as follows:[14]
The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
[13] Contin v The Queen [2012] VSCA 247, at [38]
[14] R v Holder& Johnston [1983] 3 NSWLR 245, at 260
In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union, the Full Federal Court held that the “one transaction principle” and the “totality principle” were relevant to the assessment of penalties for the contravention of civil remedy provisions contained in the (now repealed) Building and Construction Industry Improvement Act 2005 (Cth) which did not contain an equivalent s 557 of the FW Act. In relation to the “one transaction principle” the Full Federal Court said:[15]
There is no doubt that, in an appropriate case involving multiple contraventions, the Court should consider whether the multiple contraventions arose from a course or separate courses of conduct. If the contraventions arose out of a course of conduct, the penalties imposed in relation to the contraventions should generally reflect that fact, otherwise there is a risk that the respondent will be doubly punished in respect of the relevant acts or omissions that make up the multiple contraventions.
[15] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, at [148]
The Full Federal Court has also held, however, that the “one transaction principle” and the “totality principle” are relevant to assessing a pecuniary penalty only after a penalty has been (provisionally) assessed for each contravention. The Full Federal Court said:[16]
The important point to emphasise is that, contrary to the Commissioner’s submissions, neither the course of conduct principle nor the totality principle, properly considered and applied, permit, let alone require, the Court to impose a single penalty in respect of multiple contraventions of a pecuniary penalty provision.
[16] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, at [148]
The Full Federal Court also said:[17]
The totality principle, like the course of conduct principle, has its origins in criminal sentencing . . . .
The totality principle is sometimes confused or conflated with the course of conduct principle. That is perhaps not surprising because application of the totality principle may again result in a court adjusting what would otherwise have been consecutive or cumulative sentences to sentences that are wholly or partially concurrent. The proper approach, however, is to first consider the course of conduct principle and determine whether the sentences should be consecutive, or wholly or partly concurrent. Once that is done, the Court should then review the aggregate sentence to ensure that it is just and appropriate. That may require a further adjustment of the sentences: either by ordering further concurrency or, if appropriate, lowering the individual sentences below what would otherwise be appropriate.
While, in the criminal sentencing context, the totality principle is generally applied in cases involving sentences of imprisonment, it has been held to apply to the fixing of fines . . . . In the case of fines, the Court must fix a fine for each offence and then review the aggregate to ensure that it is just and appropriate. If the result of the aggregation of multiple fines is that the penalty is excessive, that may lead to the moderation of the fine imposed in respect of each offence . . . .
Once again, the important point to emphasise is that, in the criminal sentencing context, application of the totality principle does not authorise or permit the sentencing court to impose a single sentence for multiple offences.
[17] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, at [116]-[119] (citations omitted). See also Australian Building and Construction Commissioner v Menon [2020] FCA 1418, at [80] where White J said: “the principle does not permit the Court to impose a single penalty in respect of multiple contraventions of a pecuniary penalty provision. Each contravention continues to attract its own separate penalty.”
Thus, in assessing penalties for multiple contraventions of s 500 of the FW Act, the Court must first assess provisionally a penalty for each contravention, considered alone; and then consider whether factual elements of the contraventions overlap such as to warrant the conclusion that the contraventions arise substantially out of the same acts or omissions and, for that reason, require a downward adjustment to the provisional penalties that have been assessed for each contravention. Separately from these two tasks, the Court must then determine whether the penalties, considered as an aggregate, is just and appropriate having regard to the conduct that constitutes the contraventions, considered as a whole.
Assessing penalty for single contravention – object of assessment
When assessing the amount of the pecuniary penalty, 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 said:[18]
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 contravener 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.
[18] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, at [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, Mining and Energy Union (references omitted):[19]
[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.
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”. 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”.
[19] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3, at [116] (Keane, Nettle and Gordon JJ) (citation omitted)
Assessing penalty for single contravention – factors
In Kelly v Fitzpatrick,[20] Tracey J adopted what Mowbray FM in Mason v Harrington Corporation Pty Ltd identified as “a non-exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty”.[21] The Full Federal Court identified those factors in The Non-Indemnification Personal Payment Case as follows:[22]
Relevant factors in the overall assessment of penalty were helpfully listed by French J in CSR. They have been adopted in many cases. For present purposes, they can be restated as follows: the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; and, any co-operation with the regulator and contrition.
[20] Kelly v Fitzpatrick [2007] FCA 1080, at [14]
[21] Mason v Harrington Corporation Pty Ltd [2007] FMCA 7, at [24]
[22] Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97, at [20]
In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union the Full Federal Court provided the following guidance to assessing penalties:[23]
The fixing of a pecuniary penalty involves the identification and balancing of all the factors relevant to the contravention and the circumstances of the defendant, and making a value judgment as to what is the appropriate penalty in light of the protective and deterrent purpose of a pecuniary penalty.
In general terms, the factors that may be relevant when fixing a pecuniary penalty may conveniently be categorised according to whether they relate to the objective nature and seriousness of the offending conduct, or concern the particular circumstances of the defendant in question.
The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the defendant is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.
The factors that concern the particular circumstances of the defendant, particularly where the defendant is a corporation, generally include: the size and financial position of the contravening company; whether the company has been found to have engaged in similar conduct in the past; whether the company has improved or modified its compliance systems since the contravention; whether the company (through its senior officers) has demonstrated contrition and remorse; whether the company had disgorged any profit or benefit received as a result of the contravention, or made reparation; whether the company has cooperated with and assisted the relevant regulatory authority in the investigation and prosecution of the contravention; and whether the company has suffered any extra-curial punishment or detriment arising from the finding that it had contravened the law.
