Commissioner of the Australian Building and Construction Commission v Hall and Ors (No.3); (“The 3 Site Canberra Case – Penalties (No.3)”)
[2020] FCCA 2352
•17 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMISSIONER OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION v HALL & ORS (No.3) (“The 3 Site Canberra Case – Penalties (No.3)”) | [2020] FCCA 2352 |
| Catchwords: INDUSTRIAL LAW – Assessment of penalties – multiple contraventions of the Fair Work Act 2009 (Cth) (“the FW Act”) established regarding the conduct of CFMEU officials on three different building sites over a period of seven months – whether declarations should be made in respect of the Respondents – consideration of principles relevant to assessment penalties – quantum of penalties – where Applicant sought maximum penalties to be imposed – need for specific and general deterrence – declarations made – penalties ordered. |
| Legislation: Fair Work Act 2009 (Cth), ss.494, 497, 499, 500, 503, 545. Federal Circuit Court of Australia Act 1999 (Cth), ss.16(1) & (2) Federal Circuit Court Rules 2001 (Cth), rr.16.01, 16.05 |
| Cases cited: Ashley v Chief Constable of Sussex Police [2008] 1 AC 962 Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268; (2018) 363 ALR 246 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Children’s Hospital Case) (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) (2018) 258 FCR 158 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No.2) [2019] FCA 1555 Australian Ophthalmic Supplies Limited v McAlary-Smith (2008) 165 FCR 560 Cahill v Construction, Forestry, Mining and Energy Union (No.4) (2009) 189 IR 304 CGU Insurance Ltd v Blakeley (2016) 90 ALJR 272 The Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies, (5th Edition) (J.D. Heydon, M.J. Leeming, P.G. Turner) (Sydney: LexisNexis Butterworths, 2015) |
| Applicant: | COMMISSIONER OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION |
| First Respondent: | DEAN HALL |
| Second Respondent: | HALAFIHI KIVALU |
| Third Respondent: | JOHNNY LOMAX |
| Fourth Respondent: | JASON O’MARA |
| Fifth Respondent: | ZACHARY SMITH |
| Sixth Respondent: | KENNETH MILLER |
| Seventh Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| File Number: | CAG 78 of 2014 |
| Judgment of: | Judge WJ Neville |
| Hearing date: | 30 January 2020 |
| Date of Last Submission: | 25 March 2020 |
| Delivered at: | Canberra |
| Delivered on: | 17 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms P McDonald SC & Ms P Bindon |
| Solicitors for the Applicant: | Clayton Utz, Canberra |
| Counsel for the First and Third – Seventh Respondents: | Mr H Borenstein QC & Mr Y Bakri |
| Solicitors for the First and Third – Seventh Respondents: | Slater & Gordon, Canberra |
| Lawyers for the Second Respondent: | Self-Represented but no appearance |
DECLARATIONS
The First Respondent, Dean Hall (Hall) contravened s 497 of the Fair Work Act 2009 (Cth) (FW Act) on 21 August 2013 by exercising a State or Territory OHS right and failing to comply with repeated requests made by Village Building Company Pty Ltd (Village) to produce his federal entry permit for inspection while at premises located at 293 Flemington Road, Franklin in the ACT (Nexus Site) of which Village was the occupier.
Hall contravened s 500 of the FW Act on 21 October 2013 by exercising rights in accordance with Part 3-4 of the FW Act and intentionally hindering or obstructing workers, and otherwise acting in an improper manner, at the Nexus Site by making statements to those workers which resulted in the stopping of a concrete pour including:
(a)suggesting to a worker that he would lose his concrete pumping licence if the worker continued to pour concrete;
(b)suggesting that Hall had the power to 'take' a worker's licence ('ticket') off them; and
(c)suggesting that Hall had the power to prosecute workers and threatening to do so
Hall contravened s 503(1) of the FW Act on 30 October 2013 by taking action with the intention of giving the impression that he was authorised by Part 3-4 of the FW Act to stop a concrete pour occurring at the Nexus Site.
Hall contravened s 497 of the FW Act on 20 January 2014 by exercising a State or Territory OHS right and failing to comply with repeated requests made by Victory Homes Pty Ltd (Victory) to produce his federal entry permit for inspection while at premises located at Max Jacobs Drive, Wright in the ACT (Stromlo Site), of which Victory was the occupier.
Hall contravened s 499 of the FW Act on 20 January 2014 by exercising a State or Territory OHS right and failing to comply with a reasonable request made by Victory to comply with an occupational health and safety requirement that applied to the Stromlo Site, of which Victory was the occupier—namely, a request not to walk around the Stromlo Site unaccompanied.
Hall contravened s 500 of the FW Act on 20 January 2014 by exercising rights in accordance with Part 3-4 of the FW Act and acting in an improper manner at the Stromlo Site by:
(a)walking around the Stromlo Site unaccompanied after being requested not to do so by Victory as the occupier of the Stromlo Site; and
(b)making a two finger gesture to a representative of Victory.
Hall contravened s 503(1) of the FW Act on 20 January 2014 by taking action with the intention of giving the impression that he was authorised by his exercise of a State or Territory OHS right under Part 3-4 of the FW Act to enter the Stromlo Site, and that right entitled him to do whatever he wanted and overrode Victory’s site rule not to proceed on site unaccompanied.
Kivalu contravened s 500 of the FW Act on 21 October 2013 by exercising rights in accordance with Part 3-4 of the FW Act and intentionally hindering or obstructing workers, and otherwise acting in an improper manner, at the Nexus Site by making statements to a worker on the Nexis Site including:
(a)asking the worker to stop work when Kivalu had no authority to do so;
(b)making statements that the worker was working illegally; and
(c)threatening to fine the worker when Kivalu had no authority to do so.
Kivalu contravened s 500 of the FW Act on 28 January 2014 by exercising rights in accordance with Part 3-4 of the FW Act and acting in an improper manner at premises located at the corner of Wimmera Street and Mapleton Avenue, Harrison in the ACT (Harrison Site), by yelling, swearing and gesturing at workers.
Kivalu contravened s 503(1) of the FW Act on 28 January 2014 by taking action with the intention of giving the impression that he was authorised by Part 3-4 of the FW Act to enter the Harrison Site, of which Village was the occupier, unaccompanied and in disregard of Village's site rules.
Kivalu contravened s 499 of the FW Act on 11 March 2014 by exercising a State or Territory OHS right and failing to comply with a reasonable request made by Village to comply with an occupational health and safety requirement that applied to the Harrison Site, of which Village was the occupier—namely, a request to not walk around the Harrison Site unaccompanied.
The Third Respondent, Johnny Lomax (Lomax), contravened s 500 of the FW Act on 21 October 2013, by being involved in Hall's contravention of s 500 of the FW Act as set out at declaration 2, on the application of s 550(1) of the FW Act.
The Fourth Respondent, Jason O'Mara (O'Mara), contravened s 497 of the FW Act on 21 August 2013 by exercising a State or Territory OHS right and failing to comply with repeated requests made by Village to produce his federal entry permit for inspection while at the Nexus Site of which Village was the occupier.
O'Mara contravened s 499 of the FW Act on 11 March 2014 by exercising a State or Territory OHS right and failing to comply with a reasonable request made by Village to comply with an occupational health and safety requirement that applied to the Harrison Site of which Village was the occupier, namely, to not walk around the Harrison Site unaccompanied.
O'Mara contravened s 503(1) of the FW Act on 11 March 2014 by taking action, reckless as to whether the impression was given, that he was authorised by Part 3-4 of the FW Act to enter the Harrison Site, of which Village was the occupier, unaccompanied, and that Village’s “2 person visitor rule” was not reasonable and did not comply with legislation regulating permit holders.
The Fifth Respondent, Zachary Smith (Smith), contravened s 499 of the FW Act on 30 October 2013 by exercising a State or Territory OHS right and failing to comply with a reasonable request made by Village to comply with an occupational health and safety requirement that applied to the Nexus Site, of which Village was the occupier—namely, a request not to walk around the Nexus Site unaccompanied.
Smith contravened s 500 of the FW Act on 30 October 2013 by exercising rights in accordance with Part 3-4 of the FW Act and acting in an improper manner at the Nexus Site by yelling and swearing at workers on the Nexus Site.
The Sixth Respondent, Kenneth Miller (Miller), contravened s 494(1) of the FW Act on 11 March 2014 by exercising a State or Territory OHS right while not being a permit holder within the meaning of the FW Act.
In respect of Hall's contravention of s 503(1) of the FW Act on 30 October 2013 referred to in declaration 3 above, the Seventh Respondent, the Construction Forestry Mining and Energy Union (CFMMEU):
(a)engaged in Hall's conduct by operation of s 793(1) of the FW Act;
(b)had the state of mind of Hall at the time of that conduct by operation of s 793(2) of the FW Act; and
(c)thereby itself contravened s 503(1) of the FW Act on 30 October 2013.
In respect of Hall's contravention of s 503(1) of the FW Act on 20 January 2014 referred to in declaration 7 above, the CFMEU:
(a)engaged in Hall's conduct by operation of s 793(1) of the FW Act;
(b)had the state of mind of Hall at the time of that conduct by operation of s 793(2) of the FW Act; and
(c)thereby itself contravened s 503(1) of the FW Act on 20 January 2014.
In respect of Kivalu's contravention of s 503(1) of the FW Act on 28 January 2014 referred to in declaration 10 above, the CFMEU:
(a)engaged in Kivalu's conduct by operation of s 793(1) of the FW Act;
(b)had the state of mind of Kivalu at the time of that conduct by operation of s 793(2) of the FW Act; and
(c)thereby contravened s 503(1) of the FW Act on 28 January 2014.
In respect of Kivalu's contravention of s 499 of the FW Act on 11 March 2014 referred to in declaration 11 above, the CFMEU:
(a)engaged in Kivalu's conduct by operation of s 793(1) of the FW Act;
(b)had the state of mind of Kivalu at the time of that conduct by operation of s 793(2) of the FW Act; and
(c)was accordingly involved in Kivalu’s contravention of s 499 of the FW Act; and
(d)thereby contravened s 499 of the FW Act on 11 March 2014, on the application of s 550(1) of the FW Act.
In respect of O'Mara's contravention of s 503(1) of the FW Act on 11 March 2014 referred to in declaration 15 above, the CFMEU:
(a)engaged in O'Mara's conduct by operation of s 793(1) of the FW Act;
(b)had the state of mind of O'Mara at the time of that conduct by operation of s 793(2) of the FW Act; and
(c)thereby itself contravened s 503(1) of the FW Act on 11 March 2014.
In respect of Miller's contravention of s 494(1) of the FW Act on 11 March 2014 referred to in declaration 18 above, the CFMEU:
(a)engaged in Miller's conduct by operation of s 793(1) of the FW Act;
(b)had the state of mind of Miller at the time of that conduct by operation of s 793(2) of the FW Act; and
(c)was accordingly involved in Miller’s contravention of s 494(1) of the FW Act; and
(d)thereby contravened s 494 of the FW Act on 11 March 2014, by the application of s 550(1) of the FW Act.
ORDERS
Pursuant to s 546(1) of the FW Act, The First Respondent (Dean Hall) must pay the following pecuniary penalties:
(a)A penalty in the sum of $4,500 in respect of his contravention of section 497 of the FW Act that occurred on 21 August 2013 at Nexus Site;
(b)A penalty in the sum of $6,500 in respect of his contravention of section 500 of the FW Act that occurred on 21 October 2013 at Nexus Site;
(c)A penalty in the sum of $6,500 in respect of his contravention of section 503(1) of the FW Act that occurred on 30 October 2013 at the Nexus Site.
(d)A penalty in the sum of $4,500 in respect of his contravention of section 497 of the FW Act that occurred on 20 January 2014 at the Stromlo Site;
(e)A penalty in the sum of $5,000 in respect of his contraventions of sections 499, 500 and 503(1) of the FW Act that occurred on 20 January 2014 at the Stromlo Site.
Pursuant to s 546(1) of the FW Act, the Second Respondent (Halafihi Kivalu) must pay the following pecuniary penalties:
(a)A penalty in the sum of $2,500 in respect of his contravention of section 500 of the FW Act that occurred on 21 October 2013 at the Nexus Site;
(b)A penalty in the sum of $2,500 in respect of his contravention of section 500 of the FW Act that occurred on 28 January 2014 at the Harrison Site;
(c)A penalty in the sum of $4,000 in respect of his contravention of section 503(1) of the FW Act that occurred on 28 January 2014 at the Harrison Site;
(d)A penalty in the sum of $4,000 in respect of his contravention of section 499 of the FW Act that occurred on 11 March 2014 at the Harrison Site.
Pursuant to s 546(1) of the FW Act, the Third Respondent (Johnny Lomax) must pay a pecuniary penalty in the sum of $2,000 in respect of his contravention of section 500 of the FW Act that occurred on 21 October 2013 at the Nexus Site.
Pursuant to s 546(1) of the FW Act, the Fourth Respondent (Jason O’Mara) must pay the following pecuniary penalties:
(a)A penalty in the sum of $4,500 in respect of his contravention of section 497 of the FW Act that occurred on 21 August 2013 at the Nexus Site;
(b)A penalty in the sum of $7,500 in respect of his contraventions of sections 499 and 503(1) of the FW Act that occurred on 11 March 2014 at the Harrison Site;
Pursuant to s 546(1) of the FW Act, the Fifth Respondent (Zachary Smith) must pay a pecuniary penalty of $6,000 in respect of his contravention of sections 499 and 500 of the FW Act that occurred on 30 October 2013 at the Nexus Site.
Pursuant to s 546(1) of the FW Act, the Sixth Respondent (Kenneth Miller) must pay a pecuniary penalty of $3,500 in respect of his contravention of section 494(1) that occurred on 11 March 2014 at the Harrison Site.
Pursuant to s 546(1) of the FW Act, the Seventh Respondent (CFMMEU) must pay the following pecuniary penalties:
(a)A penalty in the sum of $25,000 in respect of its contravention of section 503(1) of the FW Act that occurred on 30 October 2013 at the Nexus Site;
(b)A penalty in the sum of $25,000 in respect of its contravention of section 503(1) of the FW Act that occurred on 20 January 2014 at the Stromlo Site;
(c)A penalty in the sum of $20,000 in respect of its contravention of section 503(1) of the FW Act that occurred on 28 January 2014 at the Harrison Site;
(d)A penalty in the sum of $20,000 in respect of its contravention of section 499 of the FW Act that occurred on 11 March 2014 at the Harrison Site;
(e)A penalty in the sum of $28,000 in respect of its contravention of section 503(1) of the FW Act that occurred on 11 March 2014 at the Harrison Site;
(f)A penalty in the sum of $20,000 in respect of its contravention of section 494(1) of the FW Act that occurred on 11 March 2014 at the Harrison Site.
Pursuant to section 546(3)(a) of the FW Act, the personal and corporate penalties are to be paid to the Commonwealth of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 78 of 2014
| COMMISSIONER OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION |
Applicant
And
| DEAN HALL |
First Respondent
| HALAFIHI KIVALU |
Second Respondent
| JOHNNY LOMAX |
Third Respondent
| JASON O’MARA |
Fourth Respondent
| ZACHARY SMITH |
Fifth Respondent
| KENNETH MILLER |
Sixth Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Seventh Respondent
REASONS FOR JUDGMENT
Introduction
On 7th December 2018, and 20th September 2019, this Court delivered judgments in relation to the liability of the Respondents for certain contraventions under the Fair Work Act 2009 (Cth) (“the FW Act”). Those contraventions arose from conduct on three different building sites in Canberra. Respectively, those judgments were Commissioner of the Australian Building and Construction Commission v Hall & Ors (“The 3 Site Canberra Case”) (“the liability judgment”), and Commissioner of the Australian Building and Construction Commission v Hall & Ors (No.2) (“The 3 Site Canberra Case (No.2)”) (“the supplementary judgment”).[1]
[1] Commissioner of the Australian Building and Construction Commission v Hall & Ors (“The 3 Site Canberra Case”) [2018] FCCA 3532; Commissioner of the Australian Building and Construction Commission v Hall & Ors (No.2) (“The 3 Site Canberra Case (No.2)”) [2019] FCCA 2055. From time to time, for ease of reference, these judgments are simply referred to as “the liability judgments” or similar abbreviation.
