Cement Australia Pty Ltd v Transport Workers' Union of Australia
[2016] FCCA 76
•19 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEMENT AUSTRALIA PTY LTD v TRANSPORT WORKERS’ UNION OF AUSTRALIA | [2016] FCCA 76 |
| Catchwords: INDUSTRIAL LAW – Penalty hearing – unlawful industrial action under the Fair Work Act 2009 (Cth) – accessorial liability of Union organiser – TWU taken to have committed contravention – imposition of appropriate penalty – relevant factors. |
| Legislation: Crimes Act 1914 (Cth), s.4AA(1) Fair Work Act 2009 (Cth), ss.12, 19(1), 201(2), 417(1), 418, 539(2), 546(2)(b), 550(1), 557(1), 793(1) Fair Work (Registered Organisations) Act 2009 (Cth) |
| Cases cited: Director of Fair Work Building Industry Inspectorate v Cartledge [2014] FCA 1047 Director of the Fair Work Building Industry Inspectorate v CFMEU (2014) 140 ALD 337 Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672 Fair Work Ombudsman v Transport Workers’ Union of Australia & Anor [2010] FMCA 826 Fair Work Ombudsman v Transport Workers’ Union of Australia [2010] FCA 768 Qantas Airways Ltd v Transport Workers’ Union of Australia (No 2) [2011] FCA 816 Ponzio v B&P Caelli Constructions Pty Ltd (2007) 158 FCR 543 |
| Applicant: | CEMENT AUSTRALIA PTY LTD |
| Respondent: | TRANSPORT WORKERS’ UNION OF AUSTRALIA |
| File Number: | BRG 536 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 12 October 2015 |
| Date of Last Submission: | 12 October 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 19 January 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Herbert |
| Solicitors for the Applicant: | McCullough Roberston |
| Counsel for the Respondent: | Mr Gibian |
| Solicitors for the Respondent: | Maurice Blackburn Lawyers |
ORDERS
BY CONSENT THE COURT DECLARES THAT:
On 29 and 30 May 2014 the Transport Workers’ Union of Australia contravened s.417(1) of the Fair Work Act 2009, in that on those dates:
(a)members of the Transport Workers’ Union of Australia employed by Cement Australia Pty Ltd took unprotected industrial action on a day when the taking of such action was prohibited by s.417(1) of the Fair Work Act 2009; and
(b)the Transport Workers’ Union of Australia is taken to have contravened s.417(1) of the Fair Work Act 2009 by operation of s.793(1) of the Fair Work Act 2009 by reason of its organiser Grahame Hastings being involved in the unprotected industrial action within the meaning of s.550(2)(c) of the Fair Work Act 2009 taken by employees of the Cement Australia Pty Ltd.
THE COURT ORDERS THAT:
Pursuant to s.546(1) of the Fair Work Act 2009 the Transport Workers’ Union of Australia pay a pecuniary penalty of $25,500 within 28 days of the Court’s order.
Pursuant to s.546(3)(b) of the Fair Work Act 2009 the Transport Workers’ Union of Australia pay to Cement Australia Pty Ltd the sum referred to in order 1 above.
The penalty provided for in order 1 be paid within 28 days of this order.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 536 of 2014
| CEMENT AUSTRALIA PTY LTD |
Applicant
And
| TRANSPORT WORKERS’ UNION OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
By this application Cement Australia Pty Ltd alleges that the Transport Workers’ Union of Australia is taken to have contravened s.417(1) of the Fair Work Act 2009 (Cth) because one of its organisers, the second respondent Mr Graham Hastings, was knowingly concerned in contraventions of s.417(1) of the Act that were committed by a number of the applicant’s employees.
The parties to this proceeding agree that several of the applicant’s employees engaged in industrial action in the period between the date of approval of an enterprise agreement covering the applicant and those employees and the nominal expiry date of that agreement. Engaging in industrial action in such circumstances contravenes s.417(1) of the Act.