[23] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, at [100], [102]-[104] (citations omitted)
It would also be useful to refer to what the Full Federal Court said in the context of assessing pecuniary penalties for contraventions of the Trade Practices Act 1974 (Cth) in Flight Centre Limited v Australian Competition and Consumer Commission (No 2):[24]
[T]he task is one that is evaluative, taking into account all the circumstances of the case, not to be reached mechanically or by some illusory process of exactitude, but rather by evaluation that is articulated to a point (but no further) that is useful and meaningful. One starts the process by giving proper weight to the statutory maximum as referable to the most serious kind of contravention.
[24] Flight Centre Limited v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53, at [55]
It is necessary to say something about the relevance of the maximum penalty. The Full Federal Court considered the relevance of the maximum penalty in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case):[25]
[25] Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97, at [26] and [27]
It is necessary to have regard to the maximum penalty. In Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at 63 [154]-[156], the Full Court said:
154In considering the sufficiency of a proposed civil penalty, regard must ordinarily be had to the maximum penalty. In Markarian, a criminal sentencing context, it was observed at [31] that:
careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
155The reasoning in Markarian about the need to have regard to the maximum penalty when considering the quantum of a penalty has been accepted to apply to civil penalties in numerous decisions of this Court both at first instance and on appeal (Director of Consumer Affairs, Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118 at [43]; Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52; (2014) ATPR 42-470 at [50]-[52]; Setka v Gregor (No 2) [2011] FCAFC 90; (2011) 195 FCR 203 at [46]; McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29; (2011) 202 IR 467 at [28]-[29]). As Markarian makes clear, the maximum penalty, while important, is but one yardstick that ordinarily must be applied.
156Care must be taken to ensure that the maximum penalty is not applied mechanically, instead of it being treated as one of a number of relevant factors, albeit an important one. Put another way, a contravention that is objectively in the mid-range of objective seriousness may not, for that reason alone, transpose into a penalty range somewhere in the middle between zero and the maximum penalty. Similarly, just because a contravention is towards either end of the spectrum of contraventions of its kind does not mean that the penalty must be towards the bottom or top of the range respectively. However, ordinarily there must be some reasonable relationship between the theoretical maximum and the final penalty imposed.
These considerations, especially those in [156], will be affected by the level of deterrence recognised as necessary, in part from any history of contravening conduct.
I must also say something about the notion of “proportionality” in the context of a contravention by a person who has a history of contravening conduct, and, more particularly, about the relevance or potential relevance of the contravener’s past contraventions to the assessment of a penalty for a particular contravention of the FW Act. These questions were considered by the Full Federal Court in Pattinson v Australian Building and Construction Commissioner.[26] The Full Federal Court said:[27]
If one accepts, as in our view one must by a reading of s 546 in the light of the Agreed Penalties Case (HC), that the penalty is imposed to deter, that it is imposed for the instant contravention and not for past (already penalised) contraventions or past (unpenalised, but unpleaded) contraventions, and (as one takes from s 546 and from the Full Court decisions set out at [98] above) that the penalty is set at what is considered appropriate to deter contravention of such kind, guided by the statutory maximum penalty, but not at a level reasonably thought to exceed that purpose and thus be oppressive, one sees a notion of proportionality within the task set out in s 546. That task, of course, is the imposing of an “appropriate” penalty for the instant contravention to serve the object of deterrence from repetition of like contravening in the future. Proportionality and appropriateness are thus intimately related. Proportionality is not a free-standing principle separate from the requirement of what is “appropriate”, rather it is part of that assessment which will necessarily involve examining the nature of the contravention, and all factors that rationally bear on the assessment of the need for deterrence in all the circumstances.
[26] Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177. Special leave to appeal has been granted, and the High Court heard the appeal on 7 December 2021 and has reserved judgment - Australian Building and Construction Commissioner v Pattinson & Anor [2021] HCATrans 211.
[27] Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177, at [104]
The Full Federal Court found that the primary judge erred because he ordered the maximum penalty for contraventions of the FW Act by relying on the contravener’s previous contraventions, rather than assessing the circumstances of the contraventions in question, to conclude that the contraventions would be treated as of the worst category, or warranting the maximum penalty, irrespective of the nature and the character of the conduct that constituted the contraventions in question: [28]
The error of the primary judge here, being the error of the majority in Broadway on Ann, was that in the name of utilising a notion of recidivism of the union it was seen as in accordance with principle to impose a penalty at the highest level because of the number of prior contraventions, in what was said to be the demonstrated intention of promoting a no-ticket no-start policy, but without any real evaluation of, or weight being given to, the objective characteristics of what occurred as part of the assessment of what was the subject contravention of the penalty to be imposed. Thus, the penalty for the instant contravention became subsumed by a proposition that the time had come, once the perceived threshold level of prior contravening was reached, that henceforth all contraventions would be treated as of the worst category or warranting the maximum penalty, irrespective of the nature and the character of the human conduct that constituted the contravention in question. This can be seen in the approach of the primary judge at [71], [72], [83] and [84] set out above. The past has been used beyond the point of characterising the nature of the contravening (which is the subject of the imposition of the penalty) and has become the reason for the maximum penalty irrespective of the nature and seriousness of the instant contravening. To ask the rhetorical question in the last sentence of [72] of the primary judge’s reasons as a supporting proposition is to raise the object of the imposition of the penalty to a justification for ignoring the nature of the contravening, and so to impose the penalty because of, and framed by, only the past. This is not to use, but to jettison, a notion of proportionality by setting to one side the nature of the conduct that comprised the contravention. The penalty becomes imposed not for the instant contravention but, to some degree, for the past, again. This approach elevated past offending to be the defining consideration of the character or gravity of the contravening, irrespective of the actual reality of what constituted the contravention. It was not an assessment of the gravity of the circumstances, including (but not limited to or defined by) what could be drawn legitimately and contextually as to the instant contravention from past contraventions; rather, it was to draw from the past a conclusion that, regardless of how objectively serious or not the conduct in question was otherwise, the maximum penalty should henceforth be imposed.
