Australian Building and Construction Commissioner v Hanlon (No 2)
[2021] FCCA 787
•23 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Hanlon (No 2) [2021] FCCA 787
File number: SYG 2231 of 2015 Judgment of: JUDGE CAMERON Date of judgment: 23 April 2021 Catchwords: INDUSTRIAL LAW – Breaches of civil remedy provisions of the Fair Work Act 2009 – imposition of pecuniary penalties – relevant considerations. Legislation: Fair Work Act 2009, ss 500, 539, 546
Crimes Act 1914, s 4AA
Workplace Relations Act 1996
Cases cited: Australian Building and Construction Commissioner v Hanlon & Ors [2020] FCCA 3409
Johnson v The Queen (2004) 78 ALJR 616
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151
Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Trade Practices Commission v CSR Limited [1991] ATPR 41-076
Kelly v Fitzpatrick (2007) 166 IR 14
Darlaston v Parker (No 2) (2010) 200 IR 353
Pattinson v Australian Building and Construction Commissioner (2020) 299 IR 404
Parker v Australian Building and Construction Commissioner (2019) 270 FCR 39
Number of paragraphs: 44 Date of hearing: 31 March 2021 by telephone Place: Sydney Counsel for the Applicant: Mr M. Seck Solicitor for the Applicant: Bartier Perry Counsel for the Respondents: Mr I. Latham Solicitor for the Respondents: Taylor & Scott ORDERS
SYG 2231 of 2015 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: REBEL HANLON
First Respondent
BRIAN PARKER
Second Respondent
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Third Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
23 APRIL 2021
THE COURT ORDERS THAT:
1. The first respondent pay a penalty of $3,060.
2. The second respondent pay a penalty of $6,120.
3. The penalties be paid to the Commonwealth within twenty-eight days.
THE COURT NOTES THAT:
1. The 21 December 2020 stay of the declarations pronounced on 16 December 2020 terminated upon the pronouncement of the orders made today.
REASONS FOR JUDGMENT
JUDGE CAMERON:
INTRODUCTION
The applicant (“Commissioner”) brought this proceeding against the respondents on 11 August 2015. The first respondent, Mr Hanlon, and the second respondent, Mr Parker, were both officers of the then–Construction, Forestry, Mining and Energy Union (“CFMEU”), the third respondent in this proceeding.
In reasons for judgment delivered in this matter on 16 December 2020, Australian Building and Construction Commissioner v Hanlon & Ors [2020] FCCA 3409 (“First Judgment”), it was found that on 11 August 2014 the first and second respondents had contravened s.500 of the Fair Work Act 2009 (“FW Act”). The contraventions found were as follows:
1.On 11 August 2014 the first respondent acted in an improper manner and so contravened s.500 of the Fair Work Act 2009 by entering a construction site at Riverbank Drive, The Ponds and, having sought to exercise rights under Part 3-4 of the Fair Work Act 2009, remained on the site although he had failed to give notice of entry and refused to produce his entry permit.
2.On 11 August 2014 the second respondent acted in an improper manner and so contravened s.500 of the Fair Work Act 2009 by entering a construction site at Riverbank Drive, The Ponds and, having sought to exercise rights under Part 3-4 of the Fair Work Act 2009:
a.remained on the site although he had failed to give notice of entry and refused to produce his entry permit;
b.responded in an inappropriate, aggressive or intimidatory manner to lawful requests to see his entry notice and entry permit; and
c.spoke to workers without authority to do so.
On 21 December 2020 orders were made staying those declarations until the handing down of penalty orders.
The matter is before the Court for consideration of what, if any, penalties should be imposed as a consequence of the findings in the First Judgment.
Penalties applicable
Section 500 is a civil remedy provision: s.539 of the FW Act. In combination ss.539(2) and 546(2) of the FW Act provide that the maximum pecuniary penalty for the contravention of s.500 is 60 penalty units for an individual. As at 11 August 2014 a penalty unit was worth $170: s.4AA Crimes Act 1914. Accordingly, the maximum penalty that might be imposed for each of the first and second respondent’s contraventions of s.500 is $10,200 each.