The TWU admits the contravention of the Act by the applicant’s employees. It admits that Mr Hastings is taken to have committed the contraventions because he was knowingly concerned in the contraventions for the purposes of s.550(1) of the Act. The TWU also admits its liability to the imposition of a pecuniary penalty for the contraventions that Mr Hastings is taken to have committed.
The applicant initially also sought the imposition of a pecuniary penalty upon Mr Hastings on the basis that Mr Hastings was involved in the contravention for the purposes of s.550(1) of the Act. However, it no longer pursues the proceedings against Mr Hastings and has discontinued them against him.
These reasons are about the penalty that is to be imposed upon the TWU for the contravention of s.417(1) of the Act that it admits it is taken to have committed.
The applicant has filed a Statement of Agreed Facts, upon which I have relied. What follows by way of background is drawn largely from the Statement of Agreed Facts and the parties’ submissions, both written and oral. None of what follows is controversial.
Background
The applicant operates a business manufacturing and transporting cement and related products throughout New South Wales.
The first respondent is an organisation defined in s.12 of the FW Act and registered under the Fair Work (Registered Organisations) Act 2009 (Cth).
Graham Hastings is an employed organiser working within the New South Wales branch of the TWU and an officer of the TWU for purposes of s.12 of the Act.
On 29 May, 2014 Cement Australia had in its employ 24 permanent drivers and three casual drivers. The drivers were required to perform road transport duties by driving trucks carrying cement and fly ash from depots operated by Cement Australia to its customers at various locations in New South Wales.
The Cement Australia Pty Limited Transport Employees (NSW) Enterprise Agreement 2013 covered the TWU in accordance with s.201(2) of the Act. The Agreement was in force from 12 November, 2013. It was to nominally expire on 30 April, 2016. The Agreement applied to transport driver employees of the applicant who drove trucks transporting cement and related products such as fly ash by road in New South Wales.
Clause 10 of the Agreement provides a grievance and disputes procedure. It is a five step process which encourages the settlement of disputes by negotiation, or, if not successful, by conciliation and/or arbitration by the Fair Work Commission, with full rights of appeal.
On 29 May, 2014 at approximately 3:00pm employees and drivers of the applicant, Mr Michael Zadnik and Mr Sean O’Connor, met with the applicant’s logistics manager, Mr Kenny. Mr Kenny instructed Mr Zadnik and Mr O’Connor to mentor a new employee in accordance with the training procedures adopted by the applicant. However, Mr Zadnik and Mr O’Connor, amongst others, had become concerned with the training procedures adopted by the applicant. Mr Zadnik informed Mr Kenny that a ‘yard vote’ had been taken by the applicant’s employees. As a result, he refused to mentor the new employee as he had been instructed.
Mr Zadnik subsequently made contact with TWU delegates Stephen Pellow and Darren Beverly. During the afternoon of 29 May, 2014 extensive telephone discussions occurred between Mr Hastings, Mr Zadnik, Mr Pellow and Mr Beverly. Throughout these conversations Mr Hastings encouraged Mr Pellow and Mr Beverly to encourage the applicant’s truck drivers to take industrial action and stop work.
At about 4:30pm that afternoon Mr Beverly sent a text message to all of the applicant’s drivers. It said:
Men I’ve been told by the TWU and Grahame Hastings for ALL members to return to there [sic] depots park up and go home. This is coming from the TWU.
The text message was sent on Graham Hastings’ instructions. The TWU accepts that Mr Hastings organised the stoppage.
On 29 May, 2014 four drivers employed by the applicant called in absent either before, at, or after their respective starting times. Of the remaining, 19 of the 21 permanent drivers were scheduled to finish between 2:00am and 4:00am on 30 May, 2014.
At or before 6:45pm on 29 May, 2014 19 of the applicant’s drivers refused to commence work or to perform further work for the balance of the shift on which they were then engaged. At or before 9:00pm a further three of the applicant’s drivers who had commenced work on their shift parked their trucks at the respective depots to which they had been assigned and refused to perform any further work.
The action undertaken by the drivers was not authorised or approved by the applicant. It was undertaken without notice to the applicant and without recourse to the dispute resolution procedures in the Agreement.