[28] Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177, at [104]
The ABCC was granted special leave to appeal to the High Court, and the High Court heard the appeal on 7 December 2021.[29] The questions on the appeal appear to be whether the Full Federal Court held that a maximum penalty may be ordered only for contraventions of the most serious and grave kind, and that it was not open to impose the maximum penalty for a contravention which was not of that nature, even if the Court was of the view that the imposition of the maximum penalty was necessary to deter the contravener from repeating contraventions that are not of the most serious and grave kind; and, if so, whether the Full Federal Court erred in so holding.
[29] Australian Building and Construction Commissioner v Pattinson & Anor [2021] HCATrans 211
The determination of these questions by the High Court will not have any bearing on how I should assess penalties in this case, and in particular, on the relevance I should attach to the CFMMEU’s extensive history of contravening conduct which the ABCC submits is relevant to assessing the appropriate penalty. First, the ABCC accepts that a penalty should be proportionate to the contravening conduct, even where the contravener has an extensive history of contravening conduct.[30] Second, the Full Federal Court in Pattinson did not hold that specific and general deterrence are not relevant to assessing a penalty; it held that past contravening conduct was potentially relevant to assessing the character of the nature of the contravening conduct,[31] and to assessing whether there is a sufficient probability the contravener will engage in the same contravening conduct such as to warrant including in the penalty a component for specific deterrence.[32] Third, the specific error the Full Federal Court in Pattinson found the primary judge made was not that he imposed the maximum penalty for contravening conduct that was not of the most serious and grave kind; the Full Federal Court found the primary judge erred because he imposed the maximum penalty on the basis of the contravener’s history of contraventions without assessing the character of the conduct that constituted the contraventions in question. Thus, to the extent the Full Federal Court is held to have been of the view that a maximum penalty is reserved for contraventions of the most serious and grave kind, that was not the basis on which it upheld the appeal. It would therefore not be a principle that is binding on this Court.
[30] Applicant’s submission on penalty, [24]; Applicant’s reply submissions on penalty, [6]-[11]
[31] Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177, at [194]
[32] Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177, at [57], [191]
ADMITTED FACTS
I will now set out the admitted facts.
The parties
The ABCC was appointed as such pursuant to s 21(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act). Under s 66(3) of the BCIIP Act the ABCC is an “Australian Building and Construction Inspector” and, under s 111(1) of the BCIIP Act, the ABCC has the same authority as a Fair Work Inspector under the FW Act to apply to, or otherwise institute proceedings in, a court under the FW Act; and, for these reasons, the ABCC has standing under s 539 of the FW Act to bring this proceeding.[33]
[33] ASC, [1]
The CFMMEU is an organisation registered under s 26 of the RO Act and, as a consequence, under s 27 of that Act, is a body corporate capable of suing and being sued. Further, the CFMMEU is as industrial association of employees whose rules allow membership by building employees within the meaning of s 5 of the BCIIP Act.[34]
[34] ASC, [3]
At all relevant times Mr Gutierrez was an employee of the CFMMEU, and an “official” and “officer” of the CFMMEU within the meaning of those expressions as defined in s 12 of the FW Act. Mr Gutierrez was also the holder of an entry permit issued under s 512 of the FW Act (being the FW permit), and the holder of an entry permit issued under s 134 of the WHS Act (being the WHS permit). The FW and the WHS permits were issued to Mr Gutierrez on 6 August 2018 and 19 June 2018 respectively.[35]
[35] ASC, [2]
The Project
The Project involved the construction of twin underground motorway tunnels between Kingsgrove and St Peters in New South Wales (tunnel construction works), and associated civil works.[36] The tunnel construction works were performed in part from the Arncliffe Motorway Operation Centre (MOC 3) at 19 Marsh Street, Arncliffe, New South Wales (this being the Site).[37]
[36] ASC, [4]
[37] ASC, [5]
The principal contractor for the design and construction of the Project was a joint venture (CDS-JV) between CPB Contractors Pty Limited (CPB), Dragados Australia Pty Ltd (Dragados), and Samsung C&T Corporation (Samsung).[38] CPB was the principal contractor in relation to the Project within the meaning of reg 293 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation). Further, CPB was in charge of the Site, and exercised substantial control over the activities on the Site.[39]
[38] ASC, [8]
[39] ASC, [9]
Site health and safety procedures
As at 21 February 2019 the “Work Health and Safety Management Plan”, revision 6, dated 28 September 2018 (WHS Management Plan) applied to the Site. Clause 4 of the WHS Management Plan provided that:
(a)CPB had in place “a suite of controls for critical safety risks that have been identified through data analysis that would have given rise to the potential for serious injury, if they were not understood and had appropriate controls in place”, called “Safety Essentials”;
(b)the Safety Essentials were “minimum, non-negotiable requirements to manage Safety Essential related tasks” on the Project;
(c)there was a hierarchy of preferred controls for Safety Essential related tasks, being (in order):
(i)eliminate the hazard by removing it;
(ii)substitute the hazard and replace with a safer option;
(iii)isolate the hazard by guarding or enclosing it; and
(iv)engineer the hazard by modifying equipment or work process;
(d)the Safety Essential related tasks included:
(i)working near live traffic;
(ii)mobile cranes and lifting operations; and
(iii)working in and around mobile plant; and
(e)‘high risk work tasks’ included:
(i)“[w]orking near live traffic”;
(ii)“[w]orking in and around mobile plant and equipment”; and
(iii)“[t]raffic corridor that is in use by traffic other than pedestrians”.