FACTUAL BACKGROUND
Detailed findings of fact can be found in the First Judgment. However, a summary of those findings is sufficient for present purposes and I adopt the summary set out in the Commissioner’s written submissions:
7.Richard Crookes Construction Pty Ltd (RCC) was the principal contractor for the construction of The Ponds School at Riverbank Drive, the Ponds in New South Wales (Ponds site), which involved the construction of three new schools for the Ponds community. RCC engaged subcontractors Austar Plaster Pty Ltd (Austar) to provide plastering services at the Ponds site.
8.The case concerns events that occurred on 11 August 2014, at the Pond [sic] Site.
9.On 11 August 2014, Mr Hanlon and Mr Parker entered the Ponds site. Both Mr Hanlon and Mr Parker were officials and employees of the Construction, Forestry, Mining and Energy Union and permit holders.
10.A purpose of Mr Hanlon and Mr Parker’s visit to the site was to hold “discussions” with Austar workers.
11.While on site, Mr Hanlon and Mr Parker met with Mr Andrew Buchanan, RCC Project Manager. Mr Hanlon and Mr Parker were asked by Mr Buchanan to provide their entry notice and produce their entry permits. They did not produce their entry permits as requested by Mr Buchanan, in accordance with s 489 of the FW Act.
12.Mr Hanlon and Mr Parker were required by s 487 of the FW Act to provide RCC with an entry notice at least 24 hours before their entry onto the Ponds site on 11 August 2014. They did not provide such notice.
13.Mr Parker said he did not “care about the paperwork”.
14.Mr Buchanan refused Mr Hanlon and Mr Parker’s request to hold a meeting with the workers as they had failed to give notice and provide their entry permits. They both remained on the premises despite the requests made of them.
15.Mr Parker again requested Mr Buchanan (in an aggressive manner), “…to round up all the workers so I can speak with them. If you don’t round up the workers. I will go and do it” and “you will do what I fucking say” and “don’t fuck me around”.
16.Relevantly, the Court held at [149] of the Judgment:
Mr Parker’s contemptuous disdain for statutory preconditions to lawful entry on others’ premises, manifested by the way he spoke to Mr Buchanan was, I find, improper conduct in the relevant sense in that it was a breach of the standards of conduct that reasonable persons with knowledge of the relevant circumstances and of Mr Parker’s duties, powers and authority, would expect of a person in Mr Parker’s position.
17.“The respondents’ improper conduct was not limited to the site office”. Both Mr Hanlon and Mr Parker were again advised by Mr Buchanan that they were not allowed to enter the Ponds site without notice of entry and production of their entry permits. However:
(a)Mr Hanlon proceeded onto “the site proper” (unaccompanied). Mr Hanlon while on the “site proper” told workers, “… that we were having a meeting a[t] smoko”.
(b)Mr Parker remained in the car park area.
18.Later both Mr Hanlon and Mr Parker in the car park area (part of the premises) addressed workers despite Mr Buchanan making it clear that RCC did not consent to a meeting to been held unless they gave notice and provide[d] their entry permits.
19.The Court at [151] of the Judgment found this conduct to be improper. The Court said at [152]:
Similarly improper was Messrs Hanlon and Parker’s presence in the car park, which I have found was part of the premises, in pursuit of the meeting that Mr Buchanan had told them would not be permitted. Aggravating that impropriety was the fact that Mr Parker then proceeded to address workers even though Mr Buchanan had made it clear that RCC did not consent to a meeting being held unless the requirements of the FW Act had been satisfied.