On 30th January 2020, this Court heard submissions regarding penalties. Additionally, detailed written submissions were provided by the parties, which are set out later in these reasons.[2] In the liability judgment, the Court directed that declarations were to be made in terms as sought by the Applicant in the light of the findings therein set out. Thus far, formally no declarations have been made.
[2] Only the Second Respondent, Mr Kivalu, who was formerly an employee and officer of the Seventh Respondent Union, was not legally represented at both the liability and penalties hearings. Indeed, Mr Kivalu did not appear at either hearing. He made certain admissions in relation to the former; there is an agreed statement of facts (filed 19th December 2019).
The reasons that follow relate to the determination of declarations and penalties arising from the findings made in the liability judgments.
Some factual changes to the status of some of the Respondents may be conveniently noted here. They are taken from an Affidavit of Ms Read, a senior legal officer of the Australian Capital Territory Branch of the Construction and General Division of the Construction, Forestry Maritime, Mining and Energy Union (“ACT Branch of the Union”), the Seventh Respondent in the current proceedings. In that Affidavit, filed 24th January 2020, Ms Read deposed that:
(a)The First Respondent, Mr Hall, formerly the Secretary of the Union in the ACT, resigned his position in the Branch in March 2018 and no longer has any role in it;
(b)The Second Respondent, Mr Kivalu, resigned his position in the Branch in November 2014 and no longer has any role in it;
(c)The Third Respondent, Mr Lomax, resigned his position in the Branch in mid-2018 and no longer has any role in it; and
(d)The Sixth Respondent, Mr Miller, resigned his position in the Branch in February 2019 and no longer has any role in it.
The remainder of Ms Read’s Affidavit dealt with matters regarding the status of the ACT Branch of the Union, which are relevant to, and considered later in, these reasons in relation to the determination of penalties on the Seventh Respondent Union.
It is apposite to record here that, in addition to the Agreed Statement of Facts between the Applicant and the Second Respondent, Mr Kivalu already noted, there was also a Statement of Agreed Facts between the Applicant, the Sixth Respondent (Mr Miller) and the Seventh Respondent (the Union), filed 22nd September 2017.
Further, for the purposes of the penalty hearing, at the direction of the Court, the parties agreed upon a “roadmap” regarding the contraventions established, pursuant to the liability judgment and the supplementary judgment (“the liability judgments”). That “roadmap” is set out below. It provides an overview of the contraventions established. The parties also helpfully provided a comparative table of proposed penalties
These reasons proceed as follows:
(a)Roadmap of contraventions;
(b)Outline of principle regarding the making of declarations;
(c)Determination of declarations;
(d)Outline of principle regarding penalties; and
(e)The contraventions pleaded against each Respondent will be considered separately, (i) with a brief summary of facts and findings from the liability judgment, (ii) the submissions on behalf of both parties regarding each contravention, and (iii) the Court’s determination.
Roadmap of contraventions
The following roadmap of contraventions was filed in Court on 30th January 2020. It provided an overview of the contraventions found to have been established, as set out in the liability judgments. As will be seen, the roadmap helpfully provides reference to the relevant pages of the judgments, thus:
Roadmap of Contraventions
1. This document is filed by the Applicant, and the First, Third, Fourth, Fifth, Sixth and Seventh Respondents pursuant to the Court’s orders dated 14 November 2019.
2. This document summarises the contraventions found by the Court in Commissioner of the Australian, Building and Construction Commission v Hall & Ors [2018] FCCA 3532 as varied by the supplementary judgement in Commissioner of the Australian, Building and Construction Commission v Hall & Ors (No. 2) [2019] FCCA 2055.
3. The First, Third, Fourth, Fifth, Sixth Seventh Respondents reserve their rights to make submissions to the Court in respect to whether the Court should make declarations in respect of the below findings and the form of any declarations.
Agreed Contraventions:
First-Respondent (Hall)
Para ref in [2018] FCCA 3532
1.
The First Respondent, Dean Hall (Hall) contravened s 497 of the Fair Work Act 2009 (Cth) (FW Act) on 21 August 2013 by exercising a State or Territory OHS right and failing to comply with repeated requests made by Village Building Company Pty Ltd (Village) to produce his federal entry permit for inspection while at premises located at 293 Flemington Road, Franklin in the ACT (Nexus Site) of which Village was the occupier.
[82]
2.
Hall contravened s 500 of the FW Act on 21 October 2013 by exercising rights in accordance with Part 3-4 of the FW Act and intentionally hindering or obstructing workers, and otherwise acting in an improper manner, at the Nexus Site.
[210(g)]
3.
Hall contravened s 503(1) of the FW Act on 30 October 2013 by taking action with the intention of giving the impression that the action was authorised by Part 3-4 of the FW Act.
[322]
4.
Hall contravened s 497 of the FW Act on 20 January 2014 by exercising a State or Territory OHS right and failing to comply with repeated requests made by Victory Homes Pty Ltd (Victory) to produce his federal entry permit for inspection while at premises located at Max Jacobs Drive, Wright in the ACT (Stromlo Site), of which Victory was the occupier.
[495]
5.
Hall contravened s 499 of the FW Act on 20 January 2014 by exercising a State or Territory OHS right and failing to comply with a reasonable request made by Victory to comply with an occupational health and safety requirement that applied to the Stromlo Site, of which Victory was the occupier.
[499]
6.
Hall contravened s 500 of the FW Act on 20 January 2014 by exercising rights in accordance with Part 3-4 of the FW Act and acting in an improper manner at the Stromlo Site.
[503]
7.
Hall contravened s 503(1) of the FW Act on 20 January 2014 by taking action at the Stromlo Site with the intention of giving the impression that he was authorised by his exercise of a State or Territory OHS right under Part 3-4 of the FW Act to take that action.
[507]
Second-Respondent (Kivalu)
8.
Kivalu contravened s 500 of the FW Act on 21 October 2013 by exercising rights in accordance with Part 3-4 of the FW Act and intentionally hindering or obstructing workers, and otherwise acting in an improper manner, at the Nexus Site.
[211]
9.
Kivalu contravened s 500 of the FW Act on 28 January 2014 by exercising rights in accordance with Part 3-4 of the FW Act and acting in an improper manner at premises located at the corner of Wimmera Street and Mapleton Avenue, Harrison in the ACT (Harrison Site).
[541]
10.
Kivalu contravened s 503(1) of the FW Act on 28 January 2014 by taking action with the intention of giving the impression that the action was authorised by Part 3-4 of the FW Act .
[541]
11.
Kivalu contravened s 499 of the FW Act on 11 March 2014 by exercising a State or Territory OHS right and failing to comply with a reasonable request made by Village to comply with an occupational health and safety requirement that applied to the Harrison Site, of which Village was the occupier.
[638]
Third-Respondent (Lomax)
12.
The Third Respondent, Johnny Lomax (Lomax), contravened s 500 of the FW Act on 21 October 2013, by being involved in Hall's contravention of s 500 of the FW Act as set out at Contravention 2, on the application of s 550(1) of the FW Act.
[215]
Fourth-Respondent (O’Mara)
13.
The Fourth Respondent, Jason O'Mara (O'Mara), contravened s 497 of the FW Act on 21 August 2013 by exercising a State or Territory OHS right and failing to comply with repeated requests made by Village to produce his federal entry permit for inspection while at the Nexus Site of which Village was the occupier.
[82]
14.
O'Mara contravened s 499 of the FW Act on 11 March 2014 by exercising a State or Territory OHS right and failing to comply with a reasonable request made by Village to comply with an occupational health and safety requirement that applied to the Harrison Site of which Village was the occupier.
[649]
15.
O'Mara contravened s 503(1) of the FW Act on 11 March 2014 by taking action at the Harrison Site, reckless as to whether the impression was given, that he was authorised by Part 3-4 of the FW Act to take that action.
[650] and [655]
Fifth-Respondent (Smith)
16.
The Fifth Respondent, Zachary Smith (Smith), contravened s 499 of the FW Act on 30 October 2013 by exercising a State or Territory OHS right and failing to comply with a reasonable request made by Village to comply with an occupational health and safety requirement that applied to the Nexus Site, of which Village was the occupier.
[320]
17.
Smith contravened s 500 of the FW Act on 30 October 2013 by exercising rights in accordance with Part 3-4 of the FW Act and acting in an improper manner at the Nexus Site.
[321]
Sixth-Respondent (Miller)
18.
The Sixth Respondent, Kenneth Miller (Miller), contravened s 494(1) of the FW Act on 11 March 2014 by exercising a State or Territory OHS right while not being a permit holder within the meaning of the FW Act.
[638]
Seventh-Respondent (CFMEU)
19.
In respect of Kivalu's contravention of s 503(1) of the FW Act on 28 January 2014 referred to in Contravention 10 above, the CFMEU contravened s 503(1) of the FW Act on 28 January 2014.
[638]
20.
In respect of Kivalu's contravention of s 499 of the FW Act on 11 March 2014 referred to in Contravention 11 above, the CFMEU contravened s 499 of the FW Act on 11 March 2014, on the application of s 550(1) of the FW Act.
[638]
21.
In respect of Miller's contravention of s 494(1) of the FW Act on 11 March 2014 referred to in Contravention 18 above, the CFMEU contravened s 494 of the FW Act on 11 March 2014, by the application of s 550(1) of the FW Act.
[638]
Disputed Contraventions:
Seventh Respondent (CFMEU)
Para ref in [2019] FCCA 2055
1.
In respect of Hall's contravention of s 503(1) of the FW Act on 30 October 2013 referred to in Contravention 3 above, the Seventh Respondent, the Construction Forestry Mining and Energy Union (CFMEU):
a) engaged in Hall's conduct by operation of s 793(1) of the FW Act;
b) had the state of mind of Hall at the time of that conduct by operation of s 793(2) of the FW Act; and
c) thereby itself contravened s 503(1) of the FW Act on 30 October 2013
[27]
2.
In respect of Hall's contravention of s 503(1) of the FW Act on 20 January 2014 referred to in Contravention 7 above, the CFMEU:
a) engaged in Hall's conduct by operation of s 793(1) of the FW Act;
b) had the state of mind of Hall at the time of that conduct by operation of s 793(2) of the FW Act; and
c) thereby itself contravened s 503(1) of the FW Act on 20 January 2014
[27]
3.
In respect of O'Mara's contravention of s 503(1) of the FW Act on 11 March 2014 referred to in Contravention 15 of the attached table, the CFMEU:
a) engaged in O'Mara's conduct by operation of s 793(1) of the FW Act;
b) had the state of mind of O'Mara at the time of that conduct by operation of s 793(2) of the FW Act; and
c) thereby itself contravened s 503(1) of the FW Act on 11 March 2014.
[27]
Declarations – relevant principles
At the commencement of its detailed consideration of the remedy of “declarations”, the authors of Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies state, at [19-005]: “The power of the Court to give declaratory judgments is among the most important of all curial remedies.”[3]
[3] Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies, (5th Edition) (J.D. Heydon, M.J. Leeming, P.G. Turner) (Sydney: LexisNexis Butterworths, 2015).
In Ashley v Chief Constable of Sussex Police, the House of Lords referred to judicial relief as a “vindicatory remedy”, and that relief generally was designed to fulfil a “vindicatory purpose.”[4] At [22], Lord Scott of Foscote said (emphasis added):[5]
… in Chester v Afshar [2005] 1 AC 134, para 87 Lord Hope of Craighead remarked that “The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached” and that unless an infringed right were met with an adequate remedy, the duty would become “a hollow one, stripped of all practical force and devoid of all content”. So too would the right.
[4] Ashley v Chief Constable of Sussex Police [2008] 1 AC 961 at 975-976.
[5] See similar comments by Lord Rodger of Earlsferry at [63], Ashley v Chief Constable of Sussex Police [2008] 1 AC 961 at 986.
Because this Court is an intermediate and not a superior Court, I need only note for completeness, but not discuss, the High Court’s recent comments on the ability of superior courts to grant declaratory relief, based in the inherent power of such courts.[6]
[6] See Momcilovic v The Queen (2011) 245 CLR 1 at [81] (French CJ), and at [179] – [181] (Gummow J); CGU Insurance Ltd v Blakeley (2016) 90 ALJR 272 at [13].
The learned authors of Judicial Review of Administrative Action and Government Liability note that, with the exception of the High Court, all Australian jurisdictions (including this Court) still retain copies of England’s 1883 rule (Order 25, rule 5) in relation to the power to make a “declaratory judgment.”[7] Order 25 Rule 5 provided:
No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed.
[7] Judicial Review of Administrative Action and Government Liability (M. Aronson, M. Groves, G. Weeks) (Sixth Edition) (Sydney: Thomson Reuters/Lawbook Co., 2017) at [15.40]. The history in the United Kingdom and Europe of the statutory development in support of declaratory relief is set out in the magisterial text of H. Woolf and J. Woolf, The Declaratory Judgment, (Third Edition; London: Sweet & Maxwell, 2002) especially Chapter 2. For completeness, a detailed history of declaratory relief in the United States is set out in E. Borchard, Declaratory Judgments, (Second Edition; Cleveland: Banks-Baldwin Law Publishing Co, 1941).
Section 16(1) and (2) of the Federal Circuit Court of Australia Act 1999, provides:[8]
[8] See also Rule 16.01 of the Federal Circuit Court Rules 2001, which provides that the Court may “at any stage in a proceeding on the application of a party, give any judgment or make any order even if the claim was not made in an originating process.”
(1) The Federal Circuit Court of Australia may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2) A proceeding is not open to objection on the ground that a declaratory order only is sought.
Further, it should be recalled that s.545 of the FW Act provides that the Court “may make any order the Court considers appropriate if the Court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.”[9]
[9] For consideration of the scope and operation of s.545 of the FW Act, see the comments by Kiefel CJ in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 351 ALR 190 at [23], and by Keane, Nettle and Gordon JJ at [103] – [110].
Declarations – consideration and disposition
In the current proceeding, the Applicant sought declarations against each and every Respondent. The Respondents have been on notice of the Applicant seeking declarations as therein set out since at least the filing of the Further Amended Statement of Claim on 4th August 2016.[10]
[10] See pars.79 ff of the Further Amended Statement of Claim (“FASOC”).
For a time between the delivery of the two judgments regarding liability and the hearing in relation to penalties, the “active Respondents” (i.e all Respondents except Mr Kivalu) resisted the making of any declarations unless and until there had been submissions regarding penalty.[11] However, in their primary written submissions (filed 24th January 2020), the Respondents stated, par.14: “The Active Respondents make no submissions in relation to the making of the declarations per se.”[12]
[11] The reference to “Active Respondents” refers to all Respondents except the Second Respondent, Mr Kivalu; all references hereafter, unless otherwise stated, should be taken to refer to the Active Respondents indicated.
[12] See also the discussion and submissions at the penalty hearing, especially regarding the possible import of four of the Union officials/employees now no longer so employed, at Transcript (30th January 2020) p.39. Hereafter, all references to this Transcript of the penalty hearing will simply be “T” followed by the relevant page number.
In the pleadings, the Applicant specifically sought both declarations and pecuniary penalties against the Respondents. Throughout the principal liability judgment, the Court stated that “the declarations and Orders sought by the Applicant should be made in relation to the contraventions pleaded here regarding…” (or similar wording) the relevant Respondent, thus at [82], [210(g) – (j)], [211], [214] – [215], [321], [494], [500], [507], [541], [637] – [638], [648] – [649], [653] – [655].
In my view, in the light of the Court’s earlier determinations in the liability judgment, strictly speaking the foundations for the declarations sought by the Applicant have already been established, and the relief granted. At [684] of the liability judgment, the Court directed the parties to provide an “agreed Minute of the Declarations and Orders” that reflected the Court’s findings. What is actually sought now is simply the formalisation of the declarations determined and ordered by the Court to be properly made. As such they are “vindicatory” in the sense described by the House of Lords in Ashley v Chief Constable for Sussex set out earlier in these reasons.
Further, echoing the comments of the House of Lords in Ashley v Chief Constable for Sussex, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Children’s Hospital Case), Dowsett, Greenwood and Wigney JJ said, at [93]:[13]
Declarations relating to contraventions of legislative provisions are likely to be appropriate where they serve to record the Court’s disapproval of the contravening conduct, vindicate the regulator’s claim that the respondent contravened the provisions, assist the regulator to carry out its duties, and deter other persons from contravening the provisions...