As at 21 February 2019 Mr Raymond Forde, an employee of CPB, held the position of Project Manager for the Project.[40] As Project Manager Mr Forde was subject to key accountabilities that included the following:[41]
(a)ensure the development and implementation of a positive safety culture across the Project;
(b)perform and verify the implementation, monitoring, and documentation of “SWMS’s” (that is, safe work method statements) and procedures in various work areas; and
(c)lead the reporting of all health or safety breaches in compliance with relevant procedures.
[40] ASC, [13(c)]
[41] ASC, [13(b)]
As at 21 February 2019 Mr Graeme Sibbitt, an employee of CPB, held the position of Senior Safety Advisor for the Project.[42] As Senior Safety Advisor Mr Sibbitt was subject to key accountabilities that included the following:[43]
(a)monitor compliance with the safety systems and procedures within the workplace;
(b)conduct routine safety inspections and monitoring work areas;
(c)lead by example in all areas of the project regarding safety; and
(d)ensure compliance with all relevant legal and regulatory requirements and all relevant Company and Group policies and processes.
Events of 21 February 2019
[42] ASC, [14(c)]
[43] ASC, [14(b)]
CFMMEU officials enter Site
At approximately 7.03 am on 21 February 2019, Mr Carroll and another official of the CFMMEU, Mr Rebel Hanlon entered the Site through the Site entrance.[44] At that time Mr Carroll had not completed a Site safety induction.[45] At approximately 7.40 am on 21 February 2019 Mr Carroll and Mr Hanlon attended the office of Mr Forde, and told him they had received a complaint about access to and egress from the Site. Mr Carroll and Mr Hanlon presented to Mr Forde FW and WHS permits they each held.[46]
[44] ASC, [15]
[45] ASC, [12]
[46] ASC, [16]
Discussion about access and egress
At approximately 7.50 am on the same day Mr Gutierrez entered the Site through the Site entrance, and attended Mr Forde’s office where Mr Gutierrez presented the FW and WHS permits he held.[47] At that time Mr Gutierrez had not completed a Site safety induction.[48]
[47] ASC, [17]
[48] ASC, [12]
At approximately 8.00 am, Mr Forde escorted Mr Gutierrez, Mr Carroll, and Mr Hanlon to the Site crib rooms.[49] Mr Hanlon addressed workers who were in the vicinity of the crib rooms, during which he stated that CPB should be providing full undercover walkways on the Site.[50] Mr Hanlon spoke to Mr O’Neill, who was CPB’s Senior Supervisor, requesting that CPB install covered walkways on the Site, including from the main Site office to provide dry access in the event of wet weather.[51]
[49] ASC, [18]
[50] ASC, [19]
[51] ASC, [20]
At around 8.20 am CPB’s Employee Relations Coordinator, Mr Tan Truong, joined the group that had assembled near the crib rooms; and Mr Sibbitt joined the group shortly after.[52] At approximately 10.00 am Mr Forde, Mr Truong, Mr Sibbitt, Mr O’Neill, Mr Gutierrez, Mr Carroll, and Mr Hanlon walked to the Site office.[53]
[52] ASC, [21]
[53] ASC, [22]
At the Site office:[54]
(a)Mr Gutierrez, Mr Carroll, and Mr Hanlon requested copies of the Site Environmental Management Plan, Vehicle Movement Plan (VMP), Site induction document, Emergency Response Plan, and fire extinguisher register (requested documents);
(b)Mr Forde showed Mr Gutierrez, Mr Carroll, and Mr Hanlon a copy of the VMP;
(c)Mr Hanlon said words to the effect that 10 km/h speed signs (speed signs) were not present in the location where the VMP said they would be; and
(d)Mr Sibbitt offered to show Mr Gutierrez, Mr Carroll and Mr Hanlon the speed signs.
[54] ASC, [23]
Viewing of speed signs
At approximately 11.15 am Mr Sibbitt escorted Mr Gutierrez and Mr Carroll to the Site entrance, and showed them the speed signs located there.[55] Mr Sibbitt requested that Mr Gutierrez and Mr Carroll return to the Site office to view the rest of the requested documents. Mr Gutierrez and Mr Carroll, however, refused to comply with Mr Sibbitt’s request.[56] Mr Truong joined Mr Sibbitt, Mr Gutierrez, and Mr Carroll, after which an exchange to the following effect took place:[57]
Mr Sibbitt: You have to return to the site office. It is a reasonable request.
Mr Carroll:No, we have seen workers walking through a puddle of water.
Mr Truong: What’s the safety risk?
Mr Gutierrez: They could get wet.
Mr Sibbitt: We have given you reasonable direction to return to the Site office to review the requested documentation. [No response.] I ask you again to return to the Site office to review the documents you requested.
[55] ASC, [25]
[56] ASC, [26], [27]
[57] ASC, [28], [29]
During the following period of approximately five minutes, Mr Sibbitt repeated his request that Mr Gutierrez and Mr Carroll return to the Site office on approximately 10 occasions. On each occasion Mr Gutierrez and Mr Carroll refused to comply with Mr Sibbitt’s request. During this period Mr Gutierrez:[58]
(a)said to Mr Sibbitt and Mr Truong words to the effect of “shut up” and “fuck off” in an aggressive manner; and
(b)lit a cigarette and started smoking.
[58] ASC, [30]-[32]
Site walk
At approximately 11.36 am Mr Gutierrez and Mr Carroll walked out of a pedestrian access gate on to the pedestrian crossing across the main haul road.[59] At that time:[60]
(a)live plant, which included forklifts, excavators, and articulated haul trucks (Moxys), was travelling along the main haul road;
(b)a forklift was undertaking jersey works at the other end of the pedestrian crossing, which involved moving one of the concrete barriers that separated the pedestrian walkway on the other side of the crossing from the main haul road;
(c)the jersey works were a Safety Essentials related task in accordance with the WHS Management Plan; and
(d)the segment of the pedestrian crossing into which Mr Gutierrez and Mr Carroll were walking was in the vicinity of the forklift undertaking the jersey works, and in an isolation zone in accordance with the hierarchy of controls for Safety Essentials related tasks in the WHS Management Plan.