(references omitted)
CONSIDERATION
In this case, the question of penalty is to be determined as follows:
(a)the Court is to identify the separate contraventions involved;
(b)because a contravener should not be penalised twice for what is, in substance, the same conduct, to the extent that two or more contraventions arise out of the same course of conduct or the one transaction, that fact should be taken into account when considering whether a “concurrent” or single penalty should apply to those contraventions: Johnson v The Queen (2004) 78 ALJR 616 at [4]-[5]; Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151 at [61] - [63]; Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 at 294-296 [226]-[234], (the “course of conduct” principle);
(c)the Court should determine an appropriate penalty to impose in respect of each contravention that is to be penalised (whether a single contravention, a course of conduct or group of contraventions) having regard to all of the circumstances of the case; and
(d)having fixed an appropriate penalty for each contravention or group of contraventions, the Court should consider the aggregate penalty to determine whether it is an appropriate response to the contravening conduct: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560, (the “totality principle”).
The authorities have referred to a number of considerations as being amongst the ones which might be taken into account when determining whether particular conduct calls for the imposition of a penalty and, if it does, the amount of the penalty, eg Trade Practices Commission v CSR Limited [1991] ATPR 41-076 52,152-52,153; Kelly v Fitzpatrick (2007) 166 IR 14 at 18-19 [14]. I consider that the following considerations are relevant to this case:
· The nature and extent of the conduct which led to the breaches.
· The circumstances in which that conduct took place.
· Whether there had been similar previous conduct by the respondent.
· Whether the breaches were properly distinct or arose out of the one course of conduct.
· Whether the party committing the breach had exhibited contrition.
· Whether the party committing the breach had cooperated with the enforcement authorities.
· The need for specific and general deterrence.
· Publicising of the incident.
Mr Hanlon
Nature, extent and circumstances of the contraventions
Mr Hanlon entered and remained on the Ponds site without having given prior notice of his attendance and failed to produce his entry permit when he was asked for it. Moreover, although having been told that he was not to enter the site he went unaccompanied into an area where work was being undertaken and told workers that a meeting was going to be held even though Mr Buchanan had told him that he would not allow workers to be called together. A meeting was subsequently held and he remained in the car park area until at least the end of that meeting.
The respondents submitted that there had been legitimate grievances in relation to the Austar workers and their pay and that there were issues of potential sham contracting and inadequate workers compensation coverage which ought to be taken into account when assessing Messrs Hanlon and Parker’s conduct. Those concerns would in all probability have justified an exercise of the right of entry which followed proper procedure but they did not justify the unilateral and arrogant actions that were taken. Similarly, that work at the site was not halted and that discussions were had only with employees who were already on a break, as the respondents argued, merely goes to the fact that the contraventions were not aggravated by delays to work arising out of an unauthorised meeting. The absence of aggravating factors does not operate to mitigate the seriousness of what in fact happened. The respondents are not entitled to credit for not behaving even more poorly than they did.
Mr Hanlon’s limited right of entry did not entitle him to act as he did on 11 August 2014 such that he contravened the FW Act. That conduct was an abuse of his limited statutory right of entry. That right of entry serves an important function in the protection of workers’ rights and working conditions and its misuse runs the risk of bringing it into disrepute and to lessening its support in the community.
Were the contraventions properly distinct?
It can be accepted that Mr Hanlon’s actions at the Ponds site on 11 August 2014 were part of a single course of conduct. The Commissioner submitted that Mr Hanlon’s conduct amounted to one contravention of s.500 of the FW Act.
Similar previous conduct
In 2008 Mr Hanlon contravened the Workplace Relations Act 1996 (“WR Act”) when, as a permit holder, he entered premises but failed to comply with a reasonable occupational health and safety (“OHS”) direction given to him by the occupier of premises and was penalised $2,500 as a consequence: Darlaston v Parker (No 2) (2010) 200 IR 353. I recognise that that conduct occurred many years ago and accept that Mr Hanlon does not otherwise have a history of contraventions.