[13] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Children’s Hospital Case) (2017) 254 FCR 68. In this case, at [95], the Full Court said that “sufficiently clear” particulars or details of the contraventions should be provided in the declarations to be made.
In my view, and in addition to what has already been stated regarding the role of declarations, the reverse side of “deterrence” is the educative effect or intended import of declaratory relief, which was the last point alluded to by the Full Court in The Children’s Hospital Case, noted above. Put another way, if a person or an organisation is properly conducting “education”, the comments by a Court about particular conduct which results in certain declarations being made, one would assume, is relevantly taken into account and forms part of the ongoing “re-education” of employees and officials. Hence the consideration of the role of deterrence (discussed later in these reasons) as being part of the educative experience and object of proceedings such as the present. In this regard, I note the following comments by Keane J in The Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate, at [104] (emphasis added):[14]
… a defendant's agreement to meet a plaintiff's claim for a penalty is relevant as an indication of the defendant's acceptance of responsibility, in a way which is meaningful to the fixing of a proper penalty, for its departure from legal norms which gave rise to the claim. It has significance, of such weight as the court considers appropriate, as an assurance that the defendant may be relied upon not to transgress in that way again. It is relevant to the court's assessment of what is required by way of specific deterrence to prevent departures by the defendant from those standards in the future.
[14] The Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482.
Although strictly in the context of the imposition of penalty, it is nonetheless implicit in Keane J’s comments above that matters of responsibility and recognition of the consequences of conduct are properly or relevantly comprehended by a Defendant or Respondent. Comprehension necessarily implies some cognitive recognition of poor or improper conduct. Typically, education of some kind, such as in written reasons of a Court, assist (or are designed to do so) in such recognition and comprehension.
For the reasons given, again noting that the active Respondents now make no submissions regarding the making of declarations, and subject to confirmation of the liability of the Union regarding the disputed contraventions discussed below, declarations as sought by the Applicant should be made in the form set out in Attachment B to its submissions, filed 19th December 2019.
Disputed Contraventions – submissions
At the conclusion of the document styled “Roadmap of Contraventions” set out earlier in these reasons, there are three “disputed contraventions.” They have this title because the parties do not agree on the import and effect of both the liability judgments regarding the liability of the Seventh Respondent Union arising from two contraventions involving the First Respondent, Mr Hall, of s.503(1) of the FW Act, on 30th October 2013, and another on 20th January 2014, and one involving the Fourth Respondent, Mr O’Mara, of s.503(1) of the FW Act on 11th March 2014. As set out in the Roadmap, the disputed contraventions were summarised as follows:[15]
[15] Each of these contraventions were referenced to [27] of the supplementary judgment. For completeness, I should note that since this litigation commenced, the Seventh Respondent Union has more recently changed its name to the Construction, Forestry, Maritime, Mining and Energy Union (“CFMMEU”). However, having regard to the dates when the actions occurred that have given rise to the contraventions pleaded here, the references will remain to the former name and abbreviation of the Seventh Respondent Union.
1.
In respect of Hall's contravention of s 503(1) of the FW Act on 30 October 2013 referred to in Contravention 3 above, the Seventh Respondent, the Construction Forestry Mining and Energy Union (CFMEU):
(a) engaged in Hall's conduct by operation of s 793(1) of the FW Act;
(b) had the state of mind of Hall at the time of that conduct by operation of s 793(2) of the FW Act; and
(c) thereby itself contravened s 503(1) of the FW Act on 30 October 2013.
2.
In respect of Hall's contravention of s 503(1) of the FW Act on 20 January 2014 referred to in Contravention 7 above, the CFMEU:
(a) engaged in Hall's conduct by operation of s 793(1) of the FW Act;
(b) had the state of mind of Hall at the time of that conduct by operation of s 793(2) of the FW Act; and
(c) thereby itself contravened s 503(1) of the FW Act on 20 January 2014.
3.
In respect of O'Mara's contravention of s 503(1) of the FW Act on 11 March 2014 referred to in Contravention 15 of the attached table, the CFMEU:
(a) engaged in O'Mara's conduct by operation of s 793(1) of the FW Act;
(b) had the state of mind of O'Mara at the time of that conduct by operation of s 793(2) of the FW Act; and
(c) thereby itself contravened s 503(1) of the FW Act on 11 March 2014.
The Applicant’s submissions in relation to these contraventions, filed 19th December 2019, pars.8 – 11, were as follows (emphasis in original submissions):
(8) As foreshadowed in correspondence to His Honour’s chambers on 16 December 2019 the parties disagree as to the correct interpretation of the Liability Judgment when read with the Supplementary Judgment insofar as it determines the CFMMEU’s liability for:
a) the First Respondent’s contravention of section 503(1) on 30 October 2013;
b) the First Respondent’s contravention of section 503(1) on 20 January. 2014;
c) the Fourth Respondent’s contravention of section 503(1) on 11 March 2014.
(9) These contraventions are listed as ‘disputed contraventions’ in the ‘roadmap of contraventions’ provided to the Court and extracted at Attachment A to these submissions.
(10) In the Applicant’s submission, the Liability Judgment read together with the Supplementary Judgment does establish liability of the CFMMEU for all section 503(1) contraventions by the individual Respondents, including the three listed above. The reasons are as follows:
a) In the Liability Judgment, the Court found the CFMMEU to be liable pursuant to section 793 “for those contraventions established against each of the individual Respondents”.[16]
[16] Liability Judgment at [682] (emphasis added).
b) In the Supplementary Judgment, the Court reached the following conclusion as to the CFMMEU’s liability at paragraphs [26] – [27] (emphasis added):
26. Fifthly, for present purposes, in the light of:
i.The comments of McHugh J in Coleman v Power, set out at the commencement of these reasons; and
ii.The concession(s) made by the Applicants (set out above) regarding certain recent decisions of the Federal Court of Australia and their binding import on this Court, and
iii.the Applicant consequently no longer pressing contraventions as pleaded against the Seventh Respondent;
The Court must accept (a) the concessions of the Applicant and (b) the submissions on behalf of the Seventh Respondent Union. These concessions must lead to the result that, other than as admitted regarding the contraventions pleaded against Mr Kivalu and Mr Miller, the contraventions otherwise pleaded against the Seventh Respondent cannot succeed and must be dismissed.
27. Put another way, summarily: the resolution of the claims made by the Applicant against the Seventh Respondent Union ultimately turn on (a) the way the claims were pleaded by the Applicant, and (b) the concessions made by the Applicant in relation to the import of certain decisions of the Federal Court of Australia regarding the operation of s.793 of the FW Act.
c) Accordingly, the Court’s conclusion about the liability of the CFMMEU for the contraventions by the individual Respondents is expressly linked to the Applicant’s concessions about the operation of section 793.
d) The concessions that the Applicant made with respect to the operation of section 793 never included a concession that CFMMEU liability for a contravention of section 503(1) could no longer rely solely on section 793. On the contrary, the Applicant expressly continued to press for CFMMEU liability for all section 503(1) contraventions based solely on the operation of section 793. This was because, in the Applicant’s submission, the relevant Federal Court decisions only determined that section 793 could not, on its own, be relied on to establish union liability for contravention of a provision directed to someone with the status of a ‘permit holder’. Since section 503 is not directed a ‘permit holder’ but rather a ‘person’ (which includes a body corporate such as a union), section 793 could continue to be relied on its own to establish union liability for a contravention of section 503(1) by a union official.
e) The position above was conveyed clearly in correspondence to the Court and which the Court reproduced in the Supplementary Judgment. In particular, under the heading ‘The Applicant’s Concession(s)’ at paragraph [20], the Court sets out the Applicant’s correspondence of 15 March 2018 which included the following critical passages (emphasis added):
11) Not pressing the remaining alleged contraventions of ss 497, 499 and 500 by the Seventh Respondent
The Applicant wishes to inform the Court immediately that it no longer presses the contraventions alleged against the Seventh Respondent in the FASOC at:
a) paragraphs 23 and 24 (i.e. the s 497 FW Act contraventions);
b) paragraphs 45 and 46 (i.e. the s 499 FW Act contraventions) (except in respect of the contravention of s 499 by the Second Respondent on 11 March 2014 and which it is intended will be addressed in the proposed orders to amend the FASOC); and
c) paragraphs 63 and 64 (i.e. the s 500 FW Act contraventions).
12) However, the Applicant continues to press the contraventions alleged against the Seventh Respondent in paragraphs 77 and 78 of the FASOC (i.e. the s 503 FW Act contraventions). In the Applicant’s view, as currently pleaded, these alleged contraventions are not impacted by the recent Federal Court decisions concerning s 793 because s 503 is directed to a “person” and can therefore be directly contravened by a body corporate such as the Seventh Respondent.
13) As a consequence of paragraphs 11 and 12 above, the Applicant no longer presses the declarations sought in paragraph 79(w) of the FASOC except to the extent that they relate to:
a) the Seventh Respondent’s admitted contraventions, pursuant to s 550 of the FW Act, by reason of the respective contraventions set out in Orders (a) and (g); and
b) the Seventh Respondent's alleged contraventions of s 503 of the FW Act by reason of the respective contraventions set out in Orders (s) – (v).
14) The Applicant has provided a copy of this letter to the Respondents prior to sending it to the Court and has also sent them a copy in final form.
f) Further, the Court then at paragraph [21] set out further correspondence from the Applicant to the Court on 22 January 2019 sent with the consent of the Respondents which included the following critical passages (emphasis added):
3) A copy of that correspondence [of 20 March 2018] is enclosed for ease of reference. In summary, as His Honour may recall, the applicant:
a) Confirmed the concessions, made in the applicant's further submissions in reply, that the applicant was unlikely to succeed on those parts of its claim against the Seventh Respondent that alleged liability of the CFMEU in respect of:
i) the s 497 Fair Work Act 20019 (FW Act) contraventions;
ii) the s 499 FW Act contraventions; and
ii) the s 500 FW Act contraventions.
b) Confirmed that the applicant was not pressing those parts of its claim alleging contraventions against the Seventh Respondent at:
i) paragraphs 23 and 24 of the FASOC (ie the s 497 FW Act contraventions)
ii) paragraphs 45 and 46 of the FASOC (ie the s 499 FW Act contraventions); and
iii) paragraphs 63 and 64 of the FASOC (ie the s 500 FW Act contraventions).
c) Confirmed the applicant did not, as a result of the matters summarised at a)–0 [sic: e)] above, press for declarations sought in paragraph 79(w) of the FASOC except to the extent that they related to the Seventh Respondent’s admitted contraventions (by application of s 550 of the FW Act) and 503 of the FW Act.
d) Confirmed that the applicant otherwise continued to press the contraventions alleged against the Seventh Respondent in paragraphs 77 and 78 of the FASOC (ie the s 503 FW Act contraventions).
e) By consent, sought leave to amend the FASOC to plead liability of the Seventh Respondent, by application of s 550, in respect of the two contraventions admitted by the Seventh Respondent (being the contravention of s 494 by the Sixth Respondent and the contravention of s 499 by the Second Respondent, both on 11 March 2014).
…
g) Nowhere in the Supplementary Judgment does the Court refer to any correspondence or submissions by the Respondents to the effect that the liability of the CFMMEU for section 503(1) contraventions by the individual Respondents was impacted by the relevant Federal Court decisions on the operation of section 793. Nor is there any reference to any correspondence or submissions by the Respondents to the effect that the Applicant could not plausibly continue to press for CFMMEU liability for the section 503(1) contraventions by the individual Respondents based solely on section 793.
(11) Accordingly, in the Applicant’s submission, it is tolerably clear that the Liability Judgment established the CFMMEU liability for all the section 503(1) contraventions by the individual Respondents, and the Supplementary Judgment did nothing to alter that position. The Supplementary Judgment depends entirely on the concessions which the Applicant made about CFMMEU liability and the Applicant never conceded that the CFMMEU liability for section 503(1) contraventions should not stand.
The Respondents’ primary submissions, filed 24th January 2020, regarding these disputed contraventions (pars.10 – 12), were as follows:
(10) The parties disagree about the correct interpretation of the Liability Judgment when read with the variations in the Supplementary Liability Judgment. The parties disagree on whether read properly the Court has found three or six contraventions against the CFMMEU. The disputed contraventions are listed as disputed contraventions 1-3 in the Roadmap.
(11) The ABCC submits that that correct interpretation of the judgments is that the three disputed contraventions have been found by the Court.[17] This submission ought to be rejected.
(12) The error in the approach adopted by the ABCC is that it appears to have ignored the following words in the Supplementary Liability Judgment at [26] “must lead to the result that, other than as admitted regarding the contraventions pleaded against Mr Kivalu and Mr Miller, the contraventions otherwise pleaded against the Seventh Respondent cannot succeed and must be dismissed.” Disputed contraventions 1-3 are in respect of the conduct of Hall and O’Mara. Accordingly, these alleged contraventions have been dismissed.
[17]Applicant’s Outline of Submissions dated 19 December 2019 (the ABCC’s Outline), [8]-[11].
Disputed contraventions – consideration & disposition
At the hearing on penalties, the parties agreed that par.26 of the supplementary judgment should be amended under the “slip rule”, whereby everything in that paragraph after the words “The Court must accept (a) the concessions of the Applicant” be deleted.[18]
[18] See T 38, 67 & 68.
For current purposes, it is sufficient to note the following matters in order to give effect to (a) the Court’s intention regarding the issues referred to in the contested contraventions set out in the two judgments of the Court regarding liability, (b) the correspondence provided by the parties to the Court following publication of the liability judgment, (c) the submissions of the parties regarding the contested contraventions, and (d) the agreed course proposed by the parties during the penalty hearing on 30th January 2020.
The principles regarding amendment of judgments are well settled. It is sufficient simply to refer to comments (without setting them out) by the High Court in L. Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No.2) and Burrell v The Queen.[19]
[19] L. Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No.2) (1983) 151 CLR 590; Burrell v The Queen (2008) 238 CLR 218 at [13] – [28].
The statutory basis for the Court to exercise such power is relevantly set out in Rule 16.05 of the Federal Circuit Court Rules 2001. Again, I need not set out this well-known Rule in circumstances where the parties have agreed that the amendment proposed be made.
The Court also agrees with the proposed amendment. This is particularly so in circumstances, as the Applicant pointed out in its primary submissions (at par.10(d)), where the concessions made by the Applicant (emphasis in original) “with respect to the operation of section 793 never included a concession that CFMMEU liability for a contravention of section 503(1) could no longer rely solely on section 793.” Further, in correspondence with the Court dated 15th March 2018, the Applicant stated (at par.12; set out above; emphasis in original):
… the Applicant continues to press the contraventions alleged against the Seventh Respondent in paragraphs 77 and 78 of the FASOC (i.e. the s 503 FW Act contraventions). In the Applicant’s view, as currently pleaded, these alleged contraventions are not impacted by the recent Federal Court decisions concerning s 793 because s 503 is directed to a “person” and can therefore be directly contravened by a body corporate such as the Seventh Respondent.
In correspondence to the Court dated 22nd January 2019 (at par.10(f) also set out above), the Applicant stated (emphasis in original):
c) … the applicant did not, as a result of the matters summarised at a)–0 [sic: e)] above, press for declarations sought in paragraph 79(w) of the FASOC except to the extent that they related to the Seventh Respondent’s admitted contraventions (by application of s 550 of the FW Act) and 503 of the FW Act.
d) … the applicant otherwise continued to press the contraventions alleged against the Seventh Respondent in paragraphs 77 and 78 of the FASOC (ie the s 503 FW Act contraventions).
In the light of [682] of the liability judgment, and the material set out above taken from the Applicant’s submissions, the submission by the Applicant at par.11 of its primary submissions filed 19th December 2019, in my view, are correct. Paragraph 11 stated:
… it is tolerably clear that the Liability Judgment established the CFMMEU liability for all the section 503(1) contraventions by the individual Respondents, and the Supplementary Judgment did nothing to alter that position. The Supplementary Judgment depends entirely on the concessions which the Applicant made about CFMMEU liability and the Applicant never conceded that the CFMMEU liability for section 503(1) contraventions should not stand.
Further, as noted by the Applicants, at [27] of the Supplementary Judgment, the Court stated specifically that the issue of the Union’s liability was dependent upon how the claim against it was pleaded, and no less significantly:
… the concessions made by the Applicant in relation to the import of certain decisions of the Federal Court of Australia regarding the operation of s.793 of the FW Act.
Otherwise I accept more generally the submissions of the Applicant regarding the liability of the Seventh Respondent Union pursuant to s.793 of the FW Act.