[59] ASC, [34]
[60] ASC, [35]
Mr Sibbitt yelled at the workers undertaking the jersey works to stop work because an unauthorised person was in their work area; and Mr Sibbitt yelled at Mr Gutierrez and Mr Carroll not to proceed any further and that they were in breach of Site safety rules.[61] Mr Gutierrez and Mr Carroll, however, continued walking across the pedestrian crossing, and Mr Sibbitt, Mr Truong, and Mr Forde followed them.[62] Mr Forde said to Mr Gutierrez words to the following effect:[63]
You can’t just walk across the Site as you please. You don’t have the correct PPE [personal protective equipment]. No one inducted you to access these excluded areas.
[61] ASC, [36]
[62] ASC, [37]
[63] ASC, [38]
Mr Gutierrez and Mr Carroll walked up to the secondary haul road, crossed it, moved a plastic barrier, and walked into the construction area to the north of the secondary haul road (construction area).[64] During the following period of approximately one hour:[65]
(a)Mr Sibbitt repeatedly requested Mr Gutierrez and Mr Carroll return to the Site office;
(b)Mr Gutierrez and Mr Carroll walked around the construction area;
(c)Mr Gutierrez and Mr Carroll asked questions of Mr Sibbitt and Mr Forde regarding delineation; and
(d)Mr Forde directed workers in the vicinity of where Mr Gutierrez and Mr Carroll were walking to stop work until they left the area; and to undertake works to create a safe pathway for Mr Gutierrez and Mr Carroll, including creating walkways and setting up metal barriers.
[64] ASC, [39]
[65] ASC, [40]
While Mr Gutierrez and Carroll walked around the construction area:[66]
(a)Mr Truong was taking notes of what Mr Gutierrez and Mr Carroll were doing;
(b)Mr Gutierrez walked up to Mr Truong, stood approximately 20 centimetres away from Mr Truong and blew cigarette smoke in his face; and
(c)Mr Gutierrez spoke in an aggressive and demeaning manner to Truong, including saying words to the effect of “[i]t’s not a fucking IR walk”.
[66] ASC, [41]
Mr Sibbitt, Mr Truong, Mr Forde, Mr Gutierrez and Mr Carroll returned to the Site office at approximately 12.45 pm; Mr Carroll left the Site at approximately 12.51 pm; and Mr Gutierrez left the Site at approximately 1.03 pm.[67]
[67] ASC, [42], [43]
WHS notice
On 5 March 2019 Mr Carroll emailed to Mr Truong a document titled “Work Health and Safety Notice” which recorded the following:
(a)it was issued to Mr Forde;
(b)the date of entry as 21 February 2019;
(c)the name of the workplace as “Arncliffe MOC 3”;
(d)the names of the entry permit holders as Mr Hanlon, Mr Carroll, and Mr Gutierrez;
(e)that notice was given pursuant to s 119 of the WHS Act:
(i)“of my/our entry to the workplace under s 117 of the [WHS Act]”; and
(ii)“that I/we reasonably suspect that a contravention of the [WHS Act] has occurred or is occurring at the workplace”
Access/Egress WHS Act 20 WHS Reg C 40
Traffic management WHS Act s 19 WHS C219/315
WHAT ARE THE CONTRAVENTIONS?
There is no dispute Mr Gutierrez entered the Site and engaged in the activities on the Site alleged in the amended statement of claim in the exercise of rights he held as the holder of the FW and WHS permits. Nor is there a dispute about the acts of Mr Gutierrez that constituted a contravention by him of s 500 of the FW Act. There are two sets of acts.
(a)The first (Contravention 1) consists of the acts alleged in paragraphs 32(a) and 41(b) and (c) of the amended statement of claim. These are the use of words on two occasions during Mr Gutierrez’s presence on the Site; the first consist of Mr Gutierrez telling Mr Sibbitt and Mr Truong at approximately 11.15 am words to the effect of “shut up” and “fuck off” in an aggressive manner in response to Mr Sibbitt’s repeated requests that Mr Gutierrez and Mr Carroll return to the Site office. The second consist of Mr Gutierrez walking up to Mr Truong, who was then taking notes of what Mr Gutierrez and Mr Carroll were doing, and, when standing approximately 20 centimetres away from Mr Truong, blew cigarette smoke in Mr Truong’s face, and spoke in an aggressive and demeaning manner to Mr Truong, including saying words to the effect of: “[i]t’s not a fucking IR walk”.
(b)The second contravention (Contravention 2) consists of the acts alleged in paragraphs 35, 36, and 37 of the amended statement of claim. These are Mr Gutierrez walking through a pedestrian access gate on to the pedestrian crossing across the main haul road at a time that live plant was travelling along the main haul road and where a forklift was undertaking jersey works at the other end of the pedestrian crossing, and Mr Gutierrez (together with Mr Carroll) continuing to walk across the pedestrian crossing after Mr Sibbitt yelled at the workers undertaking jersey works to stop work because an unauthorised person was in their work area, and after Mr Sibbitt yelled at Mr Gutierrez (and Mr Carroll) not to proceed further, and that they were in breach of Site safety rules.
Mr Gutierrez submits that s 556 of the FW Act applies to these contraventions.[68] Section 556 of the FW Act provides:
If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.
[68] First Respondent’s Outline of Submissions on Penalty, [31]
The effect of s 556 of the FW Act is that where “particular conduct” constitutes a contravention of two or more civil remedy provisions the person who engages in the conduct can only be liable to the imposition of one pecuniary penalty. Section 556 does not apply to the circumstances in this case, because it is not alleged Mr Gutierrez’s actions constituted a contravention of two or more provisions of the FW Act. The amended statement of claim alleges that Mr Gutierrez engaged in two distinct sets of acts, each of which contravened one provision of the FW Act, namely, s 500.
