Australian Building and Construction Commissioner v Rielly (No 3) - [2022] FedCFamC2G 1

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Australian Building and Construction Commissioner v Rielly (No 3) [2022] FedCFamC2G 1

File number(s): SYG 1031 of 2020

Judgment of: JUDGE DRIVER

Date of judgment: 28 January 2022

Catchwords: INDUSTRIAL LAW – FAIR WORK – Assessment of penalties.

Legislation: Building and Construction Industry Improvement Act 2005 (Cth), ss.43, 49
Building and Construction Industry (Improving Productivity) Act 2016 (Cth)
Crimes Act 1914 (Cth), s.4AA
Fair Work (Registered Organisations) Act 2009 (Cth)
Fair Work Act 2009 (Cth), ss.340, 346, 348, 355, 363, 539, 546, 556, 557, 793

Cases cited: ABCC v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367
ABCC v CFMEU (2017) 254 FCR 68
ABCC v CFMEU (2018) 262 CLR 157
ABCC v CFMEU (No 2)(The BKH Contractors Case) [2018] FCA 1563
ABCC v CFMEU(The Perth Airports Case) (2017) 249 FCR 458
ABCC v CFMMEU (Botany Cranes Case)(No 3) [2021] FCA 363
ABCC v CFMMEU (Syme Library Case) (No 2) [2019] FCA 1555
ABCC v CFMMEU (The Castlemaine Police Station Case No 2) [2020] FCA 202
ABCC v CFMMEU (The Nine Brisbane Sites Appeal) [2019] FCAFC 59
ABCC v CFMMEU (The North Queensland Stadium Case) (No 2) [2021] FCA 105
ABCC v Huddy [2017] FCCA 1088
ABCC v Menon [2020] FCA 1418
ABCC v Parker (No 2) [2017] FCCA 1082
ABCC v Pattinson [2021] HCATrans 90
ACCC v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36
ACCC v High Adventure Pty Ltd [2005] FCAFC 247
ACCC v Yazaki Corporation [2018] FCAFC 73
Australian Building and Construction Commissioner v CFMEU (The Kane Constructions Case) (No 2) [2017] FCA 368
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211
Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) (No 2) [2021] FCA 263
Australian Building and Construction Commissioner v Rielly (No 2) [2021] FCCA 43
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
CFMEU v Cahill (2010) 194 IR 461
CFMEU v Williams (2009) 262 ALR 417
CFMMEU v ABCC [2019] FCAFC 201
CFMMEU v ABCC [2020] FCA 1662
CFMMEU v ABCC (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155
CFMMEU v ABCC (The Palmerston Police Station Case) [2021] FCAFC 7
Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) (2020) 295 IR 197
Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205
Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231
Darlaston v Parker (No 2) (2010) 200 IR 353
DFWBII v CFMEU (No 2) [2015] FCA 1462
DFWBII v CFMEU (2014) 140 ALD 337
DFWBII v CFMEU [2016] FCA 413
Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213
Director of theFair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226
Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union & Ors [2016] FCCA 1692
Director, Fair Work Building Industry Inspectorate v Cradden [2015] FCA 614
Director of the Fair Work Building Industry Inspectorate v Robinson(2016) 241 FCR 338
Draffin v CFMEU (2009) 189 IR 145
Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor (2016) 313 FLR 126
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown (2017) 275 IR 148
General Manager of the Fair Work Commission v Thomson (No 4) [2015] FCA 1433
Johnson v The Queen (2004) 205 ALR 346
Kelly v Fitzpatrick (2007) 166 IR 14
Markarian v The Queen (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
Parker v ABCC (2019) 270 FCR 39
Pattinson v ABCC (2020) 384 ALR 75
Pearce v The Queen (1998) 194 CLR 610
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) (2014) 97 ACSR 412
Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153
Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Veen v The Queen (No 2) (1988) 164 CLR 465
Williams v Construction, Forestry, Mining & Energy Union (No 2) (2009) 182 IR 327

Division: Division 2 General Federal Law

Number of paragraphs: 183

Date of last submission/s: 6 July 2021

Date of hearing: 24 June 2021

Place: Sydney

Counsel for the Applicant: Mr M S White SC

Solicitors for the Applicant: Clayton Utz

Counsel for the First and Second Respondents: Mr I Latham

Solicitors for the First and Second Respondents: Taylor & Scott Lawyers

Solicitor for the Third Respondent: Mr I Simic of Taylor & Scott Lawyers
ORDERS

SYG 1031 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

AND:
DEAN RIELLY

First Respondent

PAUL FITZPATRICK

Second Respondent

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

Third Respondent

ORDER MADE BY:

JUDGE DRIVER

DATE OF ORDER:

28 JANUARY 2022

THE COURT ORDERS THAT:
1.Pursuant to s 546 of the Fair Work Act 2009 (Cth):
(a)the first respondent pay pecuniary penalties totalling $10,000 for the contraventions of the Fair Work Act identified in this judgment, Australian Building and Construction Commissioner v Rielly (No 2) [2021] FCCA 43 (Liability Judgment) and declarations made on 3 March 2021;
(b)the third respondent pay pecuniary penalties totalling $80,000 for the contraventions of the Fair Work Act identified in this judgment, the Liability Judgment and declarations made on 3 March 2021.

2.The penalties identified in orders 1(a) and 1(b) are to be paid to the Commonwealth.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND

On 12 February 2021 I delivered my judgment on liability in this matter[1].
[1] Australian Building and Construction Commissioner v Rielly (No 2) [2021] FCCA 43 (Liability Judgment)
By declarations made on 3 March 2021, I found that:
1.By his conduct on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, the First Respondent, Dean Rielly, contravened s 348 of the Fair Work Act 2009 (Cth) (FW Act) by threatening to organise or take action against CPB Contractors Pty Ltd (CPB) with an intent to coerce CPB to engage in industrial activity by complying with a request or requirement of the Third Respondent, the Construction, Forestry, Maritime, Mining, and Energy Union (CFMMEU), that CPB’s employees working at its precast yard in North Boambee Valley become members of the CFMMEU and all of the labour hire workers at the Yard be covered by a CFMMEU enterprise bargaining agreement (EBA).
2.By his conduct on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, the First Respondent, Dean Rielly, contravened s 355 of the FW Act by threatening to organise or take action against CPB with an intent to coerce CPB to employ members of the CFMMEU and engage a particular independent contractor, being either the “Lack Group” or a labour hire business whose workers were covered by a CFMMEU EBA.
3. By his conduct on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, the First Respondent, Dean Rielly, contravened s 346(b) of the FW Act by advising, encouraging or inciting CPB to take action against Telum Precast (Qld) Pty Ltd (Telum) because Telum had engaged in industrial activity, namely it had not advanced the claims and interests of the CFMMEU by making a CFMMEU EBA or employing members of the CFMMEU.
4. By his conduct on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, the First Respondent, Dean Rielly, contravened s 340(1)(a)(ii) of the FW Act by advising, encouraging or inciting CPB to take adverse action against Telum because Telum had not exercised a workplace right, namely to make a CFMMEU EBA.
5. In respect of the declarations 1 to 4 above, the conduct, actions and state of mind of the First Respondent was by reason of s 363(1) and 793(1) of the FW Act the conduct, actions and state of mind of the Third Respondent, the CFMMEU.
6. The CFMMEU contravened:
a.section 348 of the FW Act on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, by the conduct of the First Respondent, Dean Rielly, in threatening to organise or take action against CPB with an intent to coerce CPB to engage in industrial activity by complying with a request or requirement of the CFMMEU, that CPB’s employees working at its precast yard in North Boambee Valley become members of the CFMMEU and all of the labour hire workers at the Yard be covered by a CFMMEU EBA;
b.section 355 of the FW Act on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, by the conduct of the First Respondent, Dean Rielly, in threatening to organise or take action against CPB with an intent to coerce CPB to employ members of the CFMMEU and engage a particular independent contractor, being either the “Lack Group” or a labour hire business whose workers were covered by a CFMMEU EBA;
c.section 346(b) of the FW Act on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, by the conduct of the First Respondent, Dean Rielly in advising, encouraging or inciting CPB to take action against Telum because Telum had engaged in industrial activity, namely it had not advanced the claims and interests of the CFMMEU by making a CFMMEU EBA or employing members of the CFMMEU;
d.section 340(1)(a)(ii) of the FW Act on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, by the conduct of the First Respondent, Dean Rielly, in advising, encouraging or inciting CPB to take adverse action against Telum because Telum had not exercised a workplace right, namely to make a CFMMEU EBA.
(paragraph references omitted)
I stayed the declarations until the making of penalty orders.
The penalty hearing was conducted on 24 June 2021. For the purposes of that hearing, I received the affidavit of Timothy McCauley made on 11 May 2021 and the affidavit of Cilla Helen Robinson made on 26 March 2021. The deponents were not required for cross‑examination. Mr Rielly also gave evidence on which he was cross-examined.
The parties provided extensive submissions on the issue of penalty, both before the hearing on 24 June 2021, orally at that hearing and after the hearing.
I have been assisted by those submissions.
CONSIDERATION
There is no dispute concerning the general principles to be applied in the assessment of penalties although the submission are nuanced in relation to the consideration and application of particular elements of the general principles.
Section 546 of the Fair Work Act 2009 (Cth) (Fair Work Act) provides that the Federal Circuit and Family Court (Division 2) “may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate”.
Factors relevant to penalty
There is a set of well-established factors that the Court takes into account in assessing the quantum of the appropriate penalty. These factors relate to the objective nature and seriousness of the offending conduct or concern the particular circumstances of the offender.
Factors relating to the objective seriousness of the conduct are the extent to which the conduct was deliberate, covert or reckless conduct; whether the contravention comprised isolated conduct or was systemic or occurred over a period of time; if the offender is a corporation, the seniority of the officers responsible for the contraventions; the existence within the corporation of compliance systems and the efficacy of the culture of compliance at the corporation; the impact or consequences of the contraventions on the market or innocent third parties; and the extent of any profit or benefit derived from the contraventions.
Factors relating to the particular circumstances of the offender include the size and financial position of the contravening corporation; whether the offender has been found to have engaged in similar conduct in the past; whether the corporation has improved or modified its compliance systems since such contraventions; whether there has been any co-operation with the regulator or contrition; whether any benefit obtained has been disgorged or reparation made; and any exhibited apparent sense of impunity in undertaking the contravening conduct[2].
[2] CFMMEU v ABCC (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 at [20]-[22]; ABCC v Menon [2020] FCA 1418 at [46]; ABCC v CFMMEU (The North Queensland Stadium Case) (No 2) [2021] FCA 105 at [21]
Such factors are not to be treated as a “rigid catalogue of matters for attention”. The task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions occurred and the need to sustain public confidence in the statutory regime which imposes the obligations[3].
[3] See Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [91]; ABCC v CFMEU (2017) 254 FCR 68 at [101]; The North Queensland Stadium Case (No 2) at [22]
The proper approach to be taken to the consideration and assessment of relevant factors in relation to each contravention (or, where appropriate, each course of conduct) is the “instinctive synthesis” approach explained by the High Court in Markarian v The Queen[4], involving the identification and balancing of all the considerations relevant to the contraventions and the circumstances of the third respondent, the Construction, Forestry, Maritime, Mining and Energy Union (Union)[5].
[4] (2005) 228 CLR 357 at [37], [39]
[5] Menon at [48]; The North Queensland Stadium Case (No 2) at [22]
Deterrence
The principal object of the application of these principles in civil penalty proceedings is deterrence, general and specific. The synthesis undertaken in a civil penalty case is of a different kind to that undertaken in criminal sentencing. In criminal sentencing there is a need to weigh and apply sentencing objectives which are not applicable when imposing civil penalties, such as retribution and rehabilitation[6]. The principal and indeed only object of the imposition of a penalty in a civil case is to put a price on contravention that is sufficiently high to deter repetition by the contravenor and others who might be tempted to contravene the Fair Work Act[7]. The High Court has stated that civil pecuniary penalties are “primarily if not wholly protective in promoting the public interest in compliance”[8].
[6] Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at [54]-[56];
[7] Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152 per French J; The Non-Indemnification Personal Payment Case at [19], [22]; CFMMEU v ABCC (The Palmerston Police Station Case) [2021] FCAFC 7 at [36]; The North Queensland Stadium Case (No 2) at [23]
[8] Commonwealth v Director, Fair Work Building Industry Inspectorate at [55]
In this case, the Union is a large, well-resourced organisation with a direct interest in industrial matters. Its role in the industrial relations framework in Australia is recognised in statute, including within the Fair Work Act. The first respondent, Mr Rielly, as a member, official, agent and employee of the Union, must share this interest in such matters. There is an important need to achieve deterrence to ensure that such respondents should not decide to breach industrial law in order to achieve their objectives in industrial matters and disputes. The penalties must be set at such a level to achieve this deterrent effect.
Specific deterrence and proportionality
One of the relevant factors in determining penalty is the contravenor’s history of past contraventions. In this case, Mr Rielly does not have any record of prior contraventions, so the consideration applies to the Union only. In some recent decisions of the Federal Court the weighing in the balance of prior contraventions has been debated in the context of the requirement for “proportionality”.
Proportionality, as described by the Full Federal Court, is part of the assessment of the “appropriate” penalty for the present contravention to serve the object of deterrence from repetition of like contravening conduct in the future and is a part of the examination of the nature of the contravention and all of the factors relevant to the need for deterrence. The process is discretionary and evaluative in character and includes consideration of the objective aspects of the contravention and the subjective characteristics of the contravenor[9].
[9] Pattinson v ABCC (2020) 384 ALR 75 at [104], [109]. On 20 May 2021 the High Court granted special leave to appeal: ABCC v Pattinson [2021] HCATrans 90. The appeal was heard on 7 December 2021 and judgment is reserved
Recent Full Federal Court decisions make clear that there is no doubt that the Court may take into account a contravenor’s history of prior contraventions in this process, provided that its impact on the quantum of penalty does not overwhelm the facts and circumstances of the present contravention so as to result in a penalty out of proportion to the objective degree of seriousness of the type of present contravention to be penalised, which would render an inappropriate penalty[10]. The proper approach has been described as follows.
[10] Pattinson at [195]; The Palmerston Police Station Case at [17]
The history of contravention is to be taken into account in fixing the proper penalty. The “[p]rior contraventions may reveal an apparent disregard for the [Fair Work] Act and the need for deterrence by a penalty at a level appropriate to achieve that objective”[11].
[11] The Non-Indemnification Personal Payment Case at [22]; applied by White J in Menon at [46], [63], a decision upheld by the Full Federal Court in The Palmerston Police Station Case at [13] (Bromwich J, with whom Katzmann and Griffiths JJ agreed)
Neither the Union nor any individual respondent is to be punished again for earlier misconduct. They are, however, to be punished more severely than they would have been had they had no adverse record or been responsible for only a few isolated incidents over a period of many years. In Pattinson the Full Federal Court stated at [108]:
The demonstrated willingness (and its degree or strength) of a contravenor to disobey the law (however that is derived admissibly) is or must be of significance to the assessment of what is reasonably appropriate in order to deter and within that task to what is proportionate.