At no time material to these proceedings did Mr Hastings encourage or facilitate the applicant’s drivers, or the TWU, to engage the grievance and disputes procedure provided for in clause 10 of the Agreement.
On 30 May, 2014 the applicant sought and was granted an order pursuant to s.418 of the Act by the Fair Work Commission requiring the employees to return to work.
As a consequence of the drivers’ actions, the applicant was prevented from delivering and selling 57 loads of cement or fly ash. The gross revenue lost by the applicant from those loads was $234,600.
The cement and fly ash had been ordered, and was required for use, by the applicant’s customers engaged in the manufacture of concrete for building construction activity in the greater Sydney area. Interruption in the supply of cement and fly ash without notice to the applicant’s customers caused disruption and inconvenience to the supply chain of concrete to that part of the building industry serviced by the applicant. It caused inconvenience to staff members of the applicant who were required to engage in management of the consequences of the drivers’ actions by liaising with customers throughout the night of 29 May, 2014 and seeking to source alternate supplies of cement and fly ash.
The employees for the day shift commenced normal work as and from 3:00am on 30 May, 2014. During that day Mr Hastings caused the applicant’s drivers rostered to work that night to be contacted and instructed to attend work and perform work as normal on that day.
The Contravention
The parties agree that:
a)by refusing to commence, or to complete their assigned shifts, the applicant’s employees engaged in action that was industrial action within the meaning of s.19(1) of the Act in that it was:
i)the adoption of a practice in relation to work by each of those employees, the result of which was a restriction on the performance of work by each of those employees; and/or
ii)a ban, limitation or restriction on the performance of work by each of those employees; and/or
iii)a failure or refusal by employees to perform any work at all on the part of employees who had attended for work;
b)each of the employees involved in the industrial action contravened s.417(1) of the Act;
c)for the purposes of s.550(1) of the Act, Mr Hastings was directly or indirectly, knowingly concerned in or party to the contraventions of s.417(1) of the Act committed by the applicant’s employees;
d)the TWU is a body corporate for purposes of s.793 of the Act and an industrial association as defined in s.12 of the Act;
e)Mr Hastings was an officer of the TWU and by operation of s.793(1) of the Act his actions are taken for the purposes of the Act to have been engaged in by the TWU;
f)the TWU is to be taken to have been knowingly concerned in the employees’ contraventions of s.417(1) of the Act.
The parties have each approached the application on the basis that there is a single contravention of the Act by Mr Hastings and by the TWU. Indeed, on one view of the applicant’s submissions, the applicant might even be taken to be suggesting that there was only one contravention of the Act by the applicant’s employees collectively.
However, that approach is, in my view, erroneous.
Each employee, on the facts agreed in the statement of agreed facts, contravened s.417(1) of the Act. Thus, there are at least 22 contraventions of s.417(1) of the Act. Because those contraventions involve different persons (each individual employee) they cannot be taken to constitute a single contravention pursuant to s.557(1) of the Act.
By reason of the admissions contained in the statement of agreed facts and s.550(1) of the Act, Mr Hastings is taken to have committed each of the contraventions because he was involved in each one. That is to say, he is taken to have committed each of the 23 contraventions. However, it is important to understand that s.550(1) is not itself a civil penalty provision. It does not create an obligation the contravention of which leads to liability under the Act. It creates accessorial liability, but only where the Act has otherwise been contravened by another.
The effect of s.550(1) is to put the accessory – Mr Hastings in this case – in the same position as the primary contravener. The accessory is taken to have contravened that provision. Mr Hastings is placed in the same position as each of the employees. Arguably, that leads to the conclusion that in respect of each of the contraventions that Mr Hastings is taken to have committed, they have been committed by the same person. They have arisen out of a course of conduct by Mr Hastings, namely his incitement of the applicant’s drivers to withdraw their labour. In those circumstances, and because s.417(1) is specified in the list of civil penalty provisions to which s.557(1) applies, the operation of s.557(1) of the Act is attracted. The result is that Mr Hastings is taken to have committed a single contravention.