Properly and helpfully, the Respondents filed submissions regarding penalty, set out below, to cover the eventuality where the Court determined (as it now does) the contested contraventions as sought by the Applicant.
Should it need to be noted, in Parker v Australian Building and Construction Commission (“Parker”), the Full Court acknowledged without difficulty the fact that the trial Judge in that matter had revised/corrected in his penalty judgment certain matters that were set out in his judgment regarding liability.[20] This was in the context of confirming the trial Judge’s detailed consideration of matters relating to the determination of an appropriate penalty.
[20] Parker v Australian Building and Construction Commission (2019) 270 FCR 39 at [337].
Evidentiary & other matters
Before dealing with the respective submissions, providing an outline of principle, and then setting out the Court’s conclusions regarding penalty, there are a number of factual and evidentiary matters that need to be addressed. They arise from the following material: (a) the Statement of Agreed Facts between the Applicant and the Second Respondent, Mr Kivalu, filed 19th December 2019; (b) an Affidavit of Ms Miller (a lawyer in the employ of the Applicant’s lawyers), filed 19th December 2019, on behalf of the Applicant, regarding certain structural and other information concerning the Seventh Respondent Union; and (c) an Affidavit of Ms Read, filed 24th January 2020, on behalf of the Seventh Respondent, also concerning certain structural and other organisational matters. As already mentioned, there is also a Statement of Agreed Facts regarding the admitted contraventions of the Sixth Respondent, Mr Miller, and the Seventh Respondent Union, which is also set out later in these reasons.
Neither of the deponents, Ms Miller or Ms Read, were required for cross examination.
Statement of Agreed Facts: The Second Respondent, Mr Kivalu
Mr Kivalu’s Statement, which confirmed his employment with the Seventh Respondent Union at the relevant times, also contained details regarding the alleged contraventions for which he has accepted liability on three occasions, namely: (a) 21st October 2013 at the Nexus site; (b) 28th January 2014 at the Harrison site; and (c) 11th March 2014 at the Harrison site.
Mr Kivalu’s statement, signed by him on 17th December 2019 and filed 19th December 2019, was as follows (emphasis in original):
Statement of Agreed Facts between the Applicant and the Second Respondent
Pursuant to s. 191 of the Evidence Act 1995 (Cth) the Applicant and the First to Seventh Respondents agree that the following facts and relevant legal conclusions set out in this statement (Statement) are agreed to for the purposes of facilitating the making of submissions on pecuniary penalties and other orders. The Statement should be read in conjunction with the Court’s findings on liability set out in Commissioner of the Australian Building and Construction Commission v Hall [2018] FCCA 3532 as supplemented by Commissioner of the Australian Building and Construction Commission v Hall (No 2) [2019] FCCA 2055 (Liability Judgment).
1. At all material times, the Second Respondent, Mr Halafihi Kivalu (Mr Kivalu) was:
(a) an employee, officer and/or agent of the Seventh Respondent for the purposes of s 793 of the FW Act;
(b) an official of the Seventh Respondent for the purposes of s 12 of the FW Act;
(c) in relation to the matters set out in this Statement, acting in his capacity and within the scope of his actual or apparent authority as employee, officer and/or agent of the Seventh Respondent;
(d) a WHS entry permit holder under Part 7 of the Work Health and Safety Act 2011 (ACT) (WHS Act); and
(e) a 'permit holder' within the meaning of that term in s 12 of the FW Act.
Employment with the Seventh Respondent
2. Mr Kivalu commenced working for the Seventh Respondent on 21 November 2005, and ceased working for the Seventh Respondent in November 2014 (the Employment Period).
3. Mr Kivalu was initially employed as an Organiser, before being promoted to Lead Organiser sometime a few years later. Mr Kivalu’s duties as a Lead Organiser included assisting other organisers with their areas of responsibility, including helping them understand their duties and assisting with issues such as safety, right of entry and industrial issues relating to enterprise agreements.
4. At all material times Mr Kivalu was acting on behalf of the Seventh Respondent and within the scope of his actual or apparent authority as an officer of the Seventh Respondent.
Events of 21 October 2013
5. Mr Kivalu attended the Nexus Site on the morning of 21 October 2013. At all relevant times Mr Kivalu was exercising, or seeking to exercise his rights in accordance with Part 3-4 of the FW Act.
6. When Mr Kivalu arrived at the Nexus site, he presented his WHS and FW Act permits to the Site Manager of the Nexus Site. The Site Manager and Mr Kivalu had a conversation to the following effect:
Site Manager You don't have a valid entry
Kivalu Yes I do
Site Manager You are not allowed to enter the site without telling me the reason for entry. Why do you want to enter the site?
Kivalu We are here on a safety issue, we want to address some safety issues.
7. Mr Kivalu then approached the First Respondent, Dean Hall, who had arrived at the Nexus Site, and they had a conversation to the following effect:
Hall: There are safety issues here and we need to go on site. We also need to see whether some of the subbies' credentials are valid, including long service leave and workers compensation.
Kivalu: Yeah. No dramas.
8. Sometime after this conversation Mr Kivalu entered the Nexus Site and approached Perica Mioc, a bricklayer at the Nexus Site and director of Vipa Construction Pty Ltd, who was performing bricklaying duties on the Nexus Site. Mr Mioc was in the presence of three Village Project Workers. Stephen Fox, the Village Safety Officer, was also present. A conversation to the following effect then took place:
Kivalu: Boys everybody has to come down in two minutes. We need to have a small talk. Stop working.
Mioc: Steve [Fox], did you want us to come or to finish or what?
Fox: I will ask Mark [Azzopardi]
9. Mr Fox asked Mr Azzopardi if Mr Mioc and the other bricklayers should stop working. Mr Azzopardi replied with words to the effect of "no, keep working". Mr Kivalu then left to another part of the Nexus Site.
10. Approximately 20 minutes later, Mr Mioc walked past Mr Kivalu. Mr Kivalu stopped him and they had a conversation to the following effect:
Kivalu: Peter [Mioc], you are working illegally. Did you pay your long service leave levy? Come on, be a man, talk to me, show me.
Mioc: Why?
Kivalu: I have a girl on the phone, here talk to her. You are not paying your long service leave levy. You don't have insurances.
11. Mr Mioc refused to take the phone offered by Mr Kivalu or talk to the person on the phone. A conversation then took place to the following effect:
Mioc: Mate, I'm paying everything. I'm paying taxes for bludgers like you to come around and stop people working for nothing.
Kivalu: I have a number here I can call to ask about the levy
12. Mr Kivalu again offered his phone to Mr Mioc to speak to someone. Mr Mioc again refused to take the phone and a conversation took place to the following effect:
Mioc: Mate, I don't give a fuck.
Kivalu: Come on, listen, listen.
Mioc: I don't want to fucking listen.
Kivalu: Come on Peter, be a man, show me your insurances.
Mioc: Mate, who are you for me to show insurances to? I show them to those who need to see them.
Kivalu: You are not showing me because you don't have them. You will pay a $30,000 fine and I will make it so that you cannot work again in building.
13. The conversation ended and Mr Mioc walked away from Mr Kivalu.
14. By reason of the matters set out in paragraphs 0 and 0 - 0 above, Mr Kivalu intentionally hindered or obstructed Mr Mioc while exercising, or seeking to exercise, his rights under Part 3-4 of the FW Act and therefore contravened s 500 of the FW Act.
15. By reason of the matters set out in paragraphs 0 and 0 - 0 above, Mr Kivalu acted in an improper manner in his interactions with Mr Mioc while exercising or seeking to exercise, his rights in accordance with Part 3-4 of the FW Act, and therefore contravened s 500 of the FW Act.
Events of 28 January 2014
16. 28 January 2014 was known as a 'lock down day' in the Seventh Respondent. 'Lock down days' are weekdays where no work is performed. Lock down days are marked on the Seventh Respondent’s calendars which are distributed each year. Lock down days are adhered to by companies that have enterprise agreements with the Seventh Respondent.
17. In a meeting sometime before Mr Kivalu attended the Harrison Site on 28 January 2014, Mr Kivalu was informed by officials of the Seventh Respondent that the reason for attending the Harrison Site on 28 January 2014 was to confirm that the Seventh Respondent’s 'lock down day' was being complied with and that employees at the Harrison Site were not working.
18. On 28 January 2014, Mr Kivalu attended the Harrison Site with fellow officials of the Seventh Respondent including the Sixth Respondent, Kenneth Miller.
19. Mr Kivalu attended the Harrison Site at the direction of the Fourth Respondent, Jason O'Mara, then-Assistant Secretary of the ACT Branch of the Seventh Respondent.
20. Upon arriving at the Harrison Site Mr Kivalu and the other officials of the Seventh Respondent walked past a site security guard and into the site office.
21. In the site office Mr Kivalu met the Site Foreman, Goran Hajdar, and they had a conversation to the following effect:
Hadjar: Why are you on site?
Kivalu: Safety reasons. We want to walk through the site.
Hadjar: What is the safety breach?
Kivalu: We could see it from the fence lines. We have the right to enter.
Hadjar You can't do that, you need to be accompanied and I need to explain the site rules. I will need to see documentation or identification from you, I'll need your Federal and WHS Safety permit.
Kivalu: I have the right to enter the site and I don't need to be accompanied.
Hadjar: You need to stay in the site office area so we can go through the site rules and discuss the safety breaches. This is for everyone's safety. When that's done we can go as a group to look at your safety concerns.
Kivalu No we can go wherever we like. I have the right to enter the site without your escort. I can do whatever I like when onsite. We will go wherever we like.
22. Mr Kivalu showed Mr Hajdar his FW permit and WHS permit. Mr Hadjar looked at Mr Kivalu's permits and said words to the effect of "I can't let you guys in". Mr Hadjar observed that Mr Kivalu's FW permit had expired and stated words to the effect of "Fihi, your Federal Permit has expired". At some point during this conversation Mr Azzopardi, the National Construction Manager for Village, arrived at the site office.
23. Mr Kivalu became aggressive during this period and shouted at Mr Hadjar. He also yelled, swore, waved his hands around, stood in an aggressive manner and talked over the top of Mr Hadjar.
24. Mr Kivalu said to Mr Hajdar words to the effect of "if you don't let us in, I can have a bunch of people out here". Mr Azzopardi replied with words to the effect of "Fihi, that's a threat".
25. After approximately one hour in the site office, Mr Kivalu had a conversation with Mr Miller where Mr Kivalu said words to the effect, "this is ridiculous, we need to go on site. He is delaying our entry, we are just going to go on". Mr Kivalu then entered the site with Mr Miller unaccompanied by anyone from Village.
26. In behaving aggressively and shouting at a representative of Village and also yelling, swearing, waving his hands around, standing in an aggressive manner and talking over the top of that Village representative, Mr Kivalu behaved in an improper manner while exercising, or seeking to exercise, his rights under Part 3-4 of the FW Act.
27. By reason of the matters set out in paragraphs 16 – 23 and 26 above, Mr Kivalu contravened section 500 of the FW Act.
28. In asserting that he and the other officials of the Seventh Respondent had the 'right' to enter the Harrison Site unaccompanied and go wherever they wished to go on the Harrison Site, Mr Kivalu intended to give the impression, or was reckless as to whether the impression was given, that he and the other officials of the Seventh Respondent were authorised to do those acts under Part 3-4 of the FW Act when they were not so authorised.
29. By reason of the matters set out in paragraphs 16 - 21 and 28 above, Mr Kivalu contravened s 503 of the FW Act.
Events of 11 March 2014
30. On 11 March 2014, Mr Kivalu attended the Harrison Site alongside other officials of the Seventh Respondent to exercise his rights in accordance with Part 3-4 of the FW Act.
31. When Mr Kivalu arrived at the Harrison Site at approximately 11:15am he proceeded to the site office where he spoke with Mr Hadjar. Mr Azzopardi arrived at the site office shortly after Mr Kivalu arrived.
32. Mr Kivalu said to Mr Hadjar words to the effect that he and the other officials of the Seventh Respondent "want to go in for a safety walk". Mr Hadjar replied with words to the effect of "can I see your permits?" Mr Kivalu showed Mr Hadjar his FW and WHS permits.
33. Mr Kivalu had a conversation with Mr Hadjar to the following effect:
Hadjar why are you here?
Kivalu: we want to go for a safety walk
Hadjar: what is the specific safety breach?
Kivalu: there are fall protection issues.
34. Mr Kivalu had identified what may have constituted fall protection issues from outside the Harrison Site perimeter fence on his arrival at the Harrison Site and had been aware of specific fall protection concerns prior to attending the Harrison Site.
35. Mr Hadjar said words to the effect of "listen fellas we have our site safety rules. You need to stick by them. I need to take you through the rules. After we've gone through the rules we'll go to the specific site safety breach as a group. There are OHS reasons for this for your safety and the safety of those on site." Mr Hadjar continued to explain that it was a site safety rule for all visitors to be accompanied by someone inducted on the site.
36. Around this time Mr Kivalu and Mr Miller decided they would enter the Harrison Site despite Mr Hadjar's request that they not do so until they had been through the site safety rules and were accompanied by someone inducted on the site. Mr Miller and Mr Kivalu walked out of the site office unaccompanied by a site inducted person towards the areas of the Harrison Site under construction.
37. Mr Hadjar tried to stop Messrs Kivalu and Miller by shouting words to the effect of "stop, you can't go in there, you gotta have someone go out with you". Mr Azzopardi also repeatedly called to Mr Kivalu and Mr Miller to return to the site office. Mr Kivalu replied with words to the effect of "no, we have the right to walk on any site". Mr Kivalu did not return to the site office and both he and Mr Miller kept walking unaccompanied on the Harrison Site.
38. By walking on the Harrison Site unaccompanied, Mr Kivalu failed to comply with a reasonable occupational health and safety requirement which applied to the Harrison Site.
39. By reason of the matters set out in paragraphs 0 - 0 above, Mr Kivalu contravened s 499 of the FW Act.
Statement of Agreed Facts: Sixth Respondent, Mr Miller & the Seventh Respondent Union
The following Statement of Agreed Facts concerns the admission of liability by the Sixth Respondent, Mr Miller, for entering the Harrison building site without a federal permit on 11th March 2014, in breach of s.494 of the FW Act. There is also an admission by the Seventh Respondent Union that, at the relevant time, Mr Miller was acting on behalf of the Union, and within the scope of his authority as an official of the Union.
The Statement, filed 22nd September 2017, was as follows (emphasis in original):
1) This Statement of Agreed Facts (SOAF) should be read in conjunction with the Statement of Agreed Facts filed in the Court on 11 November 2016 (SOAF). Unless otherwise indicated, capitalised terms in this SOAF have the meaning given to them in the SOAF filed on 11 November 2016.
Kenneth Miller entry permit
2) On 27 December 2012, Fair Work Australia (as it was then known) issued an entry permit to Kenneth Miller (Miller) of the CFMEU under s 512 of the FW Act.
3) Section 516 of the FW Act provides that an entry permit expires when the permit holder ceases to be an official of the organisation that applied for the permit, and section 517 of the FW Act provides that an entry permit must be returned to the Fair Work Commission within 7 days of its expiry.
4) On 7 October 2013, the CFMEU – Forestry and Furnishing Products Division returned Miller’s FW Act permit to the Fair Work Commission and informed the Commission that the reason was that Miller was no longer an employee of the union.
5) On 15 April 2014, the CFMEU lodged an application for an entry permit for Miller. On 13 October 2014, Justice Boutlon [sic: “Boulton”] determined the application and issued an entry permit to Miller under s 512 of the FW Act.
6) Miller was not a permit holder under the FW Act during the period 7 October 2013 to 12 October 2014.
Events of 11 March 2014
7) On 11 March 2014, Miller attended the site office at the Harrison site, together with two other CFMEU officials, Halafihi Kivalu (Kivalu) and Garry Hamilton (Hamilton). The officials entered the site in exercise of the rights conferred by the WHS Act to enter premises to inquire into a suspected contravention of the WHS Act.
8) At this date, Miller was the holder of a valid WHS permit.
9) At the site, Miller, Kivalu and Hamilton spoke to Goran Hajdar (Hadjar), Village’s site manager.
10) Hadjar asked to see Miller’s WHS and FW Act permits. Miller showed his WHS permit to Hadjar but did not produce a FW Act permit.