At the hearing counsel for the CFMMEU accepted that, on the authority of The Bruce Highway Caloundra to Sunshine Upgrade Case,[69] the acts of Mr Gutierrez were to be attributed to the CFMMEU under s 793(1) of the FW Act and, on the basis of that attribution, the CFMMEU would be a person involved in Mr Gutierrez’s contraventions within the meaning of s 550(2) of the FW Act and, under s 550(1), be to have also contravened s 500. Counsel for the CFMMEU informed me that the CFMMEU intended to apply for special leave to appeal to the High Court against the Full Federal Court’s orders in The Bruce Highway Caloundra to Sunshine Upgrade Case. The CFMMEU applied to the High Court for an extension of time to apply for special leave but, on 8 April 2021, the High Court refused the application.[70] Thus, the position is that the admitted acts of Mr Gutierrez that constitute a contravention of s 500 are to be attributed to the CFMMEU under s 793(1) of the FW Act; and, on the basis of that attribution, the CFMMEU is a person involved in Mr Gutierrez’s contraventions of s 500 and, therefore, is to be taken as having contravened s 500 of the FW Act.
PENALTY FOR CONTRAVENTION 1 – MR GUTIERREZ
[69] Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203, at [51]. An application for an extension for time to apply for special leave to the High Court was refused on 8 April 2021 - Construction, Forestry, Maritime, Mining and Energy Union & Ors v Australian Building and Construction Commissioner & Anor [2021] HCASL 60.
[70] Construction, Forestry, Maritime, Mining and Energy Union & Ors v Australian Building and Construction Commissioner & Anor [2021] HCASL 60
Nature and seriousness of the conduct, and circumstances in which conduct occurred
The conduct consisted of Mr Gutierrez using offensive and demeaning language in an aggressive manner, and blowing cigarette smoke in the face of Mr Truong. A person’s placing his or her face some 20 centimetres away from the face of another and blowing smoke in the other person’s face would in most circumstances be improper. It was improper in the circumstances of this case, and significantly so.
Although it may be accepted that the use of offensive language by itself will not usually imply improper conduct, the language Mr Gutierrez used must be seen in the context in which it occurred. The first set of words was directed to Mr Sibbitt, a person who was responsible for safety on the Site, after Mr Sibbitt had repeatedly requested Mr Gutierrez and Mr Carroll to return to the Site office. Neither Mr Gutierrez nor the CFMMEU have submitted Mr Sibbitt did not have authority to so request, or that Mr Sibbitt’s request was not reasonable. The second set of words Mr Gutierrez used, and Mr Gutierrez’s blowing smoke, were directed to Mr Truong, who held the position of Employee Relations Coordinator.
The CFMMEU submits that Mr Gutierrez’s conduct “is perhaps rude and discourteous but really does not go much beyond that”; and that the words “shut up” and “fuck off” are “everyday words heard in lots of different everyday environments”, and to “the extent that they are improper they are so merely because they are regarded as socially inappropriate”.[71] I do not accept these submissions. They ignore the context in which Mr Gutierrez spoke the words; they ignore Mr Gutierrez’s blowing smoke in the face of Mr Truong from a distance of around 20 centimetres; and they ignore that the standard by reference to which the propriety of Mr Gutierrez’s is to be measured. As I have already noted, the standard is that which would be expected of a union official by reasonable persons with relevant knowledge of the duties of such an official in respect of the maintenance of health and safety on construction sites. Mr Gutierrez’s conduct fell significantly short of such standard.
[71] Third Respondent’s Outline of Submissions on Penalty, [12]
The CFMMEU also submits the conduct that constitutes Contravention 1 was “transient”.[72] That the conduct may have been transient in the sense that it occurred over a limited period of time does not alter its nature and character. In any event, as I have already noted, Mr Gutierrez’s conduct must be seen in the context I have already identified.
[72] Third Respondent’s Outline of Submissions on Penalty, [2]
The nature and seriousness of the conduct, and circumstances in which the contravening conduct occurred, point to fixing a penalty at the higher end of the scale.
General and specific deterrence
The ABCC understands, and therefore appears to accept, that Mr Gutierrez is no longer employed by or is an official of the CFMMEU, and he no longer holds a FW or WHS permit. There is nothing to suggest there is any tangible prospect that Mr Gutierrez will be granted any such permit in the reasonably foreseeable future. Further, the ABCC accepts Mr Gutierrez has no history of having contravened the FW Act or similar legislation. For these reasons, I am not satisfied the assessment of penalty should reflect any element of specific deterrence.
General deterrence is another thing. The penalty should be set to deter other permit holders from engaging in conduct of the sort that constitutes Contravention 1.
Other matters
Mr Gutierrez has cooperated to the extent he had admitted the contraventions; and, as submitted by the ABCC, it is appropriate to recognise this by reducing the penalty that would otherwise be appropriate to impose.
Mr Gutierrez has not manifested any contrition or remorse by, for example, apologising to Mr Sibbitt or Mr Truong. These are not matters, therefore, that are available to reduce the penalty that it would otherwise be appropriate to impose.
The CFMMEU submits that account should be taken of the fact that the contravening conduct was not part of some widespread systematic campaign, the fact that “it was obviously not pre-planned”, the conduct did not result in any financial or economic loss to anyone, the conduct did not involve personal injury, and did not otherwise expose any person to risk of injury.[73] It is difficult to see how things that did not accompany the contravening conduct are to be taken into account when assessing a penalty for the contravening conduct.
[73] Third Respondent’s Outline of Submissions on Penalty, [2]
Assessment of penalty for Contravention 1 before adjustment
The appropriate penalty for Mr Gutierrez’s Contravention 1 is $6,930 (55% x $12,600).