Two observations need to be made about that approach. First, the parties did not argue the case in the way in which I have just explained. They approached the case on the basis that there was only ever one contravention – by the employees seemingly collectively, for which Mr Hastings bore accessorial liability and which the TWU is taken to have committed. Second, I said arguably above because the approach I have set out is not without its difficulty, particularly concerning the application of s.557(1) to multiple contraventions by different parties for which one person is liable as an accessory. But the point was not the subject of argument at all (because of the way the parties approached the case).
In deference to the way in which the parties presented the case, I have adopted an approach which is both consistent with my explanation of the operation of the Act and the way in which the case was argued by the parties.
There is another way in which the same result (in terms of the number of contraventions for which a penalty is imposed) might be reached. Even if s.557(1) of the Act does not apply because the contraventions that Mr Hastings are taken to have committed have not been committed by the same person for the purposes of s.557(1) of the Act, the Court may, nonetheless, take into account the circumstances in which the contraventions occurred. If they are the result of a course of conduct and they involve overlapping considerations, the Court might determine to fix a penalty for one of the contraventions but not the others. Alternatively, it might determine to fix penalties for all contraventions, but at a level that reflects the commonality across the contraventions. A contravener is not to be punished more than once for the same contravening conduct.
As I have already indicated, in this case I think that s.557(1) of the Act is engaged and so, for the reasons set out above, there is one contravention of s.417(1) taken to have been committed by Mr Hastings, for which the TWU is also taken to be liable.
Consideration
There are three generally accepted purposes for imposing penalties in an industrial context such as the present, namely punishment, deterrence and rehabilitation: Ponzio v B&P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at [93]; Director of Fair Work Building Industry Inspectorate v Cartledge [2014] FCA 1047 at [51].
The maximum penalty that might be imposed upon the TWU in this case is $51,000. Item 14 of s.539(2) of the Act indicates that the maximum penalty for a contravention of s.417(1) is 60 penalty units for an individual or five times that amount for a corporation (s.546(2)(b)). At the time of the contravention in this matter, a penalty unit was set at $170 by s.4AA(1) of the Crimes Act 1914 (Cth). Accordingly, the maximum penalty for a body corporate in this matter is 300 penalty units or $51,000.
Mr Hastings’ conduct was the incitement and encouragement of the applicant’s employees to withdraw their labour. That was his involvement in their contraventions. But it is important, I think, to understand that the contravention for which a penalty must be imposed is not the organisation of unprotected industrial action. It is not alleged that Mr Hastings breached s.417(1) of the Act as a principal actor. It is not alleged for example that he breached the Act through his organisation of the relevant industrial action. Why that is so is not clear.
The relevant conduct is his knowing involvement in the employees’ industrial action, through his counselling and procuring that conduct to occur. The line maybe be fine between the two positions, but it is necessary to draw it.
The industrial action that Mr Hasting encouraged the applicant’s employees to take arose from a concern held by the employees that the training procedures relating to ‘mentoring’ that had been implemented by the applicant were not satisfactory or appropriate. Be that as it may, the concerns:
a)did not relate to an imminent risk of harm (within the meaning of s.19 of the Act); and
b)were acted upon in a way that paid no attention to the grievance and dispute settlement procedures set out in the Agreement.
The TWU submitted that the industrial action was a result of a single “incident” of which the number of employees involved was significantly small. I take into account that the relevant industrial action was confined to one event in which some twenty or so employees participated. Nonetheless, to have 22 drivers out of 27 employed by the applicant (24 full-time and 3 casuals) could not be seen to be insignificant. Moreover, whilst the withdrawal of labour was only for a period of several hours and the employees “stopped work for one shift or part of a shift only”, the consequences of the action were far from insignificant. The employees concerned were critical to the delivery of product by the applicant to its customers. It had a direct impact upon the income of the applicant. The parties agree in the Statement of Agreed facts that the action caused interruption to the supply of cement and fly ash without notice to the applicant’s customers which in turn caused disruption and inconvenience to the supply chain of concrete to that part of the construction industry serviced by the applicant.