11) Hajdar asked specifically to see Miller’s Federal permit. Miller replied in words to the effect: “I don’t need a Federal permit, I saw a safety breach, that gives me right of entry”. Miller did not produce a Federal permit for inspection.
12) Hajdar said to the three CFMEU officials “listen fellas we have our site safety rules. You need to stick by them. I need to take you through the rules. After we’ve gone through the rules we’ll go to the specific site safety breach as a group. There are OHS reasons for this for your safety and the safety of those on site”.
13) Miller and Kivalu then walked out of the site office and towards the building being constructed on the Harrison site. Hajdar called out “come back!” but they did not go back.
14) Hajdar telephoned two other Village managers, Stephen Fox (Fox) and Mark Azzopardi (Azzopardi) to advise them that the CFMEU officials were on the Harrison site.
15) Azzopardi arrived on site and walked quickly after Miller and Kivalu. Azzopardi said to Miller: “Please show me both your permits?” Miller replied: “I don’t have to”.
16) Hajdar called the police.
17) Miller then spoke to Fox, Village’s health and safety officer, and Tim Cody (Cody), a Village safety consultant.
18) Fox covertly recorded the conversation with the CFMEU officials.
19) Fox introduced himself to Miller and Kivalu. Miller said “We showed our safety, we bought our permits in”. Cody then asked Miller and Kivalu “What’s your reason for entry?” Miller replied: “I just said we’re here for safety issues. I have a federal permit. I’m not under the federal permit today. I’m here on safety…I’m not here for industrial relations”.
20) Fox then told Miller: “No no, but you still got to show your federal permit”. Miller responded: “No I don’t. I know the law. 30 odd years I’ve done this shit, man. I’m not showing it on principle. I’ve shown you the permit that’s required.”
21) Fox continued to assert that it was necessary for the permit holders to show their Federal permits as well as their WHS permits, which Miller and Kivalu continued to deny. Eventually Fox said: “All right. OK, Anyhow, let’s move along. I disagree, but anyhow I suppose Work Safe will resolve that.”
22) A little while later, after inspecting various alleged safety concerns and discussing the need to wear hi-vis safety vests, Fox returned to the question of needing to see the officials’ Federal permits. Miller said “Showed you my only permit I’m going to show you today. I have a Federal permit”. Later, Miller said “Mine’s in the car”. Fox said: “Well I need to see it! I need to see it.”
23) Miller maintained that he was not required to show his Federal permit because he had “come in on safety” and was “not here for industrial relations purpose”. Miller continued: “If I thought you were right I’d go to my car and get it. The thing is you’re wrong. And I’m standing here telling you, youse [sic] are wrong. And I have a permit”. Fox did not agree with Miller.
24) Meanwhile, three officers from the Australian Federal Police (AFP) had arrived at the Harrison site including Sergeant Willis. Two ABCC inspectors had also arrived at the Harrison site.
25) Mark Azzopardi, Hajdar and Fox spoke with the AFP officers and inspectors about the events that had occurred on site with the CFMEU.
26) Sergeant Willis from the AFP pulled Miller aside and asked Miller for his Federal permit. Miller told Sergeant Willis that his permit was "in the car".
27) Miller then left the Harrison site.
28) By entering the Harrison site without a Federal permit and exercising a State or Territory OHS right, Miller breached s 494 of the FW Act.
30) In doing so, Miller was acting on behalf of the CFMEU and within the scope of his authority as an official of the CFMEU.
Applicant’s primary submissions
The Applicant’s primary submissions, filed 19th December 2019, were as follows (footnotes and Annexure A omitted; emphasis in original):[21]
[21] Because the “Roadmap of Contraventions” was set out earlier in these reasons, it is unnecessary to replicate it here.
APPLICANT’S OUTLINE OF SUBMISSIONS
A. INTRODUCTION
1. The Applicant seeks that the Court make declarations and impose penalties in respect of the contraventions found by the Court in Commissioner of the Australian, Building and Construction Commission v Hall & Ors [2018] FCCA 3532 (Liability Judgment) as varied by the supplementary judgement in Commissioner of the Australian, Building and Construction Commission v Hall & Ors (No. 2) [2019] FCCA 2055 (Supplementary Liability Judgment)
2. The contraventions are as set out in the table contained in the ‘Roadmap of Contraventions’ filed by the parties on 16 December 2019 pursuant to the Court’s orders dated 14 November 2019. For convenience, the table is extracted at Attachment A to this Outline of Submissions.
3. All references to sections and other parts of legislation refer to the Fair Work Act 2009 (Cth) (FW Act) unless otherwise indicated.
B. FACTS
4. In support of the application for the imposition of penalties, the Applicant relies upon the findings of fact made by the Court in the Liability Judgment and Supplementary Liability Judgment. In addition to those facts, the Applicant relies upon:
(a) the evidence contained in the Affidavit of Ms Belinda Miller affirmed 19 December 2019 (Miller Affidavit);
(b) the Statement of Agreed Facts between the Applicant and the Second Respondent dated 17 December 2019; and
(c) the Statement of Agreed Facts between the Applicant, the Sixth Respondent and the Seventh Respondent (CFMMEU), dated 22 September 2017.
5. These are the primary facts upon which the Court ought to impose penalties upon the Respondents.
C. REGULATORY FRAMEWORK
6. The Applicant is a specialist regulator of the building and construction industry appointed under the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act). The Applicant is responsible for all functions delivered by the Australian Building and Construction Commission (ABCC). The ABCC ensures building industry participants comply with workplace relations laws (which includes the FW Act and the BCIIP Act).
7. The Applicant seeks:
(a) declarations pursuant to section 545(1) for each of the contraventions of the FW Act;
(b) orders pursuant to section 546 imposing appropriate pecuniary penalties on each of the respondents separately, for each of their contraventions of the FW Act; and
(c) an order pursuant to subsection 546(3) that any penalties imposed be paid to the Commonwealth of Australia within 28 days.
D. CLARIFICATION ON CFMMEU LIABILITY
8. As foreshadowed in correspondence to His Honour’s chambers on 16 December 2019 the parties disagree as to the correct interpretation of the Liability Judgment when read with the Supplementary Judgment insofar as it determines the CFMMEU’s liability for:
(a) the First Respondent’s contravention of section 503(1) on 30 October 2013;
(b) the First Respondent’s contravention of section 503(1) on 20 January. 2014;
(c) the Fourth Respondent’s contravention of section 503(1) on 11 March 2014.
9. These contraventions are listed as ‘disputed contraventions’ in the ‘roadmap of contraventions’ provided to the Court and extracted at Attachment A to these submissions.
10. In the Applicant’s submission, the Liability Judgment read together with the Supplementary Judgment does establish liability of the CFMMEU for all section 503(1) contraventions by the individual Respondents, including the three listed above. The reasons are as follows:
(a) In the Liability Judgment, the Court found the CFMMEU to be liable pursuant to section 793 “for those contraventions established against each of the individual Respondents”.[22]
[22] Liability Judgment at [682] (emphasis added).
(b) In the Supplementary Judgment, the Court reached the following conclusion as to the CFMMEU’s liability at paragraphs [26] – [27] (emphasis added):
26 Fifthly, for present purposes, in the light of:
(i) The comments of McHugh J in Coleman v Power, set out at the commencement of these reasons; and
(ii) The concession(s) made by the Applicants (set out above) regarding certain recent decisions of the Federal Court of Australia and their binding import on this Court, and
(iii) the Applicant consequently no longer pressing contraventions as pleaded against the Seventh Respondent;
The Court must accept (a) the concessions of the Applicant and (b) the submissions on behalf of the Seventh Respondent Union. These concessions must lead to the result that, other than as admitted regarding the contraventions pleaded against Mr Kivalu and Mr Miller, the contraventions otherwise pleaded against the Seventh Respondent cannot succeed and must be dismissed.
27. Put another way, summarily: the resolution of the claims made by the Applicant against the Seventh Respondent Union ultimately turn on (a) the way the claims were pleaded by the Applicant, and (b) the concessions made by the Applicant in relation to the import of certain decisions of the Federal Court of Australia regarding the operation of s.793 of the FW Act.
(c) Accordingly, the Court’s conclusion about the liability of the CFMMEU for the contraventions by the individual Respondents is expressly linked to the Applicant’s concessions about the operation of section 793.
(d) The concessions that the Applicant made with respect to the operation of section 793 never included a concession that CFMMEU liability for a contravention of section 503(1) could no longer rely solely on section 793. On the contrary, the Applicant expressly continued to press for CFMMEU liability for all section 503(1) contraventions based solely on the operation of section 793. This was because, in the Applicant’s submission, the relevant Federal Court decisions only determined that section 793 could not, on its own, be relied on to establish union liability for contravention of a provision directed to someone with the status of a ‘permit holder’. Since section 503 is not directed a ‘permit holder’ but rather a ‘person’ (which includes a body corporate such as a union), section 793 could continue to be relied on its own to establish union liability for a contravention of section 503(1) by a union official.
(e) The position above was conveyed clearly in correspondence to the Court and which the Court reproduced in the Supplementary Judgment. In particular, under the heading ‘The Applicant’s Concession(s)’ at paragraph [20], the Court sets out the Applicant’s correspondence of 15 March 2018 which included the following critical passages (emphasis added):
11) Not pressing the remaining alleged contraventions of ss 497, 499 and 500 by the Seventh Respondent
The Applicant wishes to inform the Court immediately that it no longer presses the contraventions alleged against the Seventh Respondent in the FASOC at:
(a) paragraphs 23 and 24 (i.e. the s 497 FW Act contraventions);
(b) paragraphs 45 and 46 (i.e. the s 499 FW Act contraventions) (except in respect of the contravention of s 499 by the Second Respondent on 11 March 2014 and which it is intended will be addressed in the proposed orders to amend the FASOC); and
(c) paragraphs 63 and 64 (i.e. the s 500 FW Act contraventions).
12)
13) As a consequence of paragraphs 11 and 12 above, the Applicant no longer presses the declarations sought in paragraph 79(w) of the FASOC except to the extent that they relate to:
(a)the Seventh Respondent’s admitted contraventions, pursuant to s 550 of the FW Act, by reason of the respective contraventions set out in Orders (a) and (g); and
(b) the Seventh Respondent's alleged contraventions of s 503 of the FW Act by reason of the respective contraventions set out in Orders (s) – (v).
14) The Applicant has provided a copy of this letter to the Respondents prior to sending it to the Court and has also sent them a copy in final form.
(f) Further, the Court then at paragraph [21] set out further correspondence from the Applicant to the Court on 22 January 2019 sent with the consent of the Respondents which included the following critical passages (emphasis added):
3) A copy of that correspondence [of 20 March 2018] is enclosed for ease of reference. In summary, as His Honour may recall, the applicant:
a) Confirmed the concessions, made in the applicant's further submissions in reply, that the applicant was unlikely to succeed on those parts of its claim against the Seventh Respondent that alleged liability of the CFMEU in respect of:
i) the s 497 Fair Work Act 20019 (FW Act) contraventions;
ii) the s 499 FW Act contraventions; and
ii) the s 500 FW Act contraventions.
b) Confirmed that the applicant was not pressing those parts of its claim alleging contraventions against the Seventh Respondent at:
i) paragraphs 23 and 24 of the FASOC (ie the s 497 FW Act contraventions)
ii) paragraphs 45 and 46 of the FASOC (ie the s 499 FW Act contraventions); and
iii) paragraphs 63 and 64 of the FASOC (ie the s 500 FW Act contraventions).
c) Confirmed the applicant did not, as a result of the matters summarised at a)–0 above, press for declarations sought in paragraph 79(w) of the FASOC except to the extent that they related to the Seventh Respondent’s admitted contraventions (by application of s 550 of the FW Act) and 503 of the FW Act.
d) Confirmed that the applicant otherwise continued to press the contraventions alleged against the Seventh Respondent in paragraphs 77 and 78 of the FASOC (ie the s 503 FW Act contraventions).
e) By consent, sought leave to amend the FASOC to plead liability of the Seventh Respondent, by application of s 550, in respect of the two contraventions admitted by the Seventh Respondent (being the contravention of s 494 by the Sixth Respondent and the contravention of s 499 by the Second Respondent, both on 11 March 2014).
…
(g) Nowhere in the Supplementary Judgment does the Court refer to any correspondence or submissions by the Respondents to the effect that the liability of the CFMMEU for section 503(1) contraventions by the individual Respondents was impacted by the relevant Federal Court decisions on the operation of section 793. Nor is there any reference to any correspondence or submissions by the Respondents to the effect that the Applicant could not plausibly continue to press for CFMMEU liability for the section 503(1) contraventions by the individual Respondents based solely on section 793.
11. Accordingly, in the Applicant’s submission, it is tolerably clear that the Liability Judgment established the CFMMEU liability for all the section 503(1) contraventions by the individual Respondents, and the Supplementary Judgment did nothing to alter that position. The Supplementary Judgment depends entirely on the concessions which the Applicant made about CFMMEU liability and the Applicant never conceded that the CFMMEU liability for section 503(1) contraventions should not stand.
E. PRINCIPLES APPLICABLE TO DECLARATIONS
12. The Court’s power to grant declaratory relief is set out in section 16 of the Federal Circuit Court of Australia Act 1999 (Cth) which provides:
Declarations of right
(1) The Federal Circuit Court of Australia may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2) A proceeding is not open to objection on the ground that a declaratory order only is sought.
13. This is relevantly identical to the power of the Federal Court to grant declaratory relief set out in section 21 of the Federal Court of Australia Act 1976 (Cth).
14. Additionally, pursuant to section 545(1) of the FW Act, the Court may “make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision”.
15. It is uncontroversial that this Court and the Federal Court commonly grant declaratory relief in cases in which civil remedy provisions of the FW Act are contravened, including the right of entry provisions in issue in this case.
16. The Applicant has expressly sought relief in this proceeding in the form of declarations in respect of each contravention alleged in the further amended statement of claim. This is in addition to the imposition of pecuniary penalties in respect of each alleged contravention.
17. In the Liability Judgment, the Court generally provides that in respect of those alleged contraventions found to be established, the Applicant is entitled to the relief which he sought in respect of those contraventions.
18. Accordingly, in the Applicant’s submission, the Liability Judgment supports that the declarations sought in the Further Amended Statement of Claim be granted in respect of all contraventions found to be established.
19. However, the Applicant has been put on notice (although in general terms only) that the Respondents intend to raise arguments against such a course.
20. First, it was foreshadowed at directions hearings earlier this year and in correspondence between the parties that the Respondents intend to argue that there should not be any declarations made because there would be no utility in the making of such declarations given that the conduct dates back to August 2013 and there have been no further contraventions found over a prolonged period.
21. Other than noting that the Applicant will vehemently resist any such argument, the Applicant awaits the Respondents’ detailed articulation of this argument before providing his response.
22. Second, the Applicant notes the recent decisions of Snaden J in Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070 (Milin Builders) and Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 (Pattinson) in which His Honour declined to grant declaratory relief on the basis that such relief would have no utility in light of the pecuniary penalty His Honour awarded in respect of the relevant contraventions.
23. In Milin Builders, His Honour provides a comprehensive review of the relevant authorities on the issue of declaratory relief. His Honour accepts (although “with difficulty and scepticism”) that binding authority supports the proposition that the court has power to grant declaratory relief “that does nothing more than state that a respondent’s prior conduct was engaged in in contravention of a statute”. Pointing out that it is a discretionary remedy, Snaden J then focuses on the question of whether there would be “practical utility” in granting such relief, since such relief should not be granted where doing so would be “pointless”.
24. Snaden J acknowledges a line of authority which has accepted that declarations have “some wider educative effect”. He concludes, “despite what would otherwise be [his] strong contrary inclination”, that the court is able to grant declaratory relief as a means of “marking its disapproval of conduct found to have been undertaken in breach of a statute” or in some situations “to realise some broader educative or deterrent effect, or otherwise to vindicate or assist an applicant’s actions”.
25. Accordingly, there is nothing in Snaden J’s analysis which militates against the Court granting the declarations sought by the Applicant in this case in respect of the established contraventions. His Honour’s discretionary decision on whether to award declaratory relief in those particular cases before him says nothing about its appropriateness in the present case.