A respondent’s continued willingness to engage in contravening conduct supports the view that earlier penalties, some of them severe, had not had a deterrent effect. The “longer such recidivism continues, the more likely it is that this consideration will carry greater weight than the principle that the maximum available penalty must be reserved for the worst possible offending”[12].
[12] Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 at [63], per Tracey J
A “demonstrated unwillingness to obey a law of Parliament can be seen to bear upon the seriousness of conduct that is a contravention of that law”. The “assessment of what is an appropriate penalty is informed by a reasonable appreciation of all the circumstances that rationally go to an assessment of the gravity and seriousness of the contravention before the court, including (but not limited to) what can be drawn from past conduct as to the present contravention”[13].
[13] Pattinson at [194], [201] respectively
The effect of the Full Federal Court’s decision in Pattinson “is that the Union’s recidivism is a factor to be taken into account is assessing the level of penalty that is reasonably necessary to deter similar offending, but it does not of itself require assessment of a penalty at the highest level”[14].
[14] The North Queensland Stadium Case (No 2) at [29], per Rangiah J
In the Australian Building and Construction Commissioner’s (Commissioner) submissions, each of the Union’s contraventions is sufficiently grave to warrant a penalty in the high to near maximum range, when regard is had to the factors set out below. Despite the authority of Pattinson, the Commissioner formally submits that there is no fetter on the exercise of the Court’s discretion under s 546 of the Fair Work Act based on the notion of proportionality. In this respect the Commissioner repeats his submissions, as advanced in his application for special leave to appeal that case, that a contravention may fall into the worst category because a prior history of contraventions reveals an attitude of disobedience, and the statutory maximum penalty may be applied to achieve effective deterrence even if the Court does not consider the contravening conduct itself to be of the most serious kind[15].
[15] Cf Pattinson at [98]-[99]. An appeal on this question has been heard by the High Court and judgment is reserved: see footnote 9 above
A history of contraventions may suggest “a continuing attitude of disobedience to the law. For this reason, and when all the background circumstances and other features of a contravention are considered, what might in isolation and superficially be a minor contravention may take on the complexion of a much more serious contravention” and “may point to the need for a more severe penalty than would otherwise be the case if there was no history of contravention”[16].
[16] ABCC v CFMMEU (Syme Library Case) (No 2) [2019] FCA 1555 at [96]
It does not offend the parity principle that the Union have imposed on it penalties of a greater percentage of the maximum penalty than those imposed on its officials for the same conduct because of the Union’s greater culpability, including its long history of contraventions which “was capable of influencing the characterisation of the present contraventions because it demonstrated ‘a continuing attitude of disobedience to the law’”[17].
[17] The Palmerston Police Station Case at [38], per Katzmann J citing Pattinson and Veen v The Queen (No 2) (1988) 164 CLR 465 at 477
The Union’s history as a recidivist contravenor
The Union has developed such a history of contraventions of industrial law that it has been described as “dismal”[18] and “outrageous”[19]. The evidence of prior contraventions (specifying the relevant Acts and sections contravened) is contained in the table appearing at pages 282-361 of Exhibit ‘CHR-1’ to the affidavit of Ms Robinson. Some further detail from that table is set out below. Tracey J, Anastassiou J and White J have described the Union as a recidivist offender.[20] The Commissioner submits that the Court is entitled to conclude in light of that history that at the time of these contraventions in 2019 the Union maintained an ongoing defiance of or disregard for the law, and, in the absence of any evidence put forward by the Union to suggest otherwise, that such an attitude continues. In these circumstances, specific deterrence takes on greater significance.
[18] Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 at [33]
[19] Director, Fair Work Building Industry Inspectorate v Cradden [2015] FCA 614 at [49]
[20] Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226, Tracey J at [63]; ABCC v CFMMEU (The Castlemaine Police Station Case No 2) [2020] FCA 202, Anastassiou J at [21]; Menon, White J at [75]
In 2016 Mortimer J made the following comments concerning both specific and general deterrence in relation to deliberate and unlawful conduct by the Union in another context in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2)[21] at [108]-[109] and [136], which are relevant to the present case:
As I have noted elsewhere in these reasons, the evidence shows that they repeatedly engage in the same kind of conduct, which is repeatedly found to be unlawful, often on the eventual basis of agreed facts and admissions. These matters are in my opinion relevant to an understanding of how deliberate, and how knowingly unlawful, these particular contraventions can be said to be.
It is apparent from the evidence that neither the CFMEU as an organisation, nor the controlling minds within its executive, appear to care at all whether conduct they plan against employers for industrial purposes is unlawful. Nor, it appears from the evidence, does Mr Myles care about the lawfulness of what he does either, so long as it serves the industrial purpose he seeks to advance. No explanations for what occurred were offered in evidence, or by way of agreed facts. There were no expressions of remorse or any apologies forthcoming from the CFMEU executive, or from Mr Myles. No exculpatory factors were proffered in the evidence, or by way of agreement. Indeed, no larger context was given to the industrial dispute at all by the respondents. It was not suggested in evidence, for example, that there were particular health and safety concerns at the Josephs Road site which had prompted the CFMEU to insist on its own delegate being present on site. Rather, the evidence suggests the respondents’ activity arose from nothing other than a continued drive for greater industrial power. The prospect of conduct (whether actions or threats or both) being unlawful appears to have no impeding effect at all on the respondents’ behaviour.
…
The qualification on what I have said is this. Coercion and intimidation as methods of achieving desired ends can occur in many walks of life, not only in industrial activity. Such conduct involves abuse, and misuse, of power. Coercive and intimidatory conduct is part of an ‘end justifies the means’ way of thinking which is frequently inconsistent and incompatible with the rule of law. The Court by its civil penalty orders should make it clear that coercion and intimidation contrary to law will not be tolerated and will be the subject of sanctions. Significant penalties are required to give some public confidence that those who administer the law will not condone coercive and intimidatory conduct, in this case in the sphere of industrial activity, but also more generally.
[21] [2016] FCA 436
Jessup J observed in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2)[22] at [7]:
An attachment to the applicant’s submissions demonstrated that the Union has been found to have contravened industrial legislation on more than 100 occasions since about 2003. Over a similar period, the contraventions for which the branch of which Mr Edwards is the president was responsible numbered more than 20. This record, and the judicial observations to which I have referred, suggests that the penalties heretofore imposed upon the Union have been inadequate to provide the specific deterrence which is so conspicuously required in this area of the law.
[22] [2015] FCA 1462
The history of the Union as a contravenor of the Fair Work Act and other industrial legislation has been suggested to represent a business model of choosing unlawful means to pursue its industrial objectives in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union & Ors[23], per Judge Jarrett (as his Honour then was) at [40]:
The CFMEU has an egregious record of repeated and wilful contraventions of all manner of industrial laws, and I accept that the penalty to be imposed in this case should reflect that record and be more severe than it would have been if it had no or limited adverse record. It must nonetheless be proportionate to the gravity of the contravention.
[23] [2016] FCCA 1692
Another pertinent comment of the Full Federal Court about the Union was[24]:
It is difficult, if not impossible, not to come to the conclusion that the Union is prepared, when it suits it, to contravene the Act and, as here, seek to coerce employers to comply with its demands. Without evidence to the contrary, it is a natural inference that those officials of the Union, such as Mr Myles here, tolerate and facilitate this attitude and approach of contraventions of the Act at the choice and will of the Union.
[24] The Non-Indemnification Personal Payment Case at [23] per Allsop CJ, White and O’Callaghan JJ, cited by White J in Menon at [75]
The Full Federal Court has also sounded this warning[25]:
In a liberal democracy, it is assumed that citizens, corporations and other organisations will comply with the law. Such compliance is not a matter of choice. The community does not accept that a citizen, corporation or other organisation may choose to break the law and simply pay the penalty. The courts certainly do not accept that proposition. Such acceptance would pose a serious threat to the rule of law upon which our society is based. It would undermine the authority of Parliament and could lead to the public perception that the judiciary is involved in a process which is pointless, if not ridiculous.
The Parliament’s purpose in legislating to provide that particular proscribed conduct will attract a civil penalty was to deter persons, including but not limited to trade unions or corporations, from engaging or continuing to engage in such conduct. A civil penalty would lose its utility if the person on whom it was imposed simply treated it as a cost of continuing to carry on with the very conduct that had just been penalised.
[25] ABCC v CFMEU(The Perth Airports Case) (2017) 249 FCR 458 at [100]-[101]
All of the above comments were made about conduct which occurred prior to 2019. The Commissioner submits that deterrence against the Union must be regarded to have failed. The Commissioner submits that penalties imposed at the higher range, including the maximum, are warranted and required. The penalties must be sufficiently high to meaningfully address the Union’s ongoing reoffending.
Imposing penalties for multiple contraventions
The following three principles require consideration when there are multiple contraventions of the Fair Work Act[26]:
(a)whether the conduct should be regarded as one course of conduct and for penalty purposes grouped together as one “course of conduct”;
(b)the need to avoid the imposition of penalties which in effect punish a respondent twice for the same conduct (civil double jeopardy); and
(c)after the first two steps have been considered, and a determination of the quantum of appropriate penalties has been made, making a separate reassessment of the penalty or penalties as reflecting the totality of the conduct (totality principle).
[26] Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) (2014) 97 ACSR 412 at [197]-[198]
It is important to remember that these considerations of avoiding duplication, “course of conduct” and “totality” are distinct steps[27].
[27] Matcham (No 2) at [292]-[293]; Pearce v The Queen (1998) 194 CLR 610 at [45]-[48]
Course of conduct
This principle is also intended to avoid double-punishment for those parts of the legally distinct contraventions which involve connected wrongdoing[28].
[28] Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 at [18]
Section 557 of the Fair Work Act expressly provides that contraventions of certain provisions of the Fair Work Act by first offenders of those provisions, are to be treated as a single course of conduct and a single contravention. Section 557 does not apply to contraventions of ss 340, 346, 348 or 355 (nor in any event is the Union a first offender of those provisions). A course of conduct principle also exists at common law, though the Court is not required to apply the principle; it is a matter of sentencing discretion having regard to the facts of each case[29]. In ABCC v CFMEU[30] at [114] the Full Federal Court (Dowsett, Greenwood and Wigney JJ) stated:
The important point to emphasise is that the course of conduct principle, in the criminal context at least, does not operate to permit a sentencing judge to impose a single sentence in respect of multiple offences on the basis that the offences formed part of a course of conduct. Absent a statutory provision that provides otherwise, a sentencing judge is to impose a separate sentence, albeit with the option of concurrency, for each offence.
[29] CFMEU v Cahill (2010) 194 IR 461 at [41] per Middleton and Gordon JJ
[30] (2017) 254 FCR 68
At [148] the Full Federal Court further stated:
The important point to emphasise is that, contrary to the Commissioner’s submissions, neither course of conduct principle or 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. 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. That is not to say that the Court can impose a single penalty in respect of each course of conduct.
The Full Federal Court repeated in The Non-Indemnification Personal Payment Case at [31] that where s 557 does not apply, each contravention attracts a penalty. The basis for this view is explained by the Full Federal Court in The Perth Airports Case at [88] (Dowsett and Rares JJ):
In our opinion, s 557 did not cover the field and did not exclude the common law principle of taking into account, when imposing a penalty, whether the conduct complained of constituted a single course of conduct. However, s 557 provided a legislative indication that certain forms of concerted industrial action, such as multiple contraventions of ss 417(1) and 434, would be deemed, only in the case of a first contravention by the person, to be a single contravention. That contrasted with the legislative purpose of treating one contravention of s 348 differently from ones to which s 557 applied. The Parliament appears to have intended that multiple contraventions of s 348, in what, in other circumstances (such as those covered by s 557) might be treated as a course of conduct, would not necessarily attract any sentencing leniency.
At [97], Dowsett and Rares JJ stated:
The Parliament did not enlist s 557(2) to deem that a course of conduct involving multiple contraventions of s 348 would be punishable as a single contravention for a first offender. It is important to recognise that coercion is a particularly serious form of industrial (mis)conduct. If more principal actors are involved in unlawful coercion, there is a potentially greater impact on the target. Of course, all will depend on the facts. Here, the CFMEU acted through four agents to organise and execute a blockade. Its enlistment of each agent and his conduct was a separate contravention on s 348 and each made the overall impact and effectiveness of the blockade greater. There was some overlap between the conduct of each of Messrs Buchan, McDonald, Molina and Joshua, whose acts created each contravention by the CFMEU. However, the CFMEU knew that the conduct of each of its officials or organisers, whom it deployed in effecting coercion, would render it liable for a separate contravention of s 348.
Section 355, like s 348, prohibits coercive action.
Another recent statement by the Full Federal Court as to the application of the course of conduct principle is that even if the contraventions are properly characterised as a single course of conduct, “a judge is not obliged to apply the principle” at common law “if the resulting penalty fails to reflect the seriousness of the contraventions”.[31] In a recent Full Federal Court decision, Bromwich J (with whom Katzmann and Griffiths JJ agreed) stated that course of conduct principles are not rigid rules of law, but rather general principles to guide the exercise of discretion. The primary judge had imposed separate penalties on the contravenors for multiple contraventions of the same section of the Fair Work Act in a single course of conduct on the same day, and this approach was found not to entail error. The primary judge gave consideration to the overlapping nature of the events, but also the cumulative and amplifying effect of multiple contraventions, especially in the hands of the union.[32]
[31] ACCC v Yazaki Corporation [2018] FCAFC 73 at [235]
[32] The Palmerston Police Station Case at [28]-[29]
When considering the maximum penalty for a course of conduct, it is also important to bear in mind that the statutory maximum for one contravention is not converted into a maximum for the entire course of conduct; the maximum continues to apply to each contravention which forms part of the course of conduct.
The question whether certain contraventions should be treated as being truly a single course of conduct is a factual enquiry to be made having regard to all of the circumstances of the case.
In the present case, the actions taken by Mr Rielly over the period from January to March 2019 constituting the s 348 and s 355 contraventions involved coercive conduct, which is to be regarded as a particularly serious form of industrial misconduct[33]. Blockades intended to coerce employers to comply with industrial demands should attract a separate penalty. Threats made with the intention to coerce are also to be regarded as separate contraventions and penalised accordingly, and such actions repeated on a second or third day (or in this case, on several occasions over a period) have also been treated as separate contraventions to be penalised separately, as has been held by the Full Federal Court[34].
[33] The Perth Airports Case at [97]
[34] The Non-Indemnification Personal Payment Case at [31]-[34]
The specific conduct grounding the s 348 and s 355 contraventions was the threat to prevent delivery of the precast product of CPB Contractors Pty Ltd (CPB), which was conduct aimed at CPB. The conduct was the threat made to Mr Gray on 4 March 2019 and the repetition of that threat in a more direct and emphasised manner to Mr Percival and Mr Whitaker on 5 March 2019[35]. It was that threat which was particularised in [23] and [33] of the Further Amended Statement of Claim (FASOC). It was that conduct which I found to constitute the contraventions of ss 348 and 355[36].
[35] Paragraphs [17e] and [19d] of the FASOC
[36] Liability Judgment at [172], [180]-[186], [190]