In that connection, at the outset there appeared to be an issue between the parties concerning how prior contraventions were to be taken into account in the setting of penalties. In addresses it became apparent that all parties recognised the binding authority of the Full Court of the Federal Court in Pattinson v Australian Building and Construction Commissioner (2020) 299 IR 404 where it was held that:
… The history of contravention “may assist in the proper characterisation of the instant contravention” because it may tell one something of its seriousness or gravity by showing a “continuing attitude of disobedience to the law” …
… in the furtherance of the object of deterrence of the kind of contravention before the court the court’s task is to set an appropriate penalty for the instant contravention that is proportionate to the nature and gravity of that contravention informed by all relevant circumstances, including what can be concluded as to any willingness to disobey or defy the law …(at 461 [161], [162] per Allsop CJ, White and Wigney JJ).
Caution must also be exercised so that past conduct is not used to impose a penalty disproportionate to the nature, gravity and seriousness of the contravention in issue and thereby, effectively, re-penalise past conduct: Pattinson at 461 [161].
Mr Hanlon’s earlier contravention does not weigh heavily in the present considerations.
Co-operation, contrition and corrective action
Mr Hanlon has not expressed any remorse or contrition and he vigorously defended this proceeding.
Deterrence
The function of civil penalties is to help deter the contravenor and others from engaging in the contravening conduct. According to his affidavit of 27 July 2016, Mr Hanlon had been an official of the CFMEU since 2002 and he became an elected officer in 2014. I infer that he was experienced in such roles and so was aware of the FW Act’s limitations on the right of entry he enjoyed under it. He was aware on 11 August 2014 that Mr Buchanan insisted on the FW Act’s requirements concerning right of entry being observed and yet he did not observe those requirements and acted contrary to them. I accept the Commissioner’s submission that his conduct was deliberate and intentional.
According to the Commissioner, who was not contradicted by the respondents, Mr Hanlon remains a permit holder. Given the deliberateness of his conduct at the Ponds site on 11 August 2014, and his continuing enjoyment of the statutory right of entry, the penalty to be imposed will include an element for specific deterrence. It should also include an element for general deterrence lest others think that such conduct does not merit or attract appropriate disapproval or that the penalty that is imposed as consequence of it is an acceptable expense of doing business.
Publicising of the incident
The respondents submitted that they had been subjected to serious adverse and inaccurate press commentary, namely:
1. Parker said “we want the Chinese [workers] to stop” [Australian Financial Review 17 August 2015]
2. Parker and Hanlon made baseless claims that entitlements were not being paid and illegal immigrant workers were being used in order to gain access to the building site; [Australian Financial Review 17 August 2015]
3. The officials then told the workers to stop working and proceed to the site sheds; [ABCC Legal Cases Summary]
4. Parker then told the workers “Go back to work and if we need to pull it up, we will pull it up”; [ABCC Legal Cases Summary]
5. Parker told a meeting of about 30 workers they needed to pass a resolution to pull up the job to help the union resolve the issues; [ABCC Legal Cases Summary]
6. The allegations of non-payment of entitlements and illegal labour were found to be baseless. [Australian Financial Review 17 August 2015]
The respondents also submitted that the Commissioner did not withdraw from his Legal Cases Summary page allegations that ultimately were not pursued or were not made out.
The respondents submitted that this adverse publicity was, in the setting of penalties, a mitigating factor.
The respondents did not adduce evidence that Mr Parker had not said “we want the Chinese [workers] to stop”, which was the basis of their complaint in relation to the first point. The evidence I accepted in the First Judgment at [28] – [29], [31], [36], [43], [48], [50], [122], [135] – [136], [140] – [141] supports the assertions contained in the second and sixth points. It is to be observed that the newspaper report did not allege that Messrs Hanlon or Parker knew that their concerns were baseless. The third point was supported by the statement in the 11 August 2014 incident report that:
… Whilst RCC we [sic] discussing this matter with Brian Parker, Rebel Hanlon of the CFMEU walked onto site without authorisation and proceeded to tell all workers to go to the lunch area for a meeting. …
However, Mr Ward’s evidence of what Mr Hanlon did on the site did not go so far as recording that Mr Hanlon had told workers to stop working and proceed to the site sheds. I found that he had said that there was to be “a meeting at smoko”. I accepted in the First Judgment at [153] that Mr Parker did say the words quoted in the fourth and fifth points.