26. Indeed, the present case is just such a case when the educative value of declarations is appropriate (particularly in the form the Applicant has proffered, which includes some relevant factual detail as to the basis of the contravention: see Attachment B). In this regard, it is apposite to refer to the comments of this Court at paragraphs [11] –[22] of the Liability Judgment which succinctly articulate the crux of the problem as between union officials exercising their work health and safety rights and the construction workers who were on the ‘receiving end’ of that conduct. As was explained at [15] – [18]:
15. All of this is to say, in a prefatory way, that many, if not most, construction workers (certainly most of those who gave evidence in the current proceeding) were not relevantly qualified or sufficiently experienced to deal with, let alone to challenge, various and sometimes sweeping statements by Union officials on matters of compliance with safety and other requirements, for example, the rights of permit holders. This may be a regulatory failure to consider later. However, in this instance, a number of “artisans” of long experience who were trying to earn a living were being challenged about their work and safety practices. They were ill-equipped to deal with, let alone to challenge, the often changeable, broadly-stated, claims made by Union officials on a building site. They were “artisans”, not lawyers.
16. And it should be said, in no critical way, that most of the Union officials also were not lawyers, although one in the current matter is a lawyer and another is a law student. However, they regularly spoke to these artisans with an authority and confidence, but usually without much precision - and conversely in wide sweeping statements regarding work and safety practices – which, in my view, to a non-lawyer would be, I suggest, either quite confusing and or intimidating. This was certainly the evidence of some of the Applicant’s witnesses.
17. This said, I accept that the general intention of the Union officials involved in the current matter was to protect the safety of workers on building sites. But just as the artisans were not well informed about regulations and the like, regarding for example certain “slings” used on a concrete pour, it often seemed that the level of information either known, understood and or communicated by the Union officials was, at least, “uneven” or widely variable. Confidence (or “swagger”) and or experience is important, but actual detailed knowledge of regulations, building codes (rather than general statements) is equally critical and appeared to be lacking, or at least not communicated, at times in the matters before the Court.
27. In the Applicant’s submission, these comments squarely support the appropriateness of granting declarations in the present case, first, to demonstrate disapproval of the conduct that had been going on and, second, to educate both union officials and construction workers as to the appropriate standard of conduct required by permit holders.
F. PRINCIPLES APPLICABLE TO IMPOSITION OF PENALTIES
28. Each of provisions of the FW Act that are the subject of the contraventions listed in Attachment A are civil remedy provisions of the FW Act. They are assigned penalties pursuant to the table at section 539 of the FW Act (and appear at item 25 of that table).
29. In each case, the maximum penalty for each contravention here is 60 penalty units for the First to Sixth Respondents, and 300 penalty units for the CFMMEU. Penalty units are defined in section 12 with reference to s 4AA of the Crimes Act 1914 (Cth).
30. At the time of the conduct in this case (i.e. 21 August 2013 – 11 March 2014), the value of a penalty unit was $170. Accordingly, the maximum penalty that might be imposed for each contravention by the First to Sixth Respondents is $10,200. The maximum penalty that might be imposed for each contravention by the CFMMEU is $51,000.
31. The Court exercises a wide discretion when determining whether a penalty is to be imposed in respect of contraventions of the FW Act and if so, the quantum of the penalty. The following broad considerations or steps are to be addressed in setting a pecuniary penalty under s 546(1):
(a) identifying the central object of the imposition of a pecuniary penalty, being to serve as an effective deterrent against further contraventions of the FWAct;
(b) considering the application of pecuniary penalties to multiple contraventions of the FWAct, including:
(i) application of section 556 (civil double jeopardy) where relevant;
(ii) assessing the penalties applicable against each course of conduct engaged in by each of the Respondents;
(c) reassessing the penalty for each Respondent as a reflection of the totality of the conduct.
32. The Court ought to impose a civil penalty having regard to the object of securing compliance with the statutory regime: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Another (2015)258CLR482 (Cth v DFWBII) at [24].
33. The principal object of a civil penalty is deterrence: Trade Practices Commission v CSR Ltd [1991]ATPR52-135 (TPC v CSR) at 52,152. The High Court recently stated, in ABCC v CFMEU (2018) 262 CLR 157 at [116], that the “principal object of an order that a person pay a pecuniary penalty under s.546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners”.
34. Thus, the primary purpose of any civil penalty regime is to ensure compliance with the legislation by deterring future contraventions. Deterrence applies at two levels:
(a) to other potential contraveners in the community at large – general deterrence; and
(b) the specific Respondents found to have contravened the legislation in this instance – specific deterrence.
35. Whereas criminal sentencing involves notions of retribution or rehabilitation, civil pecuniary penalties do not. They are, “primarily if not wholly protective in promoting the public interest in compliance”: Cth v DFWBII at [55], [59], [68] and [110].
36. It is also now clear that these considerations apply generally to all civil penalty regimes and are not confined to any one Act or sphere of Commonwealth regulation. The High Court applied the statements of principle from the sphere of competition law to an industrial law context under the Building and ConstructionIndustryImprovementAct2005(Cth) in Cth v DFWBII at [55], [59], [68] and [110] as cited above.
37. To the extent that criminal sentencing principles may still be useful, they do not have binding application to the process of setting a civil pecuniary penalty.
38. In assessing an appropriate penalty, the Court ought to consider the factors identified in TPC v CSR at 52,152, Kelly v Fitzpatrick (2007) 166 IR 14 at [14] and Rojas v Esselte Australia Pty Ltd (No 2) (2008)177IR306 (Rojas v Esselte) at [65]. A number of factors are considered relevant in considering a penalty of appropriate deterrent value in cases such as the present. They include:
(a) the nature and extent of the contravention;
(b) the circumstances in which the contravention took place;
(c) the nature and extent of loss and damage suffered as a result of the contravention;
(d) whether the contravener has engaged in any similar conduct in the past;
(e) the size and nature of the contravener;
(f) whether the contraventions involve senior management;
(g) any contrition or corrective action taken; and
(h) any co-operation with authorities which has been shown.
39. Although ‘checklists’ of this kind are identified in the authorities as a useful starting point in determining whether a penalty ought to be imposed, and if so the quantum of such a penalty, the task of the Court is to fix a penalty that pays appropriate regard to the contraventions that have occurred: Rojas v Esselte at [65] citing Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [91]. Ultimately, the task which a sentencing judge is faced with is one of ‘instinctive synthesis’. Such a process requires that a court take into account all relevant factors and to arrive at a result which takes due account of them all. Proportionality and consistency commonly operate as a final check on the penalty assessed.
40. The Court has also 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 [2015] FCA 226, Tracey J at [30] stated:
The size and nature of the organisation is a relevant factor in the assessment of an appropriate penalty: see Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13; (2003) 196 ALR 350 at 358. This is because, generally, a failure to comply with an injunction or an undertaking which binds a large and powerful entity will be more likely to have an adverse impact on the public interest in the effective administration of justice than will a similar contravention by an individual engaged in private litigation. 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.
41. Even though there may be no indication that a respondent will contravene a civil penalty provision in the proximate future, a penalty must be imposed which will act as a reminder to the respondent and the community of the consequences of the admitted contraventions, and this can be the most significant factor in determining the penalty in particular cases: Australian Competition and Consumer Commission v Telstra Corporation Limited (2010) 188 FCR 238, [2010] FCA 790 at [204]. This can be so even where no loss is caused to the public: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 at [57].
42. As indicated above, deterrence (both specific and general) must play the primary (or sole) role in assessing the appropriate penalty in cases of contraventions of regulatory legislation, including the FW Act. Penalties should not be such that they are seen by contraveners as merely ‘a cost of doing business’.
G. APPLICATION OF PRINCIPLES TO THE PRESENT CASE
The nature, extent and circumstances of the contraventions
43. The Court is to appropriately have regard to the nature, extent and circumstances of the contraventions.
44. By way of overarching comment, the Court has found that while the general intention of the individual Respondents may have been to protect the safety of workers on building sites, the level of information either known, understood or communicated by them was uneven and widely variable, without much precision and consisting of wide sweeping statements regarding work and safety, spoken with an air of authority and confidence that was confusing and intimidating for the construction workers at the three sites. The result was ultimately a campaign of conduct over several months in which the Respondents repeatedly breached their right of entry obligations and occasioned disruption, hindrance and delay to workers across the three sites.
Contraventions of First Respondent (Hall)
45. Breach of section 497 on 21 August 2013 at the Nexus Site: The Court has found that Hall failed to comply with repeated requests by representatives of Village to produce his Federal entry permit for inspection. Hall was at the relevant time the Secretary of the ACT Branch of the CFMMEU and had extensive experience. In those circumstances, the Court found that Hall would have known he was required to produce his entry permit for inspection and the failure to do so was “at least, negligent” but also “a needless obstacle that did not need to occur”.
46. Breach of section 500 on 21 October 2013 at the Nexus Site: The Court has found that Hall breached section 500 by his persistent questioning of, and comments to, workers on site which had the clear effect of impeding and ultimately stopping a concrete pour. That questioning and commentary was “tireless and constant” and “replete … with general and undetailed references to the possibility of other potentially deleterious action the concreter(s) may face”, leading the Court to conclude that Hall’s conduct “rather significantly ‘over stepped the line’”. Moreover, the Court accepted that some of Hall’s comments were taken by at least one worker as a threat.
47. Breach of section 503(1) on 30 October 2013 at the Nexus Site: The Court has found that Hall breached section 503(1) by misrepresenting to workers that he had the relevant power or authority to stop concrete trucks and a concrete pour. While the Court accepted there had been an ‘educative’ motivation behind his statements, he had failed to appropriately clarify his comments and had thereby “significantly over-played his hand on this occasion”.
48. Breach of section 497 on 20 January 2014 at the Stromlo Site: The Court has found that Hall breached section 497 by, firstly, producing a shrunken version of his entry permit when requested by one representative of Victory and, secondly, not producing his Federal entry permit at all when requested by a second Victory representative. As to the first request, the Court noted that a person requesting to inspect an entry permit ought to be able to do so without the need for any “special reading”, whereas the version of the permit produced by Hall was “extremely difficult to read” and made the process of checking it “extremely difficult”. As to the second request, the Court found that Hall declined to produce even the shrunken version of his entry permit. The Applicant submits that, as with the breach of section 497 on 21 August 2013, Hall’s conduct in declining to produce his permit the second time was a “needless obstacle that did not need to occur”.
49. Breach of section 499 on 20 January 2014 at the Stromlo Site: The Court has found that Hall breached section 499 by walking off onto the site unaccompanied (including up scaffolding) and in breach of site safety rules. This is despite the fact that Hall conceded that being accompanied would have enabled his safety questions to be answered. The Court found that had Hall conformed with the requirement to remain accompanied, a representative of Victory would have been able to explain to Hall the engineered solution to the scaffolding that was concerning him. In this way, Hall’s conduct was entirely counterproductive insofar as it defeated the very basis on which he had entered the site that day, namely to investigate suspected safety breaches.
50. Breach of section 500 on 20 January 2014 at the Stromlo Site: The Court has found that Hall breached section 500 by proceeding on site unaccompanied (including up scaffolding) in defiance of a request not to do so by a Victory representative and making a rude gesture with his fingers at a Victory representative. That conduct was blatantly improper for any permit holder, let alone one who is also a union secretary. For that reason, the fact that Hall claimed that his actions were borne from “frustration” rather than “maliciousness” and that a Victory representative had also yelled and swore at him, have little (if any) mitigating quality.
51. Breach of section 503(1) on 20 January 2014: The Court has found that Hall breached section 503(1) by telling a Victory representative that his entry permit overrode their site safety rules and that because he had entered the site for work, health and safety reasons he could “do whatever he wanted”. The Court found these to be “clear misrepresentations” as to Hall’s power or authority as a permit holder.
52. The Applicant submits that the objective seriousness of the nature, extent and circumstances of each of Hall’s contraventions requires the Court to consider penalties at the high range of the maximum of the permissible range.
Contraventions of the Second Respondent (Kivalu)
53. Breach of section 500 on 21 October 2013 at the Nexus Site: The Court has found that Kivalu breached section 500 by stopping a bricklayer, accusing him of not paying a long service leave ‘levy’, demanding evidence of his insurances and threatening that he would be liable to a fine if he did not do so.
54. Breach of section 500 on 28 January 2014 at the Harrison Site: The Court has found that Kivalu breached section 500 by yelling, swearing and waving his hands around in an aggressive manner towards a Village representative.
55. Breach of section 503(1) on 28 January 2014 at the Harrison Site: The Court has found that Kivalu breached section 503(1) by misrepresenting to a Village representative that his (and other CFMMEU officials’) right of entry powers entitled them to enter the site in disregard of Village’s site safety rules and go wherever they liked.
56. Breach of section 499 on 11 March 2014 at the Harrison Site: The Court has found that Kivalu breached section 499 by walking onto the site unaccompanied in breach of an occupational health and safety requirement that Village applied to the site.
57. The Applicant submits that the objective seriousness of the nature, extent and circumstances of each of Kivalu’s contraventions requires the Court to consider penalties at the mid range of the maximum of the permissible range. The impact of Kivalu admitting all the contraventions against him at an early stage of the proceedings and not participating in the hearing is considered and discussed further below.
Contraventions of the Third Respondent (Lomax)
58. Breach of section 500 on 21 October 2013 at the Nexus Site: The Court has found that Lomax breached section 500 by being involved in Hall’s contravention of section 500. The Court was satisfied that Lomax was on the deck with Hall when he persistently questioned workers and thereby impeded and eventually stopped a concrete pour. The Court was further satisfied that Lomax ultimately did nothing to dissociate himself from that conduct. In the Applicant’s submission, the comments that Lomax was found to have made demonstrated a general acquiescence to, if not support of, Hall’s conduct.
59. The Applicant submits that, accepting that Lomax is somewhat less serious than Hall who in fact engaged in the conduct contravening section 500, the objective seriousness of the nature, extent and circumstances of Lomax’s contravention requires the Court to consider a penalty at the lower end of the maximum of the permissible range.
Contraventions of the Fourth Respondent (O’Mara)
60. Breach of section 497 on 21 August 2013 at the Nexus Site: The Court has found that O’Mara failed to comply with repeated requests by representatives of Village to produce his Federal entry permit for inspection. O’Mara was at the time the Assistant Secretary of the ACT Branch of the CFMMEU and had extensive experience.[23] In those circumstances, the Court found that O’Mara would have known he was required to produce his entry permit for inspection and the failure to do so was “at least, negligent” but also “a needless obstacle that did not need to occur”.
[23] Liability Judgment at [69], [78(d)].
61. Breach of section 499 on 11 March 2014 at the Harrison Site: The Court has found that O’Mara breached section 500 by walking off unaccompanied on site and going on site when there were already two CFMMEU officials on the site undertaking a safety inspection, in contravention of Village’s site safety rules. This is so, despite O’Mara recognising that a site rule requiring visitors/officials not to be unaccompanied was appropriate because of the inherent dangers on construction sites. O’Mara demonstrated defiance in response to Village’s site safety rule of having not more than two visitors/officials on site at once, stating in his oral evidence that he wanted to “make a point” that Village was “wrong” to have such a rule and that he could require as many permit holders to site as he needed. In the circumstances, O’Mara’s contravention was a flagrant disregard of the occupier’s occupational health and safety requirements.
62. Breach of section 503(1) on 11 March 2014 at the Harrison Site: The Court has found that O’Mara breached section 503(1) by being reckless about giving the impression that he was authorised to enter the site in disregard of Village’s site safety rules. The fact that O’Mara may have believed that Village was “wrong” about its rule of having not more than two visitors/officials on site at once does not mitigate the gravity of this contravention in circumstances where O’Mara provided no evidence of having any basis (in the form of legal advice or otherwise) to hold that opinion. Moreover, as noted above, O’Mara accepted that the site rule requiring visitors/officials not to be unaccompanied was appropriate because of the inherent dangers on construction sites. This heightens the seriousness of the breach.
63. The Applicant submits that the objective seriousness of the nature, extent and circumstances of each of O’Mara’s contraventions requires the Court to consider penalties at the high range of the maximum of the permissible range.
Contraventions of the Fifth Respondent (Smith)
64. Breach of section 499 on 30 October 2013 at the Nexus Site: The Court has found that Smith breached section 499 by wandering off on his own in contravention of a request by a Village representative to stay together with Village personnel. Smith committed this contravention despite the fact that he was aware that it is common practice on construction sites for permit holders to be accompanied on site. Moreover, he conceded that when he wandered off on his own he went towards a cordoned-off excavation area. The danger in his actions is obvious and totally unacceptable for a permit holder exercising entry rights in pursuit of safety concerns, especially when, as the Court found, significant construction was underway. On top of that, the Court found a degree of ‘attitude’ on Smith’s part.