The s 340 and s 346 contraventions involved conduct of a comparatively less serious nature, namely advising, encouraging and inciting CPB to take adverse action against Telum Precast (Qld) Pty Ltd (Telum)[37]. The Commissioner submits that though the conduct on which these contraventions are based includes the conduct on which the s 348 and s 355 contraventions are based (being the specific threat to prevent delivery of precast product to a hospital site), it extends beyond that to all of the statements made by Mr Rielly to the CPB managers which involved criticisms of Telum and advising, encouraging and inciting CPB to terminate Telum’s contract and replace it with another labour hire company, which had made a CFMMEU Enterprise Bargaining Agreement (EBA). All of that conduct, for the purposes of making a finding of contraventions of ss 340 and 346, was directed against Telum, CPB being the vehicle through which Mr Rielly intended to have action taken against Telum. I made findings at [193]-[194] and [206]-[207] of the Liability Judgment based on my acceptance of the Commissioner’s evidence as recorded in the Liability Judgment[38]. I also recorded that some of the conduct was accepted by the respondents and put to the Commissioner’s witnesses, Mr Gray and Mr Percival[39].
[37] A labour hire company engaged by CPB
[38] Paragraphs [47]-[70], [198] in particular, [49], [51], [52], [54], [56], [57], [60(d)], [62], [147]
[39] Liability Judgment at [141], [145]
Thus, the conduct underlying the s 340 and s 346 contraventions involved a broader set of acts and statements, and is not the same particular conduct engaged in by Mr Rielly in contravening ss 348 and 355. In the Commissioner’s submission these considerations support and warrant the Court, when applying course of conduct principles, penalising each contravention by a separate penalty, albeit taking into account some overlap and concurrency between them.
So far as the Union is concerned, the Commissioner submits that it should be penalised for each contravention by Mr Rielly. There is said to be a sound basis for the Court to so proceed and no finding would be warranted that the Union engaged in one course of conduct[40]. As the Full Federal Court stated in The Perth Airports Case at [102]:
The legislative purpose in the Act, of creating separate contraventions and imposing pecuniary penalties on organisations, such as the CFMEU, for conduct engaged in on the one occasion by their agents, will not be served by equating multiple contraventions by a recidivist as a wholly single course of conduct. Each separate contravention by the CFMEU’s officials and organisers on 22 October 2013 had a distinct effect and impact in making the blockade of a very large site effective. The Act contemplates that the Court can fix a high price, by way of aggregated penalties, on an organisation in circumstances such as the present to deter future repetition.
[40] Australian Building and Construction Commissioner v CFMEU (The Kane Constructions Case) (No 2) [2017] FCA 368 at [4], and Menon, upheld on appeal in The Palmerston Police Station Case at [28]-[29]
The Commissioner also submits that the penalties imposed on the Union should be higher than those imposed on Mr Rielly as a percentage of the maximum penalty. This would not offend any principle of parity between the respondents on the facts and findings in this case given the Union’s greater culpability for threats made by a representative of a large well-resourced organisation, capable of exercising considerable industrial muscle and the greater degree of seriousness of the conduct in the hands of the Union, “which has a particular responsibility for ensuring that its officials behave appropriately”[41].
[41] The Palmerston Police Station Case at [16], [20]-[21]
Under the Fair Work Act, the Union is afforded a role in this process as a bargaining representative for employees. The Federal Court has observed in the context of industrial relations legislation that the statutory recognition of the nature and role of an industrial association under a legislative regime carries with it responsibility to other participants in the industrial relations system and to the wider community. In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union,[42] Tracey J at [30] stated:
Moreover, an organisation which is accorded a favourable status under a legislative regime bears broader responsibility than does a private individual: statutory recognition and advantage carry with them responsibility to other participants in the industrial relations systems and to the wider community. That responsibility requires adherence to the rule of law and to dispute resolution procedures prescribed by legislation and enterprise agreements.
[42] [2015] FCA 226
For that and other reasons below, the Commissioner seeks penalties imposed on the Union in the high range.
Double jeopardy
The principle of civil double jeopardy is that if contraventions of multiple provisions of the Fair Work Act arise from the same wrongful conduct it should attract one penalty only, not separate penalties for each contravention. Section 556 of the Fair Work Act prohibits imposing more than one penalty in relation to “particular conduct”.
In Parker v ABCC[43] the Full Federal Court stated that it is not an error to treat the contravention of several provisions by an offender as separate for the purposes of penalty, and to not apply s 556 of the Fair Work Act, where there are findings available that the offender contravened the different provisions by different conduct. The Full Federal Court upheld Flick J’s imposition of separate penalties on officials and distinguished ABCC v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2)[44] and ABCC v Huddy (No 2)[45] on the basis that in those cases the active contravenors were the site employees and the officials were liable as accessories for exactly the same conduct[46]. In Parker, the officials and in the present case, Mr Rielly was the primary contravenor. Justice Flick’s findings of differences in underlying conduct leading to contraventions of different provisions was relevant to a consideration of the phrase “particular conduct”[47]. That consideration included identifying that coercion counts have a distinct character, the intent being directed at different targets of the coercion[48]. The Full Federal Court upheld the imposition of separate penalties for contravention of a different provision by a union official.
[43] (2019) 270 FCR 39
[44] [2017] FCA 367 at [4]
[45] [2017] FCA 1088
[46] at [312]-[315] per Besanko and Bromwich JJ (with whom Reeves J agreed)
[47] Parker at [313]
[48] Parker at [278]
As submitted by the Commissioner, in the present case the conduct founding the contraventions of ss 340 and 346 by Mr Rielly was much wider than the conduct of administering the threats to CPB which founded the contraventions of ss 348 and 355. The Commissioner accepts though, that as between the contraventions of ss 340 and 346, and as between the contraventions of ss 348 and 355, Mr Rielly engaged in the same “particular conduct”. The result, the Commissioner submits, would be that Mr Rielly should have imposed on him a single penalty for the s 340 and s 346 contraventions and a separate single penalty for the ss 348 and 355 contraventions. This result would appropriately reflect the fact that the two sets of contraventions are based on different conduct and that the coercion contraventions should be recognised as particularly serious conduct and separately penalised. It would also satisfy the application of course of conduct principles by recognising some overlap in the conduct of Mr Rielly leading to the four contraventions.
Totality principle
Where multiple penalties are to be imposed upon a particular wrongdoer, the totality principle requires the Court to make a “final check” of the penalties to be imposed on a wrongdoer, considered as a whole. It will not necessarily result in a reduction. However, in cases where the Court believes that the cumulative total of the penalties to be imposed would be too low or too high, the Court should alter the final penalties to ensure that they are “just and appropriate”.[49] As noted, the totality principle is quite separate from the course of conduct principle and is applied at a different stage of analysis. The application of the totality principle does not authorise a court to impose a single penalty for multiple offences.[50]
[49] See Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at [5]-[7] per Gyles J and [41]-[43] and [90]-[92] per Stone and Buchanan JJ; Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 at [81]-[82] and Matcham (No 2) at [292]-[294]. In the criminal sentencing context see Mill v The Queen (1988) 166 CLR 59 at 62-63 and Johnson v The Queen (2004) 205 ALR 346 at [4]-[5]
[50] ABCC v CFMEU (2017) 254 FCR 68 at [119]-[120]
While there were previously two competing approaches as to how this principle was to be practically applied, the Commissioner submits that the Full Federal Court has resolved that debate and established one clear approach.[51] The Court should assess the penalty that would be properly appropriate for each separate contravention, total those amounts and reconsider that total as to whether it was appropriate as per ACCC v Australian Safeway Stores Pty Ltd[52] at 53 and Australian Ophthalmic Supplies Pty Ltd at [102] per Buchanan J with whom Gray J agreed.
[51] Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at [145]; Australian Ophthalmic Supplies Pty Ltd at [23]-[25], [66]-[71] and [95]-[97]. Similar observations were made in Darlaston v Parker (No 2) (2010) 200 IR 353 at [17] and Clean Energy Regulator [2013] FCA 205 at [74]