The factual basis for the submission that Messrs Hanlon and Parker had been subjected to serious adverse and inaccurate press commentary is at best weak and at worst absent. Moreover, it is speculative because it presumes that the Australian Financial Review article and the Commissioner’s Legal Cases Summary caused Messrs Hanlon and Parker, or either of them, emotions such as embarrassment or distress. However, there was no evidence of that and, given the nature of the contravening conduct that has been found to have occurred, I would need such evidence before accepting that any material hurt or harm had been caused by the material cited. In the absence of such evidence very little weight will be given to this issue in the setting of penalty.
Mr Parker
Nature, extent and circumstances of the contraventions
Mr Parker entered and remained on the Ponds site without having given prior notice of his attendance and failed to produce his entry permit when he was asked for it. He also said to Mr Buchanan that he did not “care about the paperwork” relevant to his request to speak to the Austar workers and did not care that he did not have it. He spoke to Mr Buchanan in an aggressive way and stated that he would round up the workers himself if Mr Buchanan would not, saying: “you will do what I fucking say” and “don’t fuck me around”. Although denied entry to the premises Mr Parker remained in the site’s car park area until at least the end of the meeting that later convened there and he addressed workers there even though Mr Buchanan had made it clear that Richard Crookes Construction Pty Ltd did not consent to a meeting being held unless the requirements of the FW Act had been satisfied.
The comments made earlier at [9] – [11] concerning Mr Hanlon’s actions apply mutatis mutandis to Mr Parker’s conduct in entering and remaining on the Ponds site on 11 August 2014. Aggravating that contravening conduct were the aggressive and bullying words that Mr Parker addressed to Mr Buchanan.
Were the contraventions properly distinct?
As with Mr Hanlon, it can be accepted that Mr Parker’s actions at the Ponds site on 11 August 2014 were part of a single course of conduct. The Commissioner submitted that Mr Parker’s conduct amounted to one contravention of s.500 of the FW Act;
Similar previous conduct
In 2008 Mr Parker contravened the WR Act when, as a permit holder, he entered premises but failed to comply with a reasonable OHS direction given to him by the occupier of the premises and intentionally hindered and obstructed the occupier and subcontractors. He was penalised $8,000 as a consequence: Darlaston v Parker (No 2).
In 2014 Mr Parker contravened the FW Act when he organised stop work action and enforcement action:
a)with intent to coerce workers on the site to engage in unprotected industrial action;
b)with intent to coerce the occupier of the site to reinstate a CFMEU official to duties; and
c)in circumstances the employees were covered by enterprise agreements that had not yet reached their nominal expiry dates.
He was penalised $45,400 for those contraventions: Parker v Australian Building and Construction Commissioner (2019) 270 FCR 39.
The respondents submitted that although Mr Parker had been found to have engaged in contravening conduct, the 2008 conduct was relatively historical while the decision in the other matter was not made until 5 years after the events in this proceeding and did not involve a breach of right of entry provisions. The events in the second matter occurred on 24 and 25 July 2014, and did involve breaches of provisions of the FW Act different from the ones considered in this proceeding.
The fact that Mr Parker has been held in two prior proceedings to have contravened industrial legislation, even though the second case involved contraventions that occurred less than a month before the contraventions in this case, does not indicate a pattern or practice of contravention on his part. Nonetheless the earlier cases combined with the present one suggest a preparedness by Mr Parker, when circumstances appear to him to merit it, to take action regardless of prohibitions prescribed by the scheme of industrial legislation.
I will have regard to Pattinson’s case when considering Mr Parker’s prior contraventions in the context of setting a penalty.
Co-operation, contrition and corrective action
As with Mr Hanlon, Mr Parker has not expressed any remorse or contrition and he vigorously defended this proceeding.