The TWU argues that the call for action was initiated by the relevant employees, specifically Mr Zadnik, Mr Pellow and Mr Beverly and that the culpability of Mr Hastings and the TWU is thereby reduced. However, I do not agree. Mr Hastings, the TWU’s organiser, was not obliged to act on their concerns by inciting them to unprotected industrial action. Indeed, he was obliged to do the contrary by counselling them to abide by the grievance and dispute resolution procedures of the Enterprise Agreement. The liability of the TWU is solely reliant on s.793 of the Act and the TWU’s relationship with Mr Hastings. The employees sought guidance from their Union’s organiser and were given incitement to contravene the Fair Work Act rather than to work with the applicant in accordance with the Enterprise Agreement.
The industrial action undertaken by the employees was deliberate. Mr Hastings incitement of them to it was deliberate. However, I accept that the industrial action was not “pre-mediated” or part of an overall strategy. It occurred within 1.5 hours of the precipitating event. It was not part of a pre-meditated industry strategy by the TWU or part of some orchestrated, concerted or deliberate campaign of industrial action.
I accept the TWU’s submission that the actions were not “directed towards any ulterior or improper outcomes beyond demonstrating the ability to ignore” the grievance and dispute resolution processes. But that of itself is an improper outcome. To seek to demonstrate an ability to ignore the grievance and dispute resolution processes denudes the process that lead to the making of the Enterprise Agreement and the Agreement itself of force and purpose.
There is nothing to suggest that either Mr Hastings nor the employees contemplated the flow-on effects that their actions would have upon those to whom the relevant product was to be supplied during the period of the stoppage.
The evidence is that some disruption and inconvenience was incurred by the applicant and its staff who were responsible for managing the consequences of the stoppage.
The applicant claims that it suffered economic loss as a result of the stoppage, but it no longer pursues recovery of that loss in these proceedings. In that respect, the applicant claims that $234,600 worth of invoiced sales was lost. The evidence provides no quantifiable economic loss or damage to the applicant beyond that sales figure. But that is a sales figure and does not represent the loss actually sustained by the applicant. The evidence does not inform me of that amount.
The TWU submits that it has not contravened the Act since its commencement on 1 July, 2009. However, the TWU has breached provisions of it pre-cursor, the Workplace Relations Act 1996 (Cth) on three occasions. It has been some six years since the TWU’s last contravention of Commonwealth industrial legislation.
The TWU has previously contravened industrial legislation on three occasions, namely:
a)Fair Work Ombudsman v Transport Workers’ Union of Australia [2010] FCA 768; (2010) 202 IR 411: Besanko J imposed a penalty of $35,000 for two contraventions of s.494 of the WR Act on 12 December 2007 in Adelaide and Melbourne;
b)Fair Work Ombudsman v Transport Workers’ Union of Australia & Anor [2010] FMCA 826: Barnes FM (as her Honour then was) imposed a penalty of $9,900 for the contravention of s.494 of the Workplace Relations Act on 16 February, 2009 in Sydney;
c)Qantas Airways Ltd v Transport Workers’ Union of Australia (No 2) [2011] FCA 816; (2011) 211 IR 119: Moore J imposed a penalty of $20,000 for a contravention of s.494 of the Workplace Relations Act on 31 March 2009 in Sydney, Brisbane, Adelaide and Perth.
Section 494 of the Workplace Relations Act was a similar provision to s.417 of the Fair Work Act: a prohibition of industrial action before nominal expiry date of workplace/enterprise agreement.
Whilst the respondent does not submit that it is not appropriate to look to the above cases so as to understand that the TWU has been found to have contravened the relevant industrial legislation on previous occasions, the TWU submits that contraventions in “other branches of the TWU” ought to be given less weight.
However, I reject that argument for the reasons given by White J in Director of the Fair Work Building Industry Inspectorate v CFMEU (2014) 140 ALD 337 at [58] and Gilmour J in Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672 at [58] – [60]. Respectfully, adapting the words of Gilmour J in Upton, the TWU is a national organisation and should be regarded as such where considerations of penalty, in particular, the promotion of specific deterrence are under consideration.