[52] (1997) 145 ALR 36
In the present case, if I was to accept the Commissioner’s proposed approach to course of conduct, double jeopardy and deterrence principles, I may consider that there would be no need for further reductions for totality purposes. This is because, significant allowance having been made for any overlap through the application of course of conduct principles and s 556, the total of the appropriate penalties would be “just and appropriate” without the need for further reduction.
Relevance of the maximum penalty
In Markarian v The Queen, at [31], the High Court held 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.
The maximum penalty is not to be applied mechanically, but is one of a number of factors, albeit an important one. Ordinarily there should be some reasonable relationship between the theoretical maximum and the final penalty imposed.[53] These remarks have been repeatedly held to apply in the context of civil penalties.[54]
The Commissioner’s particular submissions on penalty
[53] The Non-Indemnification Personal Payment Case at [26]; Menon at [51]
[54] See, for example, Mornington Inn Pty Ltd at [62] and [88]; Clean Energy Regulator at [67]-[68]; ABCC v CFMEU (2017) 254 FCR 68 at [106]
The nature and extent of the contravention
My findings on the nature of the conduct of Mr Rielly appear in the Liability Judgment at [47]-[73] (apart from the matters stated affecting Mr Fitzpatrick), [172]-[176] and [180]-[186] including that the threat was to carry out unlawful conduct amounting to picketing, besetting and procuring breaches of contract with serious consequences for CPB and its employees or labour hire workers.
The circumstances in which the contravening conduct took place
The Union was in the midst of a demarcation dispute with its rival union, the Australian Workers Union, which was a motivation behind Mr Rielly’s conduct in addition to the usual industrial objectives of the Union, to “organise” worksites and secure CFMMEU EBAs with employers and employees in what it regarded as its sphere of influence[55]. The campaign by Mr Rielly was premeditated and proceeded over a period of time from when he first heard about CPB obtaining the contract for the precast work, increasing in frequency and pressure at the very time CPB was negotiating a new EBA with its employees in March 2019, a form of “industrial stalking” of employers considered “non-compliant” with the Union’s industrial objectives. He commenced with attempts to suborn Mr Ryan to assist him finesse Union-friendly contractors onto the site, but accelerated his efforts by meeting with Mr Gray, Mr Whitaker and Mr Percival on 4 and 5 March 2019, bringing to the latter meeting “back up” in the form of Mr Fitzpatrick. The conduct was an attempt by Mr Rielly and the Union to exercise industrial “muscle” though coercion.
[55] Liability Judgment at [47], [57], [60(b) and (c)], [72], [182]
The nature and extent of any loss and damage as a result of the contraventions
The Commissioner accepts that as the conduct was the making of threats, as the threats were not actually carried out, the conduct did not cause any loss, financial or otherwise, to CPB.
There has been similar contravening conduct in the past
There has been no prior relevant conduct by Mr Rielly so far as the Commissioner is aware. As discussed above, the Union’s prior record of contraventions has been described as “dismal” and “outrageous” and the Union has been described as a recidivist offender.[56] The table of contraventions prepared by the Commissioner, which as noted above is at pages 282-361 of Exhibit ‘CHR-1’ to the affidavit of Ms Robinson, records that the Union, prior to amalgamation with the Maritime Services Union in March 2018, has been found to have contravened industrial legislation in over 160 judgments since about 2003, some involving more than one contravention[57]. In the period since 2009 during which the Fair Work Act has been in force, the Union is said to have committed 16 contraventions of s 340, 31 contraventions of s 346, 84 contraventions of s 355 and 96 contraventions of s 348. The Union has provided no evidence that, as a consequence of any of these contraventions, or the burgeoning number of them that suggests it has a serious problem in both it and its officials complying with the law, it has instituted any corrective training or reform of its recruiting or employment procedures to better ensure compliance with industrial legislation or its obligations under such legislation. Its ongoing conduct is institutionalised. As Colvin J stated in a recent case:[58]
the sheer scale of disregard for the law enables the present case to be approached on the basis that past penalties have been ineffective in deterring the Union from contravening the obligations imposed by industrial legislation.
[56] Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226, Tracey J at [63]
[57] The Table includes at the end the fewer contraventions found against the Maritime Union of Australia, but the Court need not take these into account: see The Non-Indemnification Personal Payment Case at [23]
[58] CFMMEU v ABCC [2020] FCA 1662 at [95]
The size and nature of the Union is significant. It has real power and influence in the building and construction industry. Indeed, a preoccupation with the perception of the Union’s power may well explain the nature of the conduct engaged in on this occasion. There is no suggestion or evidence that the Union lacks capacity to pay the penalties sought. An analysis of the financial statements of the Union[59] shows as follows.
[59] Pages 111-281 of Exhibit ‘CHR-1’ to the affidavit of Ms Robinson
The most recent lodged Financial Statements for the Union National Office are for the 2019 calendar year[60] and show income of approximately $6.6 million made up, among other things, of capitation fees and levies from the union’s divisions. The National Office is also tax exempt.[61] Though the National Office made a loss for the year of $272,275 and had a net asset deficiency of $627,405, it is clearly a creature of its component divisions which provide it with its main sources of income.[62] Legal fees expenditure for the National Office in the 2019 year was $40,331[63], but the National Office did not bear the litigation costs of the Union. Apart from employee expenses, the largest expense was “grants or donations” of $2,066,216 and the next largest was “Campaign expenses” of $1,149,118[64]. $1 million of the grants or donations was paid as a political donation towards a federal election campaign. Overall, the National Office could afford to expend approximately $3.2 million on political and other campaigns to further its interests, but the financial statements make no reference to funds expended on programmes to educate its senior office holders, employed organisers or other employees about compliance with the industrial legislation, despite the obvious failure of many of them to understand or comply with the legislation.
[60] See CFMMEU National Office Financial Report for the year ending 31 December 2019 (2019 NO FS), a copy of which appears behind at pages 111-170 of Exhibit ‘CHR-1’
[61] 2019 NO FS, page 8 and Note 1.17 on page 21
[62] See 2019 NO FS pages 8-9, Note 1.19 on page 23
[63] 2019 NO FS, page 8 and Notes 4G and 7B
[64] 2019 NO FS, page 8 “Other expenses” and Note 4H on page 30; and Note 4E on page 29
The National Office of the Construction and General Division[65] of the Union received income of approximately $6.3 million in the financial year ending 31 March 2020 and has net assets of $11,589,312[66]. The Union is exempt from tax[67]. The Union sold its commercial property in Swanston Street, Melbourne for a capital gain of approximately $1.6 million[68]. Legal fees for litigation in the 2020 year were $189,304, down from $617,275 in the 2019 year[69]. Most of the income is received as capitation fees and campaign levies from the State branches of the Union[70]. The branches also contributed a separate amount of $471,729 in “campaign” levies[71]. In the 2019 year the Division made $2 million in donations to the CFMMEU National Office, half for a “change rules” campaign and half as a political donation to election expenses.[72] The largest expenses are office holder and employee benefits and capitation fees paid to the Union National Office[73]. The 2020 FS records nil payments of civil penalties under the Fair Work Act in the 2019 or 2020 years[74], as these seem to be paid by the NSW Branch of the Division (see below).
[65] See Construction and General Division, National Office Financial Statements for the year ended 31 March 2020 (2020 FS), a copy of which appears at pages 171-229 of Exhibit CHR-1
[66] 2020 FS, pages 7 and 8
[67] 2020 FS, Note 1.20 on page 25
[68] 2020 FS, Note 3D on page 28
[69] 2020 FS, page 30, Note 4G
[70] 2020 FS, pages 7, Notes 3A and 3B on page 28
[71] 2020 FS, Note 3B on page 28
[72] 2020 FS, Note 8A on page 42
[73] 2020 FS, page 7, Notes 4A and 4B on page 29
[74] 2020 FS, Note 4I on page 31
The most recent financial statement lodged for the NSW Branch of the Construction & General Division for the year ended 31 March 2020[75] records income of approximately $20 million and net assets of approximately $8.8 million[76]. Civil penalties of $833,400 and legal costs of $646,516 (of which $628,627 were for litigation) were paid in 2020 and $326,500 and $758,266 respectively in 2019[77]. A further $203,443 for litigation costs is outstanding[78]. The Branch is exempt from paying income tax[79].
[75] Pages 230-281 of Exhibit ‘CHR-1’
[76] NSW 2020 FS pages 5 and 6
[77] NSW 2020 FS page 5, and Note 4 on page 24
[78] NSW 2020 FS, Note 9 on page 29
[79] NSW 2020 FS, Note 1(o) on page 20