Deterrence
At the time he swore his affidavit of 27 July 2016, Mr Parker was the CFMEU’s Construction and General NSW Divisional Branch Secretary and had been an official of the CFMEU or predecessor union since 1990. As with Mr Hanlon, I infer that he was experienced in such roles and so was aware of the FW Act’s limitations on the right of entry he enjoyed under it. As with Mr Hanlon, he was aware on 11 August 2014 that Mr Buchanan had insisted on the FW Act’s requirements concerning right of entry being observed and yet he did not observe those requirements and acted contrary to them. I accept the Commissioner’s submission that Mr Parker’s conduct was deliberate and intentional.
The evidence is that Mr Parker is no longer employed by the CFMEU and is not a permit holder, which is relevant to the question of specific deterrence. Significantly, however, he has not said that he will not seek to undertake similar work in the future, which is also relevant to the question of specific deterrence.
Of greater significance though is the question of general deterrence. I have preferred Mr Buchanan’s account of the interaction between him and Mr Parker which means I accept that on 11 August 2014 at the Ponds site Mr Parker said to Mr Buchanan words to the effect of:
Do you understand who I am and what my position is; if you don’t get the workers together I’m going to do it;
You will do what I fucking say; and
Don’t fuck me around.
The respondents conceded that Mr Parker’s conduct was more “acerbic” than Mr Hanlon’s.
The respondents submitted that Mr Parker had remained in the carpark throughout the event, which I infer was proffered as a matter which distinguished his conduct, in a positive way, from Mr Hanlon’s entry onto the building site.However, the circumstances of the matter indicate that Mr Parker was doing no more than waiting for Mr Hanlon’s entry onto the site to produce results in the form of workers willing to participate in a meeting which Mr Parker would and did address regardless of the fact that Mr Buchanan had refused to consent to it. The fact that Mr Parker waited in the carpark area underlines his intention to address the meeting which had not received the approval of the occupier of the site and so was itself improper conduct.
Mr Parker was a very senior official with many years’ experience in industrial relations. Lest others in positions similar to Mr Parker’s misunderstand that such conduct will not attract a sanction, the penalty to be imposed on Mr Parker will reflect the Court’s disapproval of his improper conduct, including the aggressive way in which he, a senior and experienced union official, spoke to Mr Buchanan.
Publicising of the incident
The comments on the subject of media attention made earlier in the context of Mr Hanlon apply equally to Mr Parker.
PENALTIES
The Commissioner submitted that penalties in the low to mid-range were appropriate for Mr Hanlon and proposed an amount of $3,060 (30% of the maximum).
The Commissioner submitted that while courts have imposed penalties in the low to mid-range for conduct similar to Mr Parker’s, the contravention fell within the mid-range of objective seriousness after taking into account Mr Parker’s conduct, prior contraventions of industrial law and his role as a senior CFMEU official. The Commissioner proposed an amount of $6,120 (60% of the maximum) for Mr Parker.
The respondents argued that any penalties ought to be in the low range and suggested $1,000 for both Mr Hanlon and Mr Parker.
Both Mr Parker and Mr Hanlon were experienced trade union officials. The right of entry process is not difficult to understand and should have been engaged before they sought entry to the Ponds site. Further, knowing that they had been refused entry, Messrs Hanlon and Parker had clearly been placed on notice that they had no right to enter or remain on the premises for the purposes of pursuing a meeting which Mr Buchanan had refused to approve. Finally, in Mr Parker’s case, the contravening conduct was aggravated by his offensive and aggressive manner towards Mr Buchanan.
Having taken into account all the matters to which reference has been made in these reasons, I accept the Commissioner’s submissions as to the appropriate penalties in this case. Mr Hanlon will be ordered to pay a penalty of $3,060 and Mr Parker will be ordered to pay a penalty of $6,120. I believe that such amounts are just and appropriate.
Those amounts are to be paid to the Commonwealth within 28 days.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 23 April 2021
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