PENALTY FOR CONTRAVENTION 2 – MR GUTIERREZ
Nature and seriousness of the conduct, and circumstances in which conduct occurred
The gist of Contravention 2 consists of Mr Gutierrez continuing to walk on a pedestrian crossing which formed part of an isolation zone under the WHS Management Plan after Mr Sibbitt yelled at the workers undertaking jersey works to stop work because an unauthorised person was in their work area, and after Mr Sibbitt yelled at Mr Gutierrez (and Mr Carroll) not to proceed further, and that they were in breach of Site safety rules.
The CFMMEU submits there is no suggestion Mr Gutierrez knew, or had been told, before he walked across the pedestrian crossing, that the pedestrian crossing was an isolation zone.[74] It is true the ABCC makes no such allegation; but on the admitted facts, Mr Gutierrez was informed after he entered the pedestrian crossing that he had entered an area in which only authorised persons could enter; and he so became aware when Mr Sibbitt yelled at the workers undertaking jersey works to stop work because an unauthorised person was in their work area. Mr Gutierrez, however, did not stop; he continued to walk in the isolation zone, untroubled not only by Mr Sibbitt having yelled that Mr Gutierrez and Mr Carroll were not authorised to enter the area, but also by Mr Sibbitt’s yelling to them that they not proceed further, and that they were in breach of Site safety rules. That manifests a contemptuous disregard by Mr Gutierrez of the safety procedures that were in place at the Site, and of Mr Sibbitt, the person responsible for the implementation of those safety procedures.
[74] Third Respondent’s Outline of Submissions on Penalty, [13]
The CFMMEU also submits that it “is reasonable for someone in Mr Gutierrez[’s position] to have proceeded on the basis that the pedestrian crossing was a place for pedestrians to cross”.[75] This submission relies on the implicit assumption that Mr Gutierrez believed the pedestrian crossing was a place for pedestrians to cross. Mr Gutierrez, however, has not given evidence about the beliefs he held about his right to walk on the pedestrian crossing. In any event, the admitted facts are against my inferring that Mr Gutierrez held any such belief. Had Mr Gutierrez believed he was entitled to walk on the pedestrian crossing without any authorisation, he would have immediately checked his movement after Mr Sibbitt had yelled that Mr Gutierrez and Mr Carroll were not authorised to enter the pedestrian crossing, and sought guidance about what he should do. That did not occur. Instead, Mr Gutierrez continued to walk across the pedestrian crossing.
[75] Third Respondent’s Outline of Submissions on Penalty, [13]
The CFMMEU submits the conduct that constitutes Contravention 2, as with the conduct that constitutes Contravention 1, was “transient”.[76] As I have already noted, that contravening conduct may be transient in the sense that it occurred over a limited period of time does not alter its nature and character.
[76] Third Respondent’s Outline of Submissions on Penalty, [2]
The nature and seriousness of the conduct that constitutes Contravention 2, and circumstances in which the contravening conduct occurred, point to fixing a penalty at the higher end of the scale.
General and specific deterrence
As I have already noted, the ABCC appears to accept that Mr Gutierrez is no longer employed by or is an official of the CFMMEU, and he no longer holds a FW or WHS permit. There is nothing to suggest there is any tangible prospect that Mr Gutierrez will be granted any such permit in the reasonably foreseeable future. Further the ABCC accepts Mr Gutierrez has no history of having contravened the FW Act or similar legislation. For these reasons, I am not satisfied the assessment of penalty should reflect any element of specific deterrence.
General deterrence is another thing. The penalty should be set to deter other permit holders from engaging in conduct of the sort that constitutes Contravention 2.
Other matters
Mr Gutierrez has cooperated to the extent he has admitted the contraventions; and, as submitted by the ABCC, it is appropriate to recognise this by reducing the penalty that would otherwise be appropriate to impose.
Mr Gutierrez has not manifested any contrition or remorse. These are not matters, therefore, that are available to reduce the penalty that it would otherwise be appropriate to impose.
As with Contravention 1, the CFMMEU submits that account should be taken of the fact that the contravening conduct was not part of some widespread systematic campaign, the fact that “it was obviously not pre-planned”.[77] The CFMMEU also submits the conduct did not result in any financial or economic loss to anyone, and the conduct did not involve personal injury, and did not otherwise expose any person to risk of injury. That may be accepted.[78] As I have already noted, however, it is difficult to see how things that did not accompany the contravening conduct are to be taken into account when assessing a penalty for the contravening conduct.
[77] Third Respondent’s Outline of Submissions on Penalty, [2]
[78] Mr Sibbitt stopped work on the Site, but only after Mr Gutierrez entered the pedestrian crossing, but before Mr Gutierrez continued to walk on the pedestrian crossing.
Assessment of penalty for Contravention 2 before adjustment
The appropriate penalty for Mr Gutierrez’s Contravention 2 is $6,930 (55% x $12,600).
PENALTY FOR CONTRAVENTIONS 1 AND 2 – THE CFMMEU
What I have said about the assessment of penalties in relation to Mr Gutierrez’s contraventions of s 500 of the FW Act apply equally to the assessment of penalties in relation to the CFMMEU’s contraventions. There are, however, two additional matters that relate to the CFMMEU’s contraventions alone.
The first relates to the CFMMEU’s submission that the CFMMEU’s contraventions are wholly based on Mr Gutierrez’s conduct, and there is no suggestion that the contraventions involved senior officials. That may be accepted. The second matter relates to the CFMMEU’s extensive history of contravening conduct. That history is set out in annexure A to the ABCC’s written submissions.