The Union is of a substantial size and has sizeable resources available, especially its Construction and General Division which was the unit responsible for the contravening conduct, in order to pay the penalties suggested without threatening its overall financial viability[80]. Even if it were otherwise, and the financial viability of the Union was threatened, that would not prevent the imposition of a significant penalty to achieve appropriate deterrence. The Full Federal Court made the following statements in relation to a recidivist offender in ACCC v High Adventure Pty Ltd[81] at [11]:
… As the cases to which the judge was referred show, the principal, if not the sole, purpose for the imposition of penalties for a contravention of the antitrust provisions in Part IV is deterrence, both specific and general. This rule is so well entrenched that citation of authority is unnecessary. Moreover, as deterrence (especially general deterrence) is the primary purpose lying behind the penalty regime, there inevitably will be cases where the penalty that must be imposed will be higher, perhaps even considerably higher, than the penalty that would otherwise be imposed on a particular offender if one were to have regard only to the circumstances of that offender. In some cases the penalty may be so high that the offender will become insolvent. That possibility must not prevent the Court from doing its duty for otherwise the important object of general deterrence will be undermined.
(applicant’s emphasis retained)
[80] ABCC v CFMEU (No 2)(The BKH Contractors Case) [2018] FCA 1563 at [142]
[81] [2005] FCAFC 247
The senior management of the Union
At the time Mr Rielly was an employed Organiser of the Union [82]. He would not be regarded as senior management. However, as the evidence indicated, Mr Rielly had regional responsibility as an Organiser for the region from Grafton to Taree and attended on CPB in that capacity[83], and Mr Rielly was motivated by and acting on behalf of the Union’s interests.[84]
[82] FASOC paragraph 2 (admitted)
[83] Affidavit of Mr Rielly at [3] and [5]
[84] Liability Judgment at [182], [206]
Co-operation with authorities
The respondents did not co-operate with the Commissioner. Mr Rielly maintained his privilege against exposure to penalty (as he was entitled to do) until after the Commissioner had presented his case in court and been required to call Messrs Gray, Percival and Whitaker as witnesses, people who were not parties to the litigation or employed by a party. The respondents cast aspersions on those witnesses by alleging they were manufacturing their evidence, and Mr Rielly denied the contraventions, even though contemporaneous file notes and text messages made by Messrs Gray and Ryan supported the allegations against him. The Commissioner has been put to the time and expense of two hearings before the Court in order to establish the liability of the respondents.
Remorse or contrition
The respondents have given no evidence of remorse or contrition for the conduct leading to the contraventions. Absence of contrition or apology is not an aggravating factor, but it may affect any capacity for leniency.[85] “Viewed in the context of the emphasis that the recent authorities place upon compliance as the purpose to be served in fixing a pecuniary penalty, a lack of contrition may contribute to an assessment by a process of instinctive synthesis that a higher penalty than would be the case if the penalty were assessed solely by reference to the seriousness of the conduct would be appropriate... Reasoning in that way would not mean that a lack of contrition or apology of itself should lead to a higher penalty on the basis that the nature of the conduct is somehow seen to be aggravated by that failure. Rather, the failure to manifest contrition or insight into past behaviour might, together with other factors, lead a Court to conclude that a higher penalty is needed in the particular case in order to serve the purpose of deterring future contravention”.[86]
[85] Menon at [98]
[86] CFMMEU v ABCC [2020] FCA 1662 at [83] per Colvin J
The Commissioner’s proposed penalties
The statutory responsibility of the Commissioner is to enforce compliance with the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) and designated building laws (such as the Fair Work Act) regardless of whether the alleged contravenor is an employer, an employee, an industrial association or its officials. This case arose in the context of CPB negotiating a new EBA with its employees, a process regulated by a statutory regime in the Fair Work Act. The respondents sought to engage in unlawful action outside of the industrial relations system to coerce CPB in the exercise of its workplace rights relating to enterprise bargaining in order to achieve their industrial objectives, both by securing a CFMMEU EBA which covered the workers at the Yard, but also by excluding an already engaged labour hire contractor, to further the reach, power and influence of the Union in a demarcation dispute with another union.
The Commissioner submits that the penalties to be imposed on the respondents should be, subject to the Court’s consideration of the civil penalty principles discussed above, in the mid-range for Mr Rielly and in the high range for the Union. The higher range penalty for the Union should reflect its higher degree of culpability for the conduct of Mr Rielly “in its hands” and its history of prior offending to the point of recidivism, though the penalty must be imposed so as to ensure they are directed at the present contraventions and appropriate to those contraventions[87]. The range of penalty suggested is said to reflect the objective seriousness of the contraventions, the coercive and unlawful nature of the conduct, and to satisfy the requirements of specific and general deterrence.
[87] The Palmerston Police Station Case at [21], [26]