65. Breach of section 500 on 30 October 2013 at the Nexus Site: The Court has found that Smith breached section 500 by engaging in physical and verbal aggression and swearing towards a Village representative. This occurred, in part, in close personal proximity. Critically, the Court found that: “[e]ven if viewed in a relatively benign manner, and giving every allowance for robust discussion on a building site, Mr Smith’s conduct, exhibited towards the much more senior and experienced Mr Northey, amounted to a degree of disrespectful braggadocio, which had no place on a building site”.
66. The Applicant submits that the objective seriousness of the nature, extent and circumstances of each of Smith’s contraventions requires the Court to consider penalties at the high range of the maximum of the permissible range.
Contraventions of the Sixth Respondent (Miller)
67. Breach of section 494(1) on 11 March 2014 at the Harrison Site: The Court has found that Miller breached section 494(1) by entering the site in exercise of his State or Territory OHS right without holding a Federal entry permit. The evidence is that Miller refused to accept that he was required to produce a Federal entry permit because he was at the site for ‘safety reasons’ rather than ‘industrial relations’. This erroneous position was maintained by Miller despite the fact that he claimed to have “30 odd years” of experience. Worse than that, Miller erroneously represented to the Village representatives that he did in fact have a Federal entry permit and that it was in his car. He also made the latter statement to police officers. While it might be suggested that the seriousness of the contravention is lessened by the fact that Miller had been a Federal entry permit holder and his permit had lapsed on ceasing to be an employee of the Forestry and Furnishing Division of the CFMMEU, that event had occurred some five months earlier.
68. The Applicant submits that the objective seriousness of the nature, extent and circumstances of Miller’s contraventions requires the Court to consider a penalty at the mid range of the maximum of the permissible range. The impact of Miller admitting the contravention during the hearing is considered and discussed further below.
Contraventions of the Seventh Respondent (CFMMEU)
69. The CFMMEU has liability in respect of the following contraventions by its officials:
(a) Hall’s contravention of section 503(1) on 30 October 2013 at the Nexus Site (by virtue of section 793);
(b) Hall’s contravention of section 503(1) on 20 January 2014 at the Stromlo Site (by virtue of section 793);
(c) Kivalu’s contravention of section 503(1) on 28 January 2014 at the Harrison Site (by virtue of section 550);
(d) Kivalu’s contravention of section 499 on 11 March 2014 at the Harrison Site (by virtue of section 550);
(e) O’Mara’s contravention of section 503(1) on 11 March 2014 at the Harrison Site (by virtue of section 793);
(f) Miller’s contravention of section 494 on 11 March 2014 at the Harrison Site (by virtue of section 550).
70. Recently, Snaden J in Pattinson surveyed the authorities and concluded, relying on Construction, Forestry, Maritime, Mining and Energy Union v ABCC (The Broadway on Ann Case) [2018] FCAFC 126, that in assessing the nature, character and seriousness (or gravity) of the CFMMEU’s contraventions, regard may properly be had to its history of contravening conduct. This Court should adopt that approach. As explained at paragraphs 0 - 0 below, the CFMMEU has a dismal history of contravening conduct. Accordingly, the Applicant submits that the objective seriousness of the nature, extent and circumstances of the CFMMEU’s contraventions requires the Court to consider a penalty at the high range of the maximum of the permissible range. The impact of the CFMMEU admitting the contraventions of Kivalu’s and Miller’s contraventions on 11 March 2014 during the hearing is considered and discussed further below.
The loss and damage suffered as a result of the contraventions
71. There is no evidence of financial loss or damage suffered by Village or Victory or any of the building contractors engaged in work at any of the three sites. However, it ought to be noted that in the Liability Judgment, the Court found that:
(a) the conduct of Hall and O’Mara in contravention of section 497 on 21 August 2013 amounted to a “needless obstacle that did not need to occur”;
(b) the same is true of Hall’s contravention of section 497 on 20 January 2014;
(c) the conduct of Hall in contravention of section 500 on 21 October 2013, which was “aided and abetted” by Lomax, impeded and ultimately stopped the final concrete pour occurring on the Nexus site that day.
72. Further, it may generally be inferred that all the contraventions of sections 499, 500 and 503 contributed to an interference and interruption with the work being conducted across the three sites insofar as they necessitated representatives of Village and Victory and some of their contractors being diverted from their work in order to deal with the individual Respondents in the course of their contraventions.
There has been similar contravening conduct in the past
73. The CFMMEU is a recidivist offender. The CFMMEU has a dismal record of repeated contraventions of civil penalty provisions in industrial legislation that has been the subject of adverse characterisation by courts on many occasions. The Applicant refers to the extensive table of prior contraventions and the penalties imposed on the CFMMEU, which is Exhibit BM-5 to the Miller Affidavit. A small collection of judicial comments about the CFMMEU’s penal history was recorded recently, including “dismal”, “appalling” and “reveal[ing] a lamentable, if not disgraceful, record of deliberately flouting industrial laws”.
74. The table of contraventions annexed to the Miller Affidavit indicates that the CFMMEU has been found to have contravened industrial legislation in 159 different cases, many involving more than one contravention. Of those 159 cases, 107 of them involved conduct that pre-dated the first contravening conduct found to have occurred in the present case—that is, conduct that occurred prior to 21 August 2013.
75. In relation to those individuals involved in the present proceeding, the only one with a contravention history is Lomax who has been involved in one case involving one contravention (section 348). The contravention occurred around the same time period as the contraventions in this case.
The size and nature of the CFMMEU is significant
76. The CFMMEU is a large, influential and well-resourced national union. This Court has previously made observations about the CFMMEU’s size, role and favourable treatment under the FWAct. This factor is therefore relevant when determining the appropriate penalty.
77. The most recent accounts lodged with the Registered Organisations Commission by the Construction and General Division of the Australian Capital Territory Divisional Branch of the CFMMEU, for the year ended 31 March 2019, indicate that Division alone received over $1.3 million in revenue from membership subscriptions and levies for industrial campaigns in the year ended 31 March 2019, and over $3.7 million in revenue in the year ended 31 March 2019.
78. The Australian Capital Territory Divisional Branch of the CFMMEU has net liabilities of $289,961 as at 31 March 2019.
79. The National Office of the Construction and General Division has net assets of $9,647,105 in the year ended 31 March 2019.
80. The evidence supports the conclusion that the CFMMEU has sufficient means to pay any penalties imposed by this Court. In fact, they are, unfortunately, simply a cost of the way in which the CFMMEU does business.
81. The Full Federal Court made the following statements in relation to a recidivist offender in ACCC v High Adventure Pty Ltd [2005] FCAFC 247, [2006] ATPR 42-091 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.’ (emphasis added)
Mitigation
82. Other than the Second and Sixth Respondents, the Respondents can point to nothing by way of mitigation. The Applicant was put to the full cost and trouble of proving his case. There is no basis for any suggestion of remorse or contrition. The Respondents have not sought to apologise for their unlawful conduct, nor have they otherwise sought to take corrective action. There is no evidence to suggest that the CFMMEU has done anything, or intends to do anything, to reduce or eliminate the prospect of similar contraventions occurring in the future. The Respondents’ approach to the proceedings is indicative of a lack of insight into the wrongfulness of their conduct which again emphasises the need for specific deterrence.
83. The Court should accept that, by virtue of the sheer number of prior contraventions committed by the CFMMEU over more than a decade, the CFMMEU and its officials and employees operate pursuant to a brazen willingness to contravene the law.
Specific deterrence
84. Credit is to be afforded to the Second Respondent who admitted all contraventions alleged against him at an early opportunity and did not participate in the hearing, thereby relieving the Applicant from preparatory work and the full hearing on liability in respect of his contraventions. He also cooperated with the Applicant in formulating a statement of agreed facts for the purpose of assisting the Court in the determination of penalty.
85. While the Sixth Respondent also admitted the contravention alleged against him, this did not occur until mid-way through the hearing. As such, the Applicant was still put to the trouble of all preparatory work for a full hearing on liability in respect of his contravention. He did, however, cooperate with the Applicant in formulating a statement of agreed facts for the purpose of assisting the Court in the determination of penalty. The credit to be afforded to the Sixth Respondent for admitting his contravention at a late stage should be minimal.
86. The CFMMEU admitted liability for the contraventions of Kivalu and Miller on 11 March 2014. However, as with Miller’s admission, these admissions were not made until mid-way through the hearing. For the same reasons given above, the CFMMEU should be afforded minimal credit for admitting two contraventions at a late stage.
87. As noted above, the CFMMEU is a large, well-resourced national organisation with a direct interest in industrial matters. Its role in the industrial relations framework in Australia is recognised in statute, including within the FWAct.
88. The Applicant understands that Hall, Kivalu, and Miller are no longer officials nor employees of the CFMMEU. O’Mara was, and still appears to be, an employee and official of the CFMMEU (now the Secretary of the Australian Capital Territory Divisional Branch) and continues to be a permit holder. Smith was still an employee and official of the CFMMEU as at 31 March 2019 but does not appear to be a permit holder anymore. The Applicant accepts that specific deterrence is of greater relevance to O’Mara, Smith and Lomax than Hall, Kivalu, and Miller.
89. In this case, the contraventions established were generally flagrant in that although the presence of the individual Respondents at the three sites may have been motivated by a desire to investigate safety issues, the Respondents’ conduct and approach in exercising or seeking to exercise their rights was found to be uneven and widely variable, involved communication that lacked precision and consisted of wide sweeping statements regarding work and safety, spoken with an air of authority and confidence, that was confusing and intimidating for the construction workers at the three sites. It should also be pointed out that the conduct of Hall, Smith and Kivalu involved physical or verbal aggression and/or swearing.
90. Moreover, a number of the contraventions related to failure to comply with a reasonable request to observe an occupational health and safety requirement applicable to the site (section 499) or arose from conscious disdain or disregard for the occupier’s particular occupational health and safety requirements for the site (sections 500 and 503), even where those requirements were recognised as being appropriate. That is an alarming situation given that the Respondents were relying on entry rights designed to protect work health and safety.
91. The conduct ultimately amounted to a campaign that lasted over several months and occasioned disruption and interference to workers across the three sites. Specific deterrence is of even greater significance in circumstances of deliberate, calculated and coordinated wrongdoing.
H. SETTING THE APPROPRIATE PENALTY
92. 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 (2005) 228 CLR 357. The following general principles apply:
In accordance with many authorities, including Veen (No.2) and the Non-Indemnification Personal Payment Case at [22], I remind myself that any penalty must be proportionate to the contravening conduct.
I recall also the importance of ensuring that there is no relevant risk of civil double jeopardy,[52] and of the totality principle, which has been outlined in many decisions. For current purposes it is sufficient to note (but not repeat) the Full Court’s comments in Parker v Australian Building and Construction Commissioner, at [289] – [307]. Further, it is helpful and important to recall the earlier comments by the Full Court in McAlary Smith (Buchanan J) at [102], where his Honour referred to the totality principle as a “final check to ensure that a total or aggregate penalty is not, in all the circumstances, excessive…”
[52] See the Applicant’s primary submissions at pars.97 – 100.
In the light of the principles outlined above, next and finally I move to an application of them in the light of the contraventions established.
Loss & Damage: Generally, there is no evidence of any loss or damage having been suffered on the various building sites in question as a result of the contravening conduct. However, having regard to the findings of the Court, the contravening conduct established that there was extended interruption with work (and the management of it) on each of the three sites. The interruptions ranged from ultimately stopping the last stages of a concrete pour, to extended and quite testy engagements between Union officials and management, and to clear flouting of health and safety directions while on site. Properly managed and appropriately informed, in my view, each and every action/conduct by the Union officials involved, which have resulted in the contraventions established, need not have occurred. They could have, and should have, been readily avoided.
Seriousness of contraventions: Also to speak generally, the contraventions involved (a) non-compliance with health and safety directions, (b) non-compliance with long-standing practices regarding right of entry requirements, and (c) improperly representing, and acting upon, authority of Union officials when on a building site. In my view, while not contravening conduct of the most egregious or grave kind, the contraventions here were generally within the mid-range of infractions. They were needless, and should not have occurred. The outcomes sought by the Union officials could, and would, have been achieved had they been properly informed, and reasonably and prudently executed, in accordance with the FW Act and well-known principles outlined over many years by Courts around the country, and in particular by regular and detailed decisions of the Federal Court of Australia. They were not for the reasons given by the Court in the liability judgments. As such, the conduct by the Union officials showed a certain disregard for both proper process and basic information that was otherwise readily available.
As already noted, the contraventions here range from non-compliance with standard procedures regarding entry permits to non-compliance with reasonable requests on a building site, and improper conduct on a site. In my view, the Applicant reasonably submitted, at par.90 of their primary submissions, in relation to certain of the contraventions:
… a number of the contraventions related to failure to comply with a reasonable request to observe an occupational health and safety requirement applicable to the site (section 499) or arose from conscious disdain or disregard for the occupier’s particular occupational health and safety requirements for the site (sections 500 and 503), even where those requirements were recognised as being appropriate. That is an alarming situation given that the Respondents were relying on entry rights designed to protect work health and safety.
Co-operation: There was relatively minimal co-operation with the Applicant by the Union and its officials, with the exception of Mr Kivalu (at a relatively early stage in the proceedings) and Mr Miller (at a relatively late stage of the litigation). Little if any credit can be afforded here.
Contrition: Apart from some acknowledgement in the course of the trial that some conduct at the time, in hindsight, was either ill-advised or could have been handled better, for example as noted by Mr Hall in his evidence, there was no expression of contrition by any of the Respondents for their conduct.
Involvement of Union Officials: There is no doubt that, certainly in the instances of Mr Hall and Mr O’Mara, Union officials of the highest office at a local level were actively, indeed directly, involved in contravening conduct. Other Respondents were relevantly Union “organisers.” According to the latest information available (see Ms Miller’s Affidavit, filed 19th December 2019: pars.19 – 21) Mr O’Mara is listed as the Secretary (he is also a member of the National Executive of the Union), and Mr Smith as the Assistant Secretary, of the local Branch of the Seventh Respondent Union.
The size of the Union: The Affidavits of Ms Read and Ms Miller, noted earlier, both addressed the organisational structure and relevant procedures of the local Branch of the Union. They also addressed things like its financial resources. Among other things, at par.13 of her Affidavit, filed 24th January 2020, Ms Read, deposed:
It is the practice of the Branch to use its Branch funds to meet the costs of litigation in which it is involved and that will apply to the payment of penalties which are imposed on it in the present case. Other branches or parts of the Union do not contribute to such payments.
At pars.14 – 16 of Ms Miller’s Affidavit, filed 19th December 2019, she referred to the Union’s 2019 Branch Report that dealt with the Branch’s finances. I need not detail this information.
As noted above, in the comments by the Full Court in the Children’s Hospital Case at [105], there was brief reference to the relevance (if any) of the size of a corporation. In my view, it is not appropriate in a matter of this kind to be conducting some comparative analysis of the relative financial resources of various Branches of the Seventh Respondent Union.
Previous contraventions: Exhibit BM-5 to Ms Miller’s Affidavit provides a summary of Court and Tribunal decisions in relation to the Seventh Respondent Union. The list is extensive in my view mainly because it concerns litigation against Branches of the Union in other States where, it is fair to say, albeit in general terms, there is a more aggressive stance taken by the Union on building sites. At par.74 of its primary submissions, the Applicant noted, by reference to this Exhibit to Ms Miller’s Affidavit:
The table of contraventions annexed to the Miller Affidavit indicates that the CFMMEU has been found to have contravened industrial legislation in 159 different cases, many involving more than one contravention. Of those 159 cases, 107 of them involved conduct that pre-dated the first contravening conduct found to have occurred in the present case—that is, conduct that occurred prior to 21 August 2013.
From the wide range of examples provided by Ms Miller of the imposition of penalties, I need only note the following for comparative purposes.
Item 3 in the list provided the following basic facts:
Construction, Forestry, Maritime, Mining and Energy Union v ABCC [2019] FCAFC 201
Fairbrother Pty Limited was the site occupier at the Living City Civic Hub Project in Devonport.