The TWU points out that it is a substantial union with approximately 90,000 members across Australia working in a variety of industries and occupations connected to transport. It has five branches across Australia and operates in all States and Territories. The TWU submits that given the size and extent of its operations, the fact that it has not previously contravened the Act since it commenced operation more than six years ago must be taken to represent a good record which should be appropriately considered in setting an appropriate penalty. I take that into account.
The three cases to which I have referred above demonstrate an ongoing deficiency with the training and supervision of its officers concerning the requirements of the Act, Enterprise Agreements and proper dispute resolution procedures.
I bear in mind that a respondent is not to be punished again for prior conduct. Prior conduct may diminish leniency by reason of its character, having an upward effect on a penalty that nonetheless must be within the proper limits indicated by the circumstances of the conduct the subject of the contravention before the Court.
The TWU has admitted the contravention and its culpability, albeit only after mediation occurred. The TWU assisted in the composition of a Statement of Agreed Facts.
As a mark of its contrition, in its written submissions filed on 12 October, 2014 the TWU:
makes the following statement in relation to the incident of 29-30 May, 2014:
The Transport Workers’ Union expresses its regret that in the pursuit of ensuring appropriate and safe training arrangements for new drivers, its organiser was involved in industrial action which caused some disruption and inconvenience in cement deliveries by the applicant to construction sites in Sydney.
The TWU argues that I should accept the statement as a genuine expression of contrition. However, in my view the statement attracts very little weight at all for the following reasons:
a)there is no evidence that it has been published anywhere other than in the TWU’s written submissions in this case. There is no evidence that it has, for example, been promulgated to the applicant’s customers who were affected by the unlawful industrial action;
b)it has come very late in these proceedings, which were commenced in June, 2014; and
c)the wording of the statement does not suggest that the action taken was unlawful, was in breach of the Fair Work Act or was otherwise contrary to the Enterprise Agreement that was in place at the time.
In my view, it is hardly a statement of contrition or regret at all. In the absence of an acknowledgement of wrongdoing, the statement is of very little value.
The TWU has undertaken corrective action to ensure its officials are appropriately aware of the requirements of the Act and the importance of compliance to relevant provisions. There is evidence, which I accept, to the effect that the first respondent has, since the events of the contravention, trained and informed Mr Hastings with respect to the responsibilities and obligations associated with being an official of the TWU. That is a matter of substance because it demonstrates an acceptance of the relevant wrongdoing and evidence an attempt to ensure that the offending conduct is not repeated. That is to say, it is relevant to the question of specific deterrence.
There is evidence, which I accept, that on 15 September, 2015 the TWU NSW/ACT branch Secretary, Mr Aird, addressed officials in relation to the circumstances in which industrial action is authorised under the Act and that officials are aware of:
a)requirements of the Act regarding industrial action;
b)the importance of compliance with such requirements;
c)the circumstances in which industrial action is authorised; and
d)other material regarding statutory requirements for industrial action.
I am satisfied that the TWU has taken corrective steps in an attempt to ensure future compliance with the Act by its officers.
Parties to “industrial instruments”, such as enterprise agreements, that contain dispute resolution clauses should be deterred from taking industrial action. The respondent does not dispute that proposition and only adds that a penalty that contemplates such matters ought to only be imposed if it is appropriate in having regard to the nature and circumstances of the contravention in question.
Specific deterrence is a relevant factor to remind the first respondent that “training, supervision and vigilance” is required to ensure that organisers “do not become an effective cause of contravening conduct by employees.”
The TWU submits that given its “good record”, cooperation in proceedings and corrective action that has already been taken there is no warrant for a significant component of specific deterrence in the penalty. However, I cannot agree.