Respondent Contraventions Range Quantum

Mr Rielly Sections 348, 355 Mid range 45%-65% $5,670-$8,190

Mr Rielly Sections 340, 346 Mid range 45%-65% $5,670-$8,190

Union Sections 348, 355 High range 70%-90% $44,100-$56,700

Union Sections 340, 346 High range 70%-90% $44,100-$56,700
Personal penalty orders against Mr Rielly

The Commissioner submits that the Court should also make a personal penalty order against Mr Rielly under s 546 as set out in [10] of the Originating Application filed in the Federal Court on 28 November 2019. This is said to be appropriate where there is a need to guard against the undermining of the deterrent effect of civil penalties imposed on individual respondents by the Union paying their penalties. This undermining of deterrence by an organisation with deep pockets can be prevented if the Court makes a personal payment order preventing Mr Rielly from seeking indemnification for the penalties from the Union. Such orders were made by the Full Federal Court in The Non-Indemnification Personal Payment Case, at [38]-[47], following the confirmation by the High Court in ABCC v CFMEU[88] that s 546 of the Fair Work Act provided power to make them. The form of order proposed by the Full Federal Court appears at [44] of its decision.
[88] (2018) 262 CLR 157
Mr Rielly remains an employed Organiser of the Union[89].
Mr Rielly’s submissions on penalty
[89] Pages 362-363 of Exhibit ‘CHR-1’
General principles in determining pecuniary penalties
The “order” of applying the principles in assessing penalties for contraventions of provisions of the Fair Work Act was outlined by Bromwich J in Fair Work Ombudsman v NSH North Pty Ltd (t/as as New Shanghai Charlestown)[90] as follows:
(1)Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.
(2)Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the FW Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person.
(3) Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did.
(4) Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation.
(5) Consider the overall penalties arrived at, including by reference to those which may be proposed by the FWO ... and what is proposed by the respondents, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary...
(citations omitted)
[90] (2017) 275 IR 148, at [36]
The liability of the Union is based entirely upon the findings as to the conduct of Mr Rielly, in that the conduct, actions and state of mind of Mr Rielly was by reason of ss 363(1) and 793(1) of the Fair Work Act the conduct, actions and state of mind of the Union[91].
[91] See declaration 5 made on 3 March 2021 and the Liability Judgment at [208]-[209]
The Court should take the following steps.
Identify the separate contraventions
The separate contraventions found by the Court are contraventions of:
(a)section 348 by threatening to organise or take action against CPB with an intent to coerce CPB to engage in industrial activity, namely complying with a request that CPB ensure its employees become members of the Union, be covered by a Union EBA, and terminate its contract with Telum and instead engage a labour hire business approved by the Union whose workers were covered by [an] enterprise agreement to which the Union was party[92];
(b)section 355 by threatening to organise or take action against CPB with intent to coerce CPB to negate the choice of CPB to employ or not employ a particular person, or to engage or not engage a particular independent contractor, by pressuring CPB into replacing Telum with Lack Group or a labour hire contractor whose employees were covered by a Union;[93]
(c)section 346(b) by advising, encouraging or inciting CPB, by making threats intended to place pressure on CPB, to take action against Telum because Telum had engaged in industrial activity in that it had not advanced the interests of the Union by making a CFMMEU EBA or employing members of the Union[94]; and
(d)section 340 by advising, encouraging and inciting CPB by making threats intended to place pressure on CPB, to take adverse action against Telum because Telum had not exercised a workplace right by making a CFMMEU EBA[95].
Consider whether each separate contravention should be dealt with independently
[92] Liability Judgment at [20(d)], [186]
[93] Liability Judgment at [20(e)], [188], [190]
[94] Liability Judgment at [20(c)], [193], [198], [207]
[95] Liability Judgment at [20(b)], [193], [198], [207]
Apply course of conduct principles
Course of conduct and totality principles involve the Court examining the commonality of contravening conduct giving rise to separate civil penalties to ensure that the contravenor is not being visited with combined penalties that are disproportionate to the unlawfulness of the underlying conduct. In doing so, the Court should examine the substance, not the mere existence, of the identified civil penalty provisions.[96]
[96] See Rocky Holdings Pty Ltd at [18]-[23]
Notwithstanding the submission below that only one penalty order should be made due to the operation of s 556, the Court is required to consider the principles of course of conduct and/or totality.
“Course of conduct” is a principle long known to the common law. The test for determining “course of conduct” was referred to in Cahill[97] by the Full Federal Court as follows:
The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality.
(emphasis in original)
[97] at [39]
In doing so, the Court should examine the substance, not the mere existence, of the identified civil penalty provisions. While often closely associated with totality, common law course of conduct is conceptually distinct. In this case there is an interrelationship between the legal and factual elements of two or more contraventions by Mr Rielly. Accordingly the Court must take care to ensure that he is not deterred twice for what is essentially the same contravening conduct.
The contraventions of ss 348 and 355 are drafted in very similar terms. The contraventions of s 346 and 340 are also drafted in very similar terms. The Commissioner describes the same conduct giving rise to the s 348 and s 355 contraventions. The Commissioner also describes the same conduct as giving rise to the s 340 and s 346 contravention. The Commissioner goes on to state that the conduct on which these contraventions are based includes the conduct on which the s 348 and s 355 contraventions are based.
The Commissioner goes on to conclude “counterintuitively” that "in the Applicant’s submission these considerations support and warrant the Court, when applying course of conduct principles, penalising each contravention by a separate penalty".
On the Commissioner’s own reasoning, and on a proper application of the authorities, Mr Rielly is said to have been involved in a single course of conduct for the ss 340, 346, 348 and 355 contraventions. That would reflect the factual finding by the Court at [172] that:
Mr Rielly made a threat to prevent the delivery to the Project of precast products, coupled with a demand that all of the workers in the Yard be members of the Union and therefore covered by a Union EBA.
Consider the appropriate penalty
Section 546 of the Fair Work Act is set out in the broadest terms. The Fair Work Act gives no explicit guidance about the circumstances in which a penalty under a civil remedy provision will be appropriate nor does it suggest any criteria which might guide the Court as between imposing the maximum or near maximum penalty, or a “lower-end” amount[98].
[98] Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at [7]
The Court has a broad discretion not fettered by a checklist of mandatory criteria. Penalties are not a matter of precedent. The choice of penalty “must be dictated by the individual circumstances of a case, not by a line-by-line comparison with another case”. Courts should also be wary of attempting to clothe what is often an intuitive process with the trappings of science. The Courts have provided a number of checklists setting out some of the possibly relevant criteria. In Kelly v Fitzpatrick[99], Tracey J saw as relevant:
[99] (2007) 166 IR 14 at [14]
(a)the nature and extent of the conduct which led to the breaches;
(b)the circumstances in which that conduct took place;
(c)the nature and extent of any loss or damage sustained as a result of the breaches;
(d)whether there had been similar previous conduct by the respondent;
(e)whether the breaches were properly distinct or arose out of the one course of conduct;
(f)the size of the business enterprise involved;
(g)whether or not the breaches were deliberate;
(h)whether senior management was involved in the breaches;
(i)whether the party committing the breach had exhibited contrition;
(j)whether the party committing the breach had taken corrective action;
(k)whether the party committing the breach had cooperated with the enforcement authorities;
(l)the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
(m)the need for specific and general deterrence.
Such a list is necessarily inclusive.
Deterrence
It is now clear that civil penalties are not retributive[100]. As the High Court held in Commonwealth v Director, Fair Work Building Industry Inspectorate[101]:
No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance:
Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act] ... The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.
(footnotes omitted)
[100] Director of the Fair Work Building Industry Inspectorate v Robinson(2016) 241 FCR 338 at [64]–[65]
[101] at [55]
Proportionality
The notion of deterrence necessarily leads to questions of proportionality. The Full Federal Court in The Non-Indemnification Personal Payment Case held at [22]:
The overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct. The history of contravention is to be taken into account in fixing the proper level of penalty for the proportionate response to the contravention in question. Proportionality has within it the need to characterise the seriousness of the contravention. Proportionality of penal response to a contravention assessed by reference to its seriousness and gravity is an essential characteristic of the application of the statute. The penal response is for that contravention, not earlier contraventions ... Prior contraventions may reveal an apparent disregard for the Act and the need for deterrence by a penalty at a level appropriate to achieve that objective. It is to be borne in mind, however, that it is for the conduct in question that the penalty is imposed, not for prior conduct.
The Full Federal Court confirmed in Pattinson at [104]:
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 [102] 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.
Objective seriousness

