Australian Building and Construction Commissioner v Hynes - [2019] FCCA 3145

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v HYNES & ANOR [2019] FCCA 3145

Catchwords:

INDUSTRIAL LAW – Commonwealth – Compliance and enforcement – Civil remedies – right of entry – entry permit holder – act in an improper manner – assessment of appropriate penalty.

Legislation:

Fair Work Act 2009 (Cth), ss.500, 512, 546, 550(1), 550(2)
Work Health and Safety Act 2011 (Qld), ss.117, 134

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68
Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (Non-Indemnification Personal Payment Case) (2018) 280 IR 28

Applicant: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent: BLAKE HYNES

Second Respondent: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

File Number: BRG 34 of 2019

Judgment of: Judge Jarrett

Hearing date: 29 October 2019

Date of Last Submission: 29 October 2019

Delivered at: Brisbane

Delivered on: 1 November 2019
REPRESENTATION

Counsel for the Applicant: Mr McKechnie

Solicitors for the Applicant: Norton Rose Fulbright

Counsel for the Respondents: Mr Boncardo

Solicitors for the Respondents: Hall Payne Lawyers
FEDERAL CIRCUIT COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Hynes & Anor [2019] FCCA 3145
CORRIGENDUM

In the representation section of the Cover sheet and Orders remove “Bocando” and replace with “Boncardo”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of Judge Jarrett.
Associate:
Dated: 6 November, 2019
ORDERS
THE COURT DECLARES THAT:
(1)The first respondent contravened s.500 of the Fair Work Act 2009 (Cth) when, on 23 August 2018, he acted in an improper manner towards Steven James, General Manager of Enco Precast Pty Ltd, whilst exercising rights pursuant to Part 3-4 of the Fair Work Act 2009 (Cth) at the Logan Enhancement Project located within an expanse of the Gateway Motorway between Compton Road and the Logan Motorway in the state of Queensland.
(2)The second respondent was involved in the first respondent’s contravention of s.500 of the Fair Work Act 2009 (Cth) by being directly or indirectly, knowingly concerned in or a party to the first respondent’s contravention for the purposes of s.550(1) of the Fair Work Act 2009 (Cth).
THE COURT ORDERS THAT:
(1)The first respondent pay a pecuniary penalty of $4,400 in respect of his contravention of s.500 of the Fair Work Act 2009 (Cth).
(2)The second respondent pay a pecuniary penalty of $34,650 in respect of its contravention of s.500 of the Fair Work Act 2009 (Cth).
(3)The pecuniary penalties referred to in orders 1 and 2 above are to be paid to the Commonwealth of Australia within 28 days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE
BRG 34 of 2019

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION
Applicant
And

BLAKE HYNES
First Respondent

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
Second Respondent
REASONS FOR JUDGMENT