The ABCC submits the CFMMEU’s history is relevant as a “prism” through which to assess the seriousness of the contravening conduct; and as a factor relevant to assessing the proportionate penalty for the contravening conduct.[79] The ABCC relies on the following passage from the judgment of Besanko and Bromwich JJ in Parker v Australian Building and Construction Commissioner:[80]
Thus, the role of any past contraventions is to be no more than a prism through which to view the instant contravention. This enables a court to assess whether, for example, the instant contravention is an “uncharacteristic aberration”, or whether the contravener has, by the instant conduct, manifested “a continuing attitude of disobedience of the law”. If the latter, as is clearly available to be concluded in this case, the heightened need for deterrence may indicate that a more severe penalty is warranted for the instant contravention. Nonetheless, that penalty must still fall within the applicable range that is otherwise considered appropriate for that contravention. If that is not carefully observed, the contravener may suffer the fate of being sanctioned anew for past contraventions, as the above quote from Veen (No 2) makes clear is not permitted.
[79] Applicant’s submission on penalty, [24], referring to the judgment of Besanko and Bromwich JJ in Parker v Australian Building and Construction Commissioner [2019] FCAFC 56
[80] Parker v Australian Building and Construction Commissioner [2019] FCAFC 56, at [341]
This passage suggests that a contravener’s history of contraventions is relevant to specific deterrence. In Environment Protection Authority v Abbas Pain J identified the manner in which a contravener’s previous contraventions may be relevant to assessing a penalty that is intended to achieve the object of specific deterrence:[81]
Specific or personal deterrence is applicable where an offender has a prior criminal record which manifests a continuing attitude of disobedience, such that more weight should be given to retribution, personal deterrence or protection of the community: Veen (No 2) at 477; R v Abboud [2005] NSWCCA 251 at [33]; R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [54].
Specific deterrence has particular relevance where an offender continues to operate in the same area of operation in which the offence occurred: Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106) [2018] NSWLEC 36 at [135] per Robson J citing Preston CJ in Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [48].
[81] Environment Protection Authority v Abbas [2021] NSWLEC 57, at [105], [106]
The CFMMEU’s extensive history of contravening conduct is relevant, therefore, because it manifests an apparent willingness and capacity by the CFMMEU to continue to contravene laws such as the FW Act. The penalties that should be assessed for each of the CFMMEU’s contraventions of s 500 of the FW Act should therefore incorporate an element for specific deterrence. I propose to increase by $1,000 each of the penalties I have assessed for Mr Gutierrez’s contravention of s 500, and assess the penalties for the CFMMEU’s contraventions (before adjustment) by multiplying each adjusted penalty by 5. That results in an (unadjusted) penalty of $39,650 for each of Contravention 1 and Contravention 2.[82]
[82] ($6,930 + 1,000) x 5 = $39,650
ADJUSTMENTS?
Mr Gutierrez submits his two contraventions “clearly are interrelated” in that “[b]oth contraventions occur as part of the same walk at the same site on the same day by the same people” and, for that reason “[c]ommon law course of conduct necessarily applies”.[83] The CFMMEU makes a substantially similar submission. The CFMMEU submits that “both contraventions arose on the same day, at about the same time, within the exercise of the same right of entry, or visit, to the site, occurred at the same place, involved the same permit holder and arose when the same people were following Mr Gutierrez around the site.”[84]
[83] First Respondent’s Outline of Submissions on Penalty, [25]
[84] Third Respondent’s Outline of Submissions on Penalty, [18]
It is true, as Mr Gutierrez submits, that his contravening conduct occurred in the course of the one walk at around the same time by the same person; and it is true, as the CFMMEU additionally submits, the contraventions occurred in the exercise of the same right of entry involving one permit holder and arose when the same people were following Mr Gutierrez around the site. These matters, however, do not attract the one transaction principle because they omit the two separate sets of acts that constitute Mr Gutierrez’s contravening conduct. The one transaction principle directs attention to the legal and factual elements of multiple contraventions; and it applies where multiple contraventions of the one provision share common legal and factual elements. The rationale of the one transaction principle is to ensure that a contravener is not punished more than once for the same contravening conduct. That requires the identification of the elements of the conduct that constitutes each contravention, and the determination of the extent to which the contraventions share common elements. The gist of a contravention of s 500 of the FW Act, in the context of the case before me, is a permit holder acting “in an improper manner”; and the amended statement of claim alleges that Mr Gutierrez’s contraventions of s 500 of the FW Act were constituted by two distinct sets of acts.
It is the case that these two sets of acts occurred in the exercise of rights Mr Gutierrez held as a permit holder; and this is a common element to the two sets of acts that constituted Mr Gutierrez’s contravention of s 500 of the FW Act. This, however, does not attract the one transaction principle, because the exercise of rights as a permit holder is not in itself contravening conduct; and there is no connection between the two sets of acts that constitute each of Contravention 1 and Contravention 2. The acts constituting Contravention 1 consist of words and conduct directed to persons; and the acts constituting Contravention 2 consist of conduct that manifests a contemptuous disregard of the safety procedures that were in place at the Site, and of Mr Sibbitt, the person responsible for the implementation of those safety procedures.
Thus, I do not propose to make any adjustments to the penalties I have assessed on the basis of the one transaction principle.
The last matter to consider is whether ordering Mr Gutierrez to pay penalties totalling $13,860, and the CFMMEU to pay penalties totalling $79,300, are just and appropriate responses to Mr Gutierrez’s and the CFMMEU’s contravening conduct as a whole. I am satisfied they are and, for that reason, I do not propose to make any further adjustment by applying the totality principle.
DISPOSITION
The ABCC submits that it is appropriate that I make declarations that identify the contraventions of each of Mr Gutierrez and of the CFMMEU. I accept that submission, and propose to make declarations substantially in the form the ABCC proposes. I will also make orders that each of Mr Gutierrez and the CFMMEU pay the pecuniary penalties I have assessed, and that they pay the penalties to the Commonwealth within 28 days.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 25 January 2022
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