The point made in those decisions was that, unlike the application of the course of conduct principle, under the double jeopardy principle differing elements of what constitutes particular contraventions, such as intended targets and motivations, can apply to exclude the operation of s 556 because the contraventions do not involve the same “particular conduct”. The Commissioner submits that the Court should therefore not apply s 556 to reduce the penalty to one per respondent.
Totality principle
I accept that this should be applied as a final check. Even if one arrived at the same conclusion as the respondents, namely that s 556 dictated only one penalty should apply for all four contraventions, the totality principle would apply to check if the quantum of penalty assessed at that point adequately reflected the nature and seriousness of the conduct involved.
If the Court accepted the respondents’ approach this should result in the single suggested penalty being increased to a level that fell within the overall aggregate range proposed by the Commissioner for each of Mr Rielly and the Union.
However, the proper approach is said to be and in my view is that proposed by the Commissioner.
The respondents provide no explanation or reason for the suggested reduction by two-thirds of penalties of $3,000 per contravention to $1,000 per contravention in their submissions. Having already proposed a low-range penalty, the respondents do not say why totality considerations warrant a two-thirds further reduction. The amount of $1,000, being less than one-twelfth of the maximum penalty, is said to be patently inadequate having regard to the coercive, deliberate, contumelious and persistent nature of Mr Rielly’s conduct, his lack of co-operation or expression of remorse. It could not be regarded by the Court as an appropriate deterrent in the Commissioner’s submission.
Mid-range for Mr Rielly
The reasons for a mid-range penalty for Mr Rielly are found in the Commissioner’s submissions extracted above. The Commissioner nowhere submits that Mr Rielly’s penalty should be higher because of the union’s history of contraventions. Mr Rielly’s conduct, as found in the Liability Judgment, speaks for itself.
Personal payment order
The Commissioner submits that the passage cited by the respondents from ABCC v CFMEU[118] at [34] of their submissions filed on 13 May 2021 does not establish a principle that personal payment orders are reserved for cases where there is a substantial level of specific deterrence required. The passage is the reasoning for finding that s 546 included within in it the power to make such orders. Personal penalty orders are also made to effect general deterrence.[119]
[118] (2018) 262 CLR 157
[119] ABCC v CFMEU (2018) 262 CLR 157 at [116]; ABCC v CFMMEU (Botany Cranes Case)(No 3) [2021] FCA 363 at [152]
Nor in the Commissioner’s submission does the passage in any way support the submission that if an order is made the penalty otherwise regarded as appropriate should be reduced, let alone halved. As the High Court stated in ABCC v CFMEU[120]:
An order that the contravenor not seek or receive indemnity from his or her co-contravenor in respect of a pecuniary penalty adds nothing to that penal outcome.
[120] (2018) 262 CLR 157At [123] per Keane, Nettle and Gordon JJ
The purpose of the order, as is clear from the passage cited, is to maintain the deterrent effect of the already assessed and quantified appropriate penalty for the individual respondent. There is no further stage of assessment of the appropriate quantum by reason of a personal penalty order.
The correspondence exhibited to the affidavit of Mr McCauley confirms that Mr Rielly remains an employee of the Union, operating now in Queensland.
Relevance of prior contraventions being committed by other internal branches of the Union
The respondents’ submissions relating to the internal organisational structure of the Union may have some relevance if the NSW Branch was sued as a separate respondent and penalties were sought against it independently of the federal union.[121]
[121] see Parker at [344]-[348]
In this case the federal union, constituted by its State branches and divisions, is the relevant respondent.
The respondents cite DFWBII v CFMEU[122] at [58], where it is recorded that the CFMEU put a similar argument to White J. His Honour responded as follows at [58] and [59]:
I do not consider it correct in principle that a previous contravention by an organisation which is otherwise relevant should be ignored altogether when fixing penalty, or be given less weight, only because it occurred in another State and by a different branch of the organisation. That is not to preclude the possibility that the evidence in a given case may suggest a proper reason for regarding a contravention committed within another branch as being of no, or less, relevance. That evidence may, for example, relate to the way in which the entity organises itself so as to make each branch autonomous, or indicate that the behaviour of one branch may be regarded as atypical of the organisation. There may be other possibilities, but such cases are unlikely to be commonplace.
In the present case, the respondents did not present any evidence of this kind. Accordingly, although I accept their submission that none of the contraventions of the CFMEU of s 43 of the BCII Act or of the other industrial provisions proscribing coercive conduct have occurred in South Australia, I do not regard that as diminishing the significance to be attached to the CFMEU’s antecedent history.
[122] (2014) 140 ALD 337
The respondents have not presented any evidence of the other branches which committed contraventions operated autonomously and without regard to the federal union. Nor is it the case that the behaviour of all of the other State branches is atypical.
Resolution
As noted above, I found that Mr Rielly contravened the following sections of the Fair Work Act by his conduct between 25 January and 14 March 2019:
(a)section 348 by threatening to organise or take action against CPB with intent to coerce it to engage in industrial activity by complying with a requirement of the Union to employ Union members, and enter into a CFMMEU EBA covering its employees and labour hire workers at its Precast Yard;
(b)section 355 by threatening to organise or take action against CPB with intent to coerce CPB to employ Union members and engage a labour hire independent contractor whose workers were covered by a CFMMEU EBA;
(c)section 346(b) by advising, encouraging or inciting CPB to take action against Telum because Telum had not advanced the interests of the Union by making a CFMMEU EBA; and
(d)section 340(1)(a)(ii) by advising, encouraging and inciting CPB to take adverse action against Telum because Telum had not exercised a workplace right by making a CFMMEU EBA.
The issues for the Court now are:
(a)the quantum of penalty or penalties to be imposed on Mr Rielly and the Union; and
(b)whether or not Mr Rielly should be subject to a personal payment order, as sought in order 10 of the Originating Application, under s 546 of the Fair Work Act.
Each of ss 340, 346, 348 and 355 are civil penalty provisions of the Fair Work Act. They are assigned penalties pursuant to the table at s 539 of the Fair Work Act (item 11 in the table). In each case a contravention of these sections is assigned a maximum penalty of 60 penalty units. Penalty units are defined in s 12 of the Fair Work Act with reference to s 4AA of the Crimes Act 1914 (Cth). Taking the definition of penalty unit as at the time of the conduct in early 2019[123], the version of s 4AA as applied at that time (and as continues to apply) was $210 per unit.
[123] The appropriate time: Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118
Section 546(2)(a) specifies that an individual cannot have imposed on them more than the maximum number of penalty units, that is, 60 units or $12,600. Section 546(2)(b) specified that a corporation may have imposed on it up to five times the maximum number of units, that is, 5 x 60 = 300 units or $63,000.
The “course of conduct” issue
There was some discussion at the penalty hearing as to whether the Court could issue a single penalty in relation to multiple contraventions of the Fair Work Act. The Commissioner submitted on the basis of ABCC v CFMEU[124] that this was not possible. The respondents submitted that they were not aware of a decision to this effect.
[124] (2017) 254 FCR 68
The respondents referred to the decision of Jessup J in General Manager of the Fair Work Commission v Thomson (No 4)[125] at [9]–[11] in relation to a similar although not identical provision in the Fair Work (Registered Organisations) Act 2009 (Cth). In doing so Jessup J discussed different options to deal with the issue:
One approach, it seems, has been to impose a penalty in respect of what may appear to be the most serious contravention, and to impose no penalty, or a much reduced penalty, in respect of other contraventions. There is a view, which attracted itself to the Full Court in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331, 350-351 [42] by analogy with the sentencing principles laid out in Pearce v The Queen[1998] HCA 57; (1998) 194 CLR 610, 623-624 [45], that this approach would involve the court turning its back on its statutory obligation to follow a finding of contravention with the determination of what was an appropriate penalty for that contravention, considered as an entity in its own right (save in a situation where the contravenor would thereby be “doubly punished ... for a single act”: Pearce at 624 [49]). I recognise, of course, that, after Fair Work Building, the judgment of the Full Court is no longer binding on the court as presently constituted, but the concern to which their Honours adverted remains.
Another approach which is occasionally seen has been to impose a single penalty in respect of a duality, or multiplicity, of contraventions. That appears to have been the approach taken by the magistrate in the proceeding from which the appeal which led to the judgment of the Full Court in Australian Opthalmic Supplies Pty Ltd v McAlary-Smith[2008] FCAFC 8; (2008) 165 FCR 560 was brought. Although their Honours held that proper effect had not been given to the totality principle in that case, they did not, it seems, interfere with the omnibus approach to the determination of penalties which had been taken by the magistrate. In my respectful view, the difficulty with such an approach is that, by taking it, the court would be failing to engage directly and specifically with the consequences of the contravention of each statutory norm.
A third approach, which I do not believe has hitherto been taken but which would avoid the conceptual issues to which I have referred, is suggested by the analogy of concurrent sentences. Under this approach, a penalty would be imposed in respect of each contravention considered as an entity in its own right, then a further order would be made that, upon payment of one of the penalties in each group within a time limited by the court, the operation of the order imposing penalties in respect of the other contraventions in the same group be permanently stayed. That is the approach which I propose to take in the present case.
[125] [2015] FCA 1433
The respondents were granted leave to provide a note on the point and did so on 28 June 2021.
The approach was discussed in Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor[126] and questioned at [41], [42]. The position was accepted in Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2)[127] at [423] and quoted with apparent approval in The BKH Contractors Case at [49]. It was followed in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2)[128] at [20].
[126] (2016) 313 FLR 126
[127] [2017] FCA 557
[128] [2015] FCA 1462
The point as to a single penalty is said to have been determined. The case of ABCC v CFMEU[129] was a case in relation to a contravention of s 49 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act). The penalty provision of that Act is in different (although in similar) terms to s 546 of the Fair Work Act.[130]
[129] (2017) 254 FCR 68
[130] See [55]
The reference at [35] of the Commissioner’s submissions filed on 26 March 2021 to [114] of that decision is clearly a reference to criminal sentencing. The quotation at [36] of the Commissioner’s submissions of [148] states in part that:
That is not to say that the Court can fix a single penalty for the multiple contraventions.
That paragraph needs to be read in the context of [149] that states:
In an appropriate case, however, the Court may impose a single penalty for multiple contraventions where that course is agreed or accepted as being appropriate by the parties. It may be appropriate for the Court to impose a single penalty in such circumstances, for example, where the pleadings and facts reveal that the contraventions arose from a course of conduct and the precise number of contraventions cannot be ascertained, or the number of contraventions is so large that the fixing of separate penalties is not feasible, or there are a large number of relatively minor related contraventions that are most sensibly considered compendiously... As with agreed penalties generally, however, the Court is not compelled to accept such a proposal and should only do so if it is considered appropriate in all the circumstances. It is also at the very least doubtful that such an approach can be taken if it is opposed or the proceedings are defended.
That judgment appears to conclude that it is doubtful that a single penalty can be imposed if such an order is opposed or the proceedings are defended.
In a case more clearly on point, Ross J of the Full Federal Court has since held in Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal)[131] at [90] that:
In contrast, at common law, even if a Court concludes that a number of contraventions [of the Fair Work Act] arise out of the one course of conduct, it is not bound to only impose one penalty. The Court may impose more than one penalty in order to ensure that the wrongdoing involved is adequately punished and the objects for fixing penalty have been adequately met.
(citation omitted)
[131] [2019] FCAFC 69
To similar effect; Rangiah J at [181] held that:
That may, but will not necessarily, result in a single penalty being imposed for multiple contraventions arising out of a course of conduct.
(original emphasis omitted)
The authorities were discussed in Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3)[132] and The Hutchinson Ports Appeal was followed at [117].
[132] (2020) 295 IR 197
At [8] of their Note filed on 28 June 2021 the respondents now recognise that ABCC v CFMEU[133] is Full Federal Court authority for the proposition that even if the Court accepts that multiple contraventions by the Union should be treated at common law as one course of conduct, a penalty has to be assessed and imposed for each contravention.
[133] (2017) 254 FCR 68
That was also a case where the parties had agreed that only one penalty should be imposed for multiple contraventions, at [109], but the Full Federal Court disagreed due to the operation of s 49 of the BCII Act (and s 546 of the Fair Work Act) in imposing a penalty in respect of each contravention[134].
[134] at [128], approving DFWBII v CFMEU [2016] FCA 413 at [60] per White J in relation to s 546)
The Full Federal Court referred at [134] to Draffin v CFMEU[135] where the Full Federal Court set aside the single penalties imposed by the primary judge for contraventions of two provisions and then imposed separate penalties.
[135] (2009) 189 IR 145
The Full Federal Court did the same in CFMEU v Williams[136] (where a union organiser committed two contraventions of s 43 of the BCII Act) and upheld a trial judge’s imposition of separate penalties for three contraventions of provisions by a union organiser in Cahill. At [39] the Full Federal Court stated, by way of example, that commonality of motive across different contraventions does not suffice to render them “the same criminality” for course of conduct principles.
[136] (2009) 262 ALR 417
The Full Federal Court also referred at [138] to Jessup J’s comment in Ponzio v B & P Caelli Constructions Pty Ltd[137] at [146]:
In a setting which did not involve an agreement on penalty, it would, therefore, be necessary to commence with an assessment of an appropriate penalty for each contravention, paying due regard to such mitigating factors as there were.
[137] (2007) 158 FCR 543
In the Thomson case relied on by the respondents, numerous contraventions were committed by Craig Thomson, and before considering the three “options” Jessup J recorded at [8]:
It was accepted, indeed submitted, by the applicant that it would be neither just nor appropriate for the respondent to be required to pay more than one penalty in those circumstances. On the other hand, she submitted that a principled approach to the imposition of penalties in such a situation would be one which involved the imposition of the appropriate penalty for each contravention. I was told that, although there have been different approaches to this issue taken by courts over the years, there has never been an authoritative ruling that any single approach is the correct one.
Since 2015 that authoritative ruling has been provided by the Full Federal Court in ABCC v CFMEU as detailed above. It is also clear from [9]-[10] of Thomson that Jessup J’s first two options were no longer available even then. The third option does not involve imposing a single penalty.
At [4] of the Note the respondents state that “the approach” and “the position” was accepted in Grouped Property Services Pty Ltd. It is not clear what approach and position the respondents are referring to. What Katzmann J did state in that case at [423] was:
It seems to me, however, with the greatest respect, that grouping contraventions in such a way as to impose one penalty for multiple contraventions is wrong.
That was the passage approved by Flick J in The BKH Contractors Case at [49].
In the further case referred to by the respondents, DFWBII v CFMEU (No 2)[138] Jessup J himself said that he would follow his approach in Thomson, but what he meant by that was that principle required him to fix separate penalties for a union organiser’s contraventions of ss 355 and 346 of the Fair Work Act. He stated at [20]:
But there are important distinctions between ss 355 and 346 which should not, in my view, be airbrushed out of the record for no better reason than the commonality of much of the conduct which led to findings of contraventions of each.
[138] [2015] FCA 1462
In cases where the sheer number of contraventions would result, through separate penalties being assessed, in a disproportionate aggregate penalty, adjustment can be made, as the Commissioner has submitted, by imposing lower penalties for some of the contraventions, or by adjustment at the final totality principle stage.
To the extent Ross J and Rangiah J in The Hutchison Ports Appeal at [90] and [181] suggest that there is some discretion to impose a single penalty even if course of conduct principles are applied at common law, the above authorities contradict that suggestion. In that case the common law principle was not applied at all (see [98]) because s 557 applied, so it is no authority for the imposition of a single penalty for multiple contraventions. Further, Rangiah J himself stated in ABCC v CFMMEU (The Nine Brisbane Sites Appeal)[139] (Allsop CJ and Griffiths J agreeing) at [132]:
It was an error for the primary judge to take the approach that only a single penalty up to the statutory maximum for one contravention was available for multiple contraventions arising within a single course of conduct.
[139] [2019] FCAFC 59