First, I cannot agree that the TWU “cooperation” in these proceedings warrants significant attention. These proceedings were commenced in June, 2014. The facts, as pleaded, were straightforward. The essential allegation was that Mr Hastings had been involved in the industrial action in that he organised it. He was acting in his capacity of an organiser of the TWU when he did that. Nonetheless, the TWU filed a defence in August, 2014 that put its liability in issue. But that defence made no positive assertions by way of defence. It consisted, by and large, of non-admissions and denials. It was entirely unhelpful. In circumstances where the facts were confined to a single incident (as the TWU now points out in its submissions) it is difficult to understand why the allegations in the statement of claim could not have been answered directly. The TWU only had to make enquiries of its own organiser.
On 4 May, 2015 liability was still contested by the TWU. Directions were made to prepare the application for trial and three days were allocated for a trial. That is to say, the resources of this Court for the nominated three days were reserved for this matter. The trial directions were varied in June, 2015 to accommodate the claim of penalty privilege made by Mr Hastings. They were yet again varied on 21 July, 2015.
It was not until 6 August, 2015 that the TWU finally made appropriate admission and had its lawyers execute a statement of agreed facts. The Court was notified of the agreement on 24 August, 2015, less than 8 weeks prior to the dates allocated for the trial of the proceedings.
In those circumstances, the TWU’s acceptance of the facts set out in the Statement of Agreed Facts represents nothing more than an acceptance by it of the inevitable conclusion to these proceedings. There is no explanation about why the relevant agreement could not have been reached much earlier. Whilst I accept that the application did not need to be prepared for a trial and no trial took place, the significance of the matter proceeding on an agreed basis should not be overstated. In my view, given the facts that I have outlined above, that the application now proceeds upon an agreed basis has limited impact upon the assessment of penalty in this case.
Secondly, the need for specific deterrence in this case ought to be considered in the light of the nature and circumstances of the conduct leading to the contravention and the TWU’s previous contraventions of similar legislation. In FWO v TWU (above) Barnes FM (as her Honour then was) observed:
It is however appropriate to have regard to the need to encourage the TWU to take active steps to educate and, as far as reasonably possible, control the conduct of its officers to avoid contraventions of industrial legislation such as s.494(1) of the WR Act. The need for general deterrence suggests that a penalty that may deter others from committing similar contraventions is appropriate.
There is little to no information regarding the financial position of the TWU.
Conclusion
The admitted contravention represents a serious failure to observe the requirements of the Fair Work Act, to observe the provision of an industrial instrument that was on foot and bound the parties and a failure on the part of the TWU to instruct, through training or otherwise, its officers to act in accordance with the requirements of the Act. That is especially significant given the previous contraventions of similar industrial legislation by the TWU.
Mr Hastings was, as the applicant puts it, put into the field to assist and advise the applicant’s employees who were members of the TWU in relation to legitimate and appropriate responses to industrial issues. When faced with one of those issues, Mr Hastings was faced with a choice – to assist the employees to resolve the issue in accordance within the framework established by the Enterprise Agreement or to engage in unlawful action. For reasons that remain unexplained, he chose the latter rather than the former. The TWU is responsible for his actions.
Having regard to the matters to which I have referred above, and the other matters set out in the parties written submissions and emphasised by their oral submissions, I consider an appropriate penalty for the contravention that the TWU is taken to have committed is $25,500.
The parties have asked the Court to make declarations of contravention by consent. In the circumstances, and having regard to the need for general deterrence in respect of the conduct engaged in by the applicant, I am satisfied that the agreed declarations should be made.
The parties submit in the Statement of Agreed Facts that I order the pecuniary penalty be paid to the applicant. The applicant submits three arguments in support of this proposition:
a)the Applicant has exposed the contraventions of the FW Act by the First and Second Respondents;
b)the Applicant has served the public interest by bringing these proceedings and other proceedings in the FWC and ensuring compliance with the FW Act; and
c)the penalties are not compensation for the loss described in paragraph 22 of the Statement of Agreed Facts.
I am satisfied that the penalties should be paid to the applicant.
I make the orders set out at the commencement of these reasons.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 19 January, 2016.
Associate:
Date: 19 January 2016
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