The facts of this matter are not in dispute.
At approximately 8:00am on 23 August 2018, Blake Hynes arrived at a construction site that was part of a major road construction project covering an expanse of the Gateway Motorway between Compton Road and the Logan Motorway, Queensland. At the time, Mr Hynes was an employed organiser, official and officer of the Construction, Forestry, Mining and Energy Union.
He was also the holder of an entry permit issued by the Fair Work Commission under s.512 of the Fair Work Act 2009 (Cth) and a State Entry Permit issued under s.134 of the Work Health and Safety Act 2011 (Qld). When he entered the site he did so pursuant to Entry Notices issued pursuant to s.117 of the Work Health and Safety Act.
At approximately 8:30am on the same day Mr Hynes, in the company of some other people, entered a particular part of the site and when doing so, came into visual contact with Mr Steven James, the general manager of Enco Precast Pty Ltd. Enco Precast Pty Ltd was a subcontractor working on the project site. It manufactured pre-cast concrete products.
As Mr Hynes approached Mr James, he yelled towards Mr James words to the effect of:
You fucking dog cunt.
As Mr James and the first respondent crossed paths, Mr Hynes said, in reference to a hammer that Mr James was carrying, words to the effect of:
What’s the hammer for? You going to smash me?
Mr James continued towards the parking area and Mr Hynes said words to the effect of:
What are you doing here? Well, if the Project is using Enco beams they’ll probably fall down.
As Mr James continued to walk away from Mr Hynes, from a distance of 20 to 30 metres, Mr Hynes repeatedly shouted words to the effect of:
See ya, bye! Aren’t you going to say goodbye to us?
From a distance of approximately 50 to 60 meters, the first respondent yelled words to the effect of:
We’re going to sue you, you grabbed my throat; you fucking dog cunt.
When he spoke the words I have set out above. Mr Hynes spoke in an aggressive manner. He was in a highly agitated state.
Section 500 of the Fair Work Act provided (at the relevant time):
500 Permit holder must not hinder or obstruct
A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
The applicant alleges and both respondents admit that Mr Hynes’s conduct contravened that part of s.500 of the Act that proscribed him, as a permit holder exercising a right of entry, from acting in an improper manner.
The parties agree that the CFMMEU is liable for Mr Hynes’s conduct. It was involved in Mr Hynes’s contraventions as that phrase is defined in s.550(2) of the Act and, by operation of s.550(1) of the Fair Work Act is to be taken to have contravened the Act as well.
The parties have made their submissions on penalty on the basis that Mr Hynes contravened s.500 once only. Arguably, however, each of the utterances I have set out above might constitute a separate contravention of s.500. However, given the common basis upon which the parties have approached the case and the fact that on any view, even if there were multiple contraventions, they all arose from the same course of conduct by Mr Hynes, one penalty is appropriate.
The maximum penalty for a contravention of s.500 of the Fair Work Act is:
a) 60 penalty units for Mr Hynes; and
b) 300 penalty units for the CFMMEU.
At the time of the contravening conduct, the value of a penalty unit was $210. Accordingly, the maximum penalty that might be imposed for each contravention by Mr Hynes is $12,600. The maximum penalty that might be imposed for each contravention by the CFMMEU is $63,000.
It is common ground that the CFMMEU is a highly experienced and skilled participant in the industrial arena. It is also common ground that Mr Hynes also held, and had experience in, representational roles within the CFMMEU, including as an organiser and official of the CFMMEU.
The conduct by Mr Hynes was unprovoked.
The applicant submits that by engaging in this contravening conduct, Mr Hynes:
a)      flouted the privileges conferred on him as a federal permit holder and a State OHS permit holder;
b)      fell short of the standard reasonably expected of someone in his position;
c)      caused disruption to the operations on the project; and
d)      shocked Mr James and caused him to feel intimidated, annoyed, embarrassed and targeted.
Whilst I accept the first and second of those submissions, there is no evidence before me, and no agreement to the effect of the other matters. There is no basis for suggesting that Mr Hynes’s conduct caused disruption on the project or that Mr James was shocked, intimidated, annoyed, embarrassed or targeted.
Mr Hynes’s conduct occurred in the presence of employees of the head contractor on the site, CPB Contractors Pty Ltd. The words he used were objectively offensive. They were unprovoked and aggressive. The respondents do not plead that the Mr Hynes was provoked by Mr James or he was otherwise justified in making his offensive attack on Mr James. In their submissions the respondents suggest that there might have been reason for which Mr Hynes acted in the way that he did, but I reject those submissions. They are not supported by any evidence from the respondents consistent with the explanation proffered by the respondents.
Mr Hynes’s conduct was, I accept, antithetical to the rights of entry regime established under the Fair Work Act and was a gross abuse of the entitlements given to Mr Hynes by his entry permit. His conduct was plainly deliberate.
The principal object of pecuniary penalties under s.546 of the Fair Work Act is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at [116].
A pecuniary penalty for a contravention of the Fair Work Act 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. It is important to send a message that contraventions of the Act are serious and not acceptable: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at [98]. Retribution, denunciation and rehabilitation have no part to play: Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (Non-Indemnification Personal Payment Case) (2018) 280 IR 28 at [19]. The amount of the penalty must, however, remain proportionate to the conduct concerned: The Non-Indemnification Personal Payment Case at [22].
Mr Hynes’s conduct, whilst offensive and aggressive was not prolonged. It did not result in any stoppages or delay to work. No physical aggression was involved. No tangible loss, physical or financial, was caused by his actions.
Although Mr Hynes has not had any penalties imposed upon him in the past for breaches of the Fair Work Act, in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737 Collier J found that Mr Hynes contravened s.500 of the Fair Work Act in the circumstances of that case. That application has been adjourned for the assessment of penalties.
It is relevant to take into account that Mr Hynes has not contested his liability under the Act for his action, although there has been no other tangible expression of regret, remorse or contrition.
In my view, a penalty of $4,400 is an appropriate response to the offending conduct by Mr Hynes. His offending is not towards the most serious class of case involving a breach of s.500 of the Fair Work Act. But deterrence is a significant consideration, particularly given his ongoing role with the CFMMEU. I have balanced these matters, along with the other matters referred to earlier in these reasons to reach my conclusion.
The parties acknowledge that the CFMMEU has a long and established history of deliberate non-compliance with the industrial relations laws of this country. The applicant’s written submissions contain a table of some 156 cases in which a pecuniary penalty has been imposed upon the CFMMEU (or the CFMEU) for breaches of industrial laws. It is with some irony then that the CFMMEU has gone to such pains in the present case to ensure that the law as it applies to the imposition of pecuniary penalties is meticulously applied in reaching a conclusion about the proper penalty to be imposed upon it in this case.
The CFMMEU is a large organisation with significant financial resources which exhibits an ongoing willingness to contravene the Fair Work Act. The need for deterrence remains ongoing. Its unending recidivism calls for a penalty at the higher end of the range of penalties appropriate for this contravention. I fix a penalty of $34,650 in respect of the CFMMEU for the contravention
I will make declarations and orders accordingly.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 1 November, 2019.
Associate:
Date: 1 November, 2019