That passage was cited with approval as “the correct approach” by Banks-Smith J in Chevron Australia Pty Ltd referred to at [11] of the respondents’ Note. It is correct that at [116]-[117] Banks-Smith J went on to state that it was appropriate to impose “a single fine” on the union for its two contraventions of s 417 (following a second Hutchison Ports penalty decision ([2019] FCA 1942) by a single judge of the Court, not the Full Federal Court Hutchison Ports Appeal decision), in contradiction of the judge’s own preceding analysis of principle. The Commissioner submits that that approach was wrong in principle according to the above Full Federal Court authorities and should not be followed.
In the present case, while there are various contraventions established, based upon the conversations between Mr Rielly and representatives of CPB, there were in essence four contraventions involving breaches of ss 340(1)(a)(ii), 346(b), 348 and 355, which, at common law, can be treated as four courses of conduct. That is the approach ultimately favoured by the Commissioner and I accept his submissions.
I accept the respondents’ submission that s 556 has work to do in this case as there is considerable overlap between the breaches of ss 348 and 355 and also between ss 346(b) and 340(1)(a)(ii). In my view, the imposition of four penalties for these contraventions would offend against the double jeopardy principle and only two penalties should be imposed.
Mr Rielly seeks low range penalties in relation to his own actions, having regard to the fact that there is no evidence or any prior or subsequent contraventions by him. In addition, while coercive threats were made, they were not carried out. This was a case of attempted coercion which failed when CPB resisted it. Nevertheless, I accept the Commissioner’s submission that coercion, even when unsuccessful, is a serious breach of the legislation which calls for the imposition of penalties in the mid rather than low range. The Commissioner seeks penalties of between $5,670 and $8,190 in relation to the established breaches. In my view, a penalty of $5,000 for each course of conduct, as modified by the double jeopardy principle, is an appropriate penalty to impose. I will impose penalties of $5,000 for the consolidated breaches of ss 348 and 355 and $5,000 for the consolidated breaches of ss 340 and 346, making a total penalty imposed on Mr Rielly of $10,000.
I also accept the Commissioner’s submission that the Union should be subject to high range penalties. There is overwhelming evidence of recidivism by the Union which calls for the imposition of a higher range penalty than on the individual (Mr Rielly) in respect of whom there is no evidence of recidivism at all. While it is not apparent that the imposition of very large penalties in many earlier cases has had any deterrent impact upon the Union, it does not follow that the Court should, in effect, throw up its hands and abandon attempts to have the law enacted by Parliament respected. The Union may disapprove of the legislation under which the Commissioner operates and may seek its repeal or amendment. In the meantime, however, the Union must comply with that law.
In some cases, a person or organisation opposed to a particular law may set out to breach it and, consistently with their principles, will then seek the imposition of the highest penalty possible in order to draw attention to what they see as the injustice of the law. That is not the case here. The Union seeks the imposition only of very modest penalties.
I prefer the Commissioner’s submissions on the appropriate quantum of penalty in respect of the breaches attributable to the Union. In relation to the four courses of conduct, consolidated to two, consistently with the double jeopardy principle, I will impose penalties of $40,000 upon the Union for each of the consolidated infringements of ss 348 and 355 and ss 340 and 346, making a total penalty of $80,000.
There is nothing in this case to cause me to increase or reduce the above penalties when regard is had to the totality principle. The penalties that I have decided to fix are, in my opinion, consistent with that principle.
I have decided not to make a personal penalty order against Mr Rielly under s 546. It is in my view unnecessary in order to establish a deterrent effect upon Mr Rielly, against whom there is no evidence of any prior or subsequent infringements. As an Organiser of the Union, Mr Rielly was carrying out what he perceived to be actions in the interests of the Union, in respect of which the Union should take the greater responsibility. Further, Mr Rielly impressed me as a witness. He was moderate, polite and clear in giving his evidence. While he denied any infringing conduct, and that conduct has been established, it is also apparent that initially Mr Rielly attempted to pursue the Union’s objectives in a friendly and moderate manner. It was only when he encountered resistance that he resorted to attempted coercion. There will be no personal penalty order against Mr Rielly.
CONCLUSION
I will make orders imposing penalties against Mr Rielly equalling $10,000 and penalties against the Union totalling $80,000.

I certify that the preceding one hundred and eighty-three (183) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.
Dated: 28 January 2022

File number(s):	SYG 1031 of 2020
Judgment of:	JUDGE DRIVER
Date of judgment:	28 January 2022
Catchwords:	INDUSTRIAL LAW – FAIR WORK – Assessment of penalties.
Legislation:	Building and Construction Industry Improvement Act 2005 (Cth), ss.43, 49 Building and Construction Industry (Improving Productivity) Act 2016 (Cth) Crimes Act 1914 (Cth), s.4AA Fair Work (Registered Organisations) Act 2009 (Cth) Fair Work Act 2009 (Cth), ss.340, 346, 348, 355, 363, 539, 546, 556, 557, 793
Cases cited:	ABCC v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367 ABCC v CFMEU (2017) 254 FCR 68 ABCC v CFMEU (2018) 262 CLR 157 ABCC v CFMEU (No 2)(The BKH Contractors Case) [2018] FCA 1563 ABCC v CFMEU(The Perth Airports Case) (2017) 249 FCR 458 ABCC v CFMMEU (Botany Cranes Case)(No 3) [2021] FCA 363 ABCC v CFMMEU (Syme Library Case) (No 2) [2019] FCA 1555 ABCC v CFMMEU (The Castlemaine Police Station Case No 2) [2020] FCA 202 ABCC v CFMMEU (The Nine Brisbane Sites Appeal) [2019] FCAFC 59 ABCC v CFMMEU (The North Queensland Stadium Case) (No 2) [2021] FCA 105 ABCC v Huddy [2017] FCCA 1088 ABCC v Menon [2020] FCA 1418 ABCC v Parker (No 2) [2017] FCCA 1082 ABCC v Pattinson [2021] HCATrans 90 ACCC v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 ACCC v High Adventure Pty Ltd [2005] FCAFC 247 ACCC v Yazaki Corporation [2018] FCAFC 73 Australian Building and Construction Commissioner v CFMEU (The Kane Constructions Case) (No 2) [2017] FCA 368 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) (No 2) [2021] FCA 263 Australian Building and Construction Commissioner v Rielly (No 2) [2021] FCCA 43 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 CFMEU v Cahill (2010) 194 IR 461 CFMEU v Williams (2009) 262 ALR 417 CFMMEU v ABCC [2019] FCAFC 201 CFMMEU v ABCC [2020] FCA 1662 CFMMEU v ABCC (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 CFMMEU v ABCC (The Palmerston Police Station Case) [2021] FCAFC 7 Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) (2020) 295 IR 197 Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 Darlaston v Parker (No 2) (2010) 200 IR 353 DFWBII v CFMEU (No 2) [2015] FCA 1462 DFWBII v CFMEU (2014) 140 ALD 337 DFWBII v CFMEU [2016] FCA 413 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 Director of theFair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union & Ors [2016] FCCA 1692 Director, Fair Work Building Industry Inspectorate v Cradden [2015] FCA 614 Director of the Fair Work Building Industry Inspectorate v Robinson(2016) 241 FCR 338 Draffin v CFMEU (2009) 189 IR 145 Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor (2016) 313 FLR 126 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown (2017) 275 IR 148 General Manager of the Fair Work Commission v Thomson (No 4) [2015] FCA 1433 Johnson v The Queen (2004) 205 ALR 346 Kelly v Fitzpatrick (2007) 166 IR 14 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118 Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 Parker v ABCC (2019) 270 FCR 39 Pattinson v ABCC (2020) 384 ALR 75 Pearce v The Queen (1998) 194 CLR 610 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) (2014) 97 ACSR 412 Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 Veen v The Queen (No 2) (1988) 164 CLR 465 Williams v Construction, Forestry, Mining & Energy Union (No 2) (2009) 182 IR 327
Division:	Division 2 General Federal Law
Number of paragraphs:	183
Date of last submission/s:	6 July 2021
Date of hearing:	24 June 2021
Place:	Sydney
Counsel for the Applicant:	Mr M S White SC
Solicitors for the Applicant:	Clayton Utz
Counsel for the First and Second Respondents:	Mr I Latham
Solicitors for the First and Second Respondents:	Taylor & Scott Lawyers
Solicitor for the Third Respondent:	Mr I Simic of Taylor & Scott Lawyers

SYG 1031 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	DEAN RIELLY First Respondent PAUL FITZPATRICK Second Respondent CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Third Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	28 JANUARY 2022

Respondent	Contraventions	Range	Quantum
Mr Rielly	Sections 348, 355	Mid range 45%-65%	$5,670-$8,190
Mr Rielly	Sections 340, 346	Mid range 45%-65%	$5,670-$8,190
Union	Sections 348, 355	High range 70%-90%	$44,100-$56,700
Union	Sections 340, 346	High range 70%-90%	$44,100-$56,700