On 5 June 2017, Richard Hassett (CFMMEU organiser) contravened s.499 of the FW Act by failing to comply with a reasonable request to comply with an OHS requirement that applied to the Site. Mr Hassett also contravened s.500 by acting in an improper manner white exercising, or seeking to exercise, rights in accordance with Part 3-4, by: (a) climbing onto a crane while it was in operation; (b) ignoring Fairbrother's reasonable requests to get off the crane; and (c) using insulting language and engaging in abusive behaviour.
On 6 June 2017, Mr Hassett again contravened s.500 by acting m an improper manner by climbing onto a crane while it was in operation, causing crane work to stop.
Penalties and Contraventions: On appeal, the Full Court set aside penalties in respect of the contraventions of s.499 ($8,000 & $40,000). Total penalties reduced from $137,000 to $89,000.
Item 23 in the list provided the following basic facts:
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Parliament Square Case) (No 2) [2018] FCA 1201
The conduct occurred at the Parliament Square construction project in Hobart On 28 July 2015, CFMMEU official Richard Hassett acted in an improper manner by failing to provide notice of his entry, failing to enter on a day specified 1n such a notice, holding d1scuss1ons with workers outside of mealtimes or other break times. and using foul language.
On 21 October 2015, Hassett acted in an improper manner by failing to provide notice of his entry, failing to enter on a day specified in such a notice, holding discussions with workers outside of mealtimes or other break times, and dismissively ignoring advice from management that he should not be on site.
Hassett also acted improperly on 5 November 2015 by failing to provide notice of his entry, failing to produce an entry notice when asked, refusing to leave the site when requested, using offensive language, and by directing unnecessary and gratuitous abuse to site management
Penalties and Contraventions:
CFMEU: penalties totalling $170,000 for 4 contraventions of s.500 – FW ACT
Richard Hassett: penalties totalling $18,000 for 4 contraventions of s.500 – FW Act
Item 25 in the list provided the following basic facts:
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Bendigo Theatre Case) (No 2) [2018] FCA 1211
The conduct occurred at the Bendigo Theatre construction project CFMEU official Nigel Davies contravened s.500 on 22 July 2014 by failing to provide entry notice, refusing to produce his permit, directing foul and abusive language towards a representative of the occupier and refusing to comply with a lawful direction to leave the site. The court found that it was also improper for Davies to tell a representative of the occupier to 'go away' and to place his mobile phone close to his face.
Davies also contravened ss.497 and 500 on 29 July 2014 by refusing to produce his permit, continuing to exercise rights after refusing to produce his permit, and refusing to leave the site.
CFMEU official Alex Tadic contravened s.500 on 1 August 2014 by acting in a loud, rude and aggressive and abusive manner, and by issuing profane and indecent language towards the representative of the occupier.
Penalties and Contraventions:
CFMMEU: penalties totalling $245,000 for 6 contraventions of s.500 – FW Act
Nigel Davies: penalties totalling $19,000 for 5 contraventions of s.500 and 1 contravention of s497 – FW Act
Alex Tadic: $7,500 for 1 contravention of s.500 – FW Act
Item 28 in the list provided the following basic facts:
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117
The proceeding concerned events at Josephs Road, Footscray, in Melbourne, where part of the Victorian Government's Regional Rail Link Project was under construction. John Holland and Abigroup Contractors were undertaking construction. The CFMEU wanted a delegate on the site. The companies refused on the basis that there was already a delegate on site (though from another union).
On 16 May 2013, CFMEU official Joseph Myles organised approximately 20 persons with approximately 9 vehicles to blockade vehicular access to the site, interrupting a concrete pour. The site was blocked until the concrete in the trucks waiting to enter the site was no longer fit to be used. The concrete that had been poured before the blockade had to subsequently be removed. Prior to leaving, Myles issued a threat to those managing the site that they would be back the next day to repeat the exercise.
On 17 May 2013, Mvles returned to the site though not in company. He spoke to a senior manager and issued another threat to the effect that there would be a CFMEU delegate on the site of there would be “war”.
Penalties and Contraventions: Penalties increase by the Full Court as follows:
CFMMEU: penalties totalling $111,000 for 3 contraventions of s.348 - FW Act ($71,000 for conduct on 16 May (2 x s. 348) and $40,000 for conduct on 17 May (1 x s.348))
Joseph Myles: penalties totalling $19,500 for 3 contraventions of s.348 – FW Act ($12,500 for conduct on 16 May (2 x s348) and $7,000 for conduct on 17 May (1 x s.348)
Note: personal payment order made in respect of Myles
Item 56 in the list provided the following basic facts:
Director of the Fair Work Building Industry Inspectorate v O’Connor [2016] FCA 415
On 31 March 2014, CFMEU official James O'Connor entered the Adelaide High School construction site seeking to exercise rights under Part 3-4 of the FW Act. While on site. he acted in an improper manner by: entering without providing notice and despite being refused entry; remaining on the site for 20 minutes; and holding discussions with employees in places not agreed with the occupier.
On 5 May 2014, CFMEU officials Michael McDermott, Luke Stephenson and Derek Christopher entered the Art Apartments construction site in Adelaide. McDermott and Stephenson, while seeking to exercise rights under Part 3-4 of the FW Act, acted in an improper manner by: entering without providing notice and despite being refused entry; failing to produce an entry notice or permit upon request; and holding discussions with employees in places not agreed with the occupier. Christopher, who did not hold an entry permit, was involved in the contraventions of McDermott and Stephenson
On 6 May 2014, CFMEU officials Michael McDermott and Derek Christopher entered the Ibis Hotel construction site in Adelaide. McDermott, while seeking to exercise rights under Part 3-4, acted in an improper manner by: entering the site with Christopher without providing notice and having been refused entry; remaining on site for 45 minutes despite being directed to leave; and holding discussions with employees in places not agreed with the occupier. Christopher, who did not hold an entry permit, was involved in McDermott's contravention.
On 28 April 2014, CFMEU officials David Bolton and Michael Huddy entered the Minda Homes construction site in South Australia seeking to exercise rights under Part 3-4 of the FW Act. While on site, Bolton and Huddy acted in an improper manner by: seeking to enter pursuant to a false statement "We don't need a notice"; entering without providing notice and despite being refused entry; holding discussions with employees in places not agreed with the occupier; ignoring a request by the occupier to leave and remaining for 30 minutes and; failing to produce an entry notice or entry permit upon request.
On 5 May 2014, CFMEU officials Michael McDermott. Luke Stephenson and Derek Christopher entered the Quest South construction site in Adelaide. McDermott and Stephenson. while seeking to exercise rights under Part 3-4 of the FW Act, acted in an improper manner by: entering and remaining on site with an unidentified CFMEU official without providing notice and despite being refused entry; failing to produce an entry notice or permit upon request remaining on site while a further 4 CFMEU officials arrived with the common purpose of gaining access; and holding discussions with employees on the site.
Christopher used his elbow and shoulder to push a representative of the occupier out of a doorway. Stephenson was present and remained on site after the 'Christopher incident'. Christopher, who did not hold an entry permit, was involved in the contraventions of McDermott and Stephenson.
Stephenson and Christopher took action with intent to coerce the head contractor to allow the CFMEU officials into the lunch shed to talk to the workers on the site
Contraventions and Penalties:
$30,000 comprising:
CFMEU: $27,000 for 1 contravention of s.500 – FW Act
James O’Connor: $2,500 for 1 contravention of s.500 – FW Act
$94,250 comprising:
CFMEU: $85,000 for 3 contraventions of s.500 – FW Act
Michael McDermott: $3,750 for 1 contravention of s.500 - FW Act
Luke Stephenson: $2,500 for 1 contravention of s.500 - FW Act
Derek Christopher: $3,000 for 1 contravention of s.500 - FW Act.
$66,750 comprising:
CFMEU: $60,000 for 2 contraventions of s.500 – FW Act
Michael McDermott: $3,750 for 1 contravention of s.500 - FW Act
Derek Christopher: $3,000 for 1 contravention of s.500 - FW Act.
$51,500 comprising:
CFMEU: $48, 00 for 2 contraventions of s.500 – FW Act
David Bolton: $2,000 for 1 contravention of s.500 – FW Act
Michael Huddy: $1,500 for 1 contravention of s.500 – FW Act
$146,250 comprising:
CFMEU: $131,500 for 3 contraventions of s.500 of the FW Act and 2 contraventions of s.348 - FW Act
Michael McDermott: $3,750 for 1 contravention of s 500 - FW Act
Luke Stephenson: $4,500 for 1 contravention of s 500 and 1 contravention of s 348 - FW Act
Derek Christopher: $6,500 for 1 contravention of s 500 and 1 contravention of s 348 - FW Act
Finally, item 71 in the list provided the following basic facts:
Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432
CFMEU officials exercising rights of entry on various constructions sites in Adelaide (the Leabrook site on 31 March 2014; the Somerton Park site on 31 March 2014, the Somerton Park site on 7 April 2014; the Grenfell Street site on 7 May 2014).
Officials contravened s.500 of the Fair Work Act by engaging in conduct including failing to give notice, failing to comply with reasonable directions including not to enter the site and to leave the site, and CFMEU official Perkovic engaging in conduct on the Grenfell Street site whereby he engaged in a verbal tirade against a FWBC Inspector.
In response to a request to produce their entry permits and an entry notice, Mr McDermott and Mr Perkovic said words to the effect of "Fuck off', "Fuck yourself'.
At one point, Mr Perkovic's stance and manner was provocative, bullying and intimidating during an unpleasant incident involving him and a Mr Flynn
The conduct of each personal respondent constituting each contravention was taken to be conduct of the CFMEU.
Penalties and Contraventions: $205,100 comprising:
$4,000 against Stephenson for 2 contraventions of s.500 of the FW Act
$1,000 against Smart for 1 contravention of s.500 of the FW Act
$3,800 against Bolton for 2 contraventions of s.500 of the FW Act
$1,100 against Vitler for 1 contravention of s.500 of the FW Act
$800 against Huddy for 1 contravention of s.500 of the FW Act
$4,000 against McDermott for 1 contravention of s.500 of the FW Act
$800 against Jarrett for 1 contravention of s.500 of the FW Act
$1,100 against Sloane for 1 contravention of s.500 of the FW Act
$3,500 against Pitt for 1 contravention of s.500 of the FW Act
$5,000 against Perkov1c for 1 contravention of s.500 of the FW Act
$180,000 against the CFMEU for the officials' contraventions or s.500
In Cahill v Construction, Forestry, Mining and Energy Union (No.4), after referring to various earlier authorities, Kenny J said, at [65]:[53]
In neither of these passages was the Court laying down a hard and fast rule that prior contraventions of another autonomous division or branch of the Union should never be taken into account. Whether or not prior contraventions will be relevant and, if relevant, accorded any and what weight will necessarily depend on the nature and circumstances, as disclosed in the record of the prior contraventions.
[53] Cahill v Construction, Forestry, Mining and Energy Union (No.4) (2009) 189 IR 304. The appeal against this decision was dismissed Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461. See Kenny J’s further comments in relation to “prior contraventions” at [66] – [69].
In the slightly later Full Court decision in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd, the Court said, at [143]:[54]
A past contravention of a registered organisation arising from the conduct of an official assigned to a particular Division or Branch of that organisation is just that. That is so also even if that conduct giving rise to that past contravention occurred in a State or Territory other than that giving rise to the instant case which falls for assessment of penalty. This remains the position in law even if, for its own reasons, a registered organisation chooses to administer itself in a way which affords substantial autonomy to a particular Division or Branch. That, too, is a fact relevant to take into account in deciding whether or in what amount a penalty ought to be imposed. Further, it may not necessarily be a factor which tells in mitigation. That a Division or Branch has been allowed to operate without adequate supervision may instead be a factor of aggravation in relation to the penalty to impose on the organisation.
[54] Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88.
In my view, in the light of the comments above by Kenny J in Cahill and by the Full Court in John Holland, the weight of prior contraventions of the Union for the purposes of this matter are, in my view, of relatively lower import.
The Applicant submitted, at par.89, with which I also agree, that “the contraventions were generally flagrant.” Some of the contraventions involved physical or verbal aggression.
Regrettably, there has been no expression of contrition by the Union for the conduct of its officials. In the course of his evidence, Mr Hall acknowledged that he should have acted more appropriately on some occasions, which I took to be a proper expression of regret or contrition.
I generally accept the Respondents’ submission (par.141) that the lack of evidence of loss or damage should be taken to lessen the gravity of the contraventions.
In determining the penalties listed below, I accept the submissions by the Applicant, at pars.97 – 100 of its primary submissions, with respect to the operation of s.556 of the FW Act regarding “course of conduct” and “civil double jeopardy” (and of course, the citations there included).
I need not, and will not, repeat the earlier outline of principle regarding the totality principle. That outline should be taken to apply, mutatis mutandis, to the imposition of penalties upon the Seventh Respondent Union.
In my view, it is reasonable for the Court to note that the Union is, with little dissent I suggest, one of, if not the most forthright and belligerent of Unions in the building industry. It has been around a long time. Its long experience and that of its officials would be difficult to challenge. This only makes it all the more perplexing how regularly around the country it somehow, but consistently misguidedly and ill-informed, thinks that “might is right”, especially when so many warnings and cautions have been issued by Courts.
In all of the circumstances, in my view the penalties for the Seventh Respondent Union should not be (as proposed by the Applicant) at the high end of the permissible range. Nor should they be within the 30 – 40% range proposed by the Respondents. Having regard in particular to the matters outlined above, the penalties to be imposed upon the Seventh Respondent Union, which in my view are proportionate in all the circumstances, should be in the following amounts:
a)Hall’s contravention of section 503(1) on 30 October 2013 at the Nexus Site (by virtue of section 793): $25,000
b)Hall’s contravention of section 503(1) on 20 January 2014 at the Stromlo Site (by virtue of section 793): $25,000
c)Kivalu’s contravention of section 503(1) on 28 January 2014 at the Harrison Site (by virtue of section 550): $20,000
d)Kivalu’s contravention of section 499 on 11 March 2014 at the Harrison Site (by virtue of section 550): $20,000
e)O’Mara’s contravention of section 503(1) on 11 March 2014 at the Harrison Site (by virtue of section 793): $28,000
f)Miller’s contravention of section 494 on 11 March 2014 at the Harrison Site (by virtue of section 550): $20,000.
These amounts result in a total penalty to the Union of $138,000.
Pursuant to s.546(3)(a) of the FW Act, the personal and corporate penalties are to be paid to the Commonwealth.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Judge WJ Neville
Associate:
Date: 17th September 2020
ANNEXURE 1
| Respondent | No. | Description | ARs % range | ARs $ range | ABCC % range | ABCC $ range | Court’s Determination |
| Hall | 1 | s.497 on 21 August 2013 at Nexus Site | 20-30% | $2,040 - $3,060 | 70-100% | $7,140 - $10,200 | $4,500 |
| 2 | s.500 on 21 October 2013 at Nexus Site | 20-30% | $2,040 - $3,060 | 70-100% | $7,140 -$10,200 | $6,500 | |
| 3 | s.503(1) on 30 October 2013 at the Nexus Site | 20-30% | $2,040 - $3,060 | 70-100% | $7,140 - $10,200 | $6,500 | |
| 4 | s.497 on 20 January 2014 at the Stromlo Site | 20-30% | $2,040 - $3,060 | 70-100% | $7,140 - $10,200 | $4,500 | |
| 5-7 | ss.499, 500 and 503(1) on 20 January 2014 at the Stromlo Site | 20-30% | $2,040 - $3,060 | 70-100% | $7,140 - $10,200 | $5,000 | |
| Totals | Total of ARs $ range = $10,200 - $15,300 | Total of ABCC $ range = $35,700 - $51,000 | Total of Court’s Determination = $27,000 | ||||
| Kivalu | 8 | s.500 on 21 October 2013 at the Nexus Site | The Active Respondents make no submission in respect of these contraventions. | 30-70% | $3,060 - $7,140 | $2,500 | |
| 9 | s.500 on 28 January 2014 at the Harrison Site | 30-70% | $3,060 - $7,140 | $2,500 | |||
| 10 | s.503(1) on 28 January 2014 at the Harrison Site | 20-30% | $2,040 - $3,060 | 30-70% | $3,060 - $7,140 | $4,000 | |
| 11 | s.499 on 11 March 2014 at the Harrison Site | 20-30% | $2,040 - $3,060 | 30-70% | $3,060 - $7,140 | $4,000 | |
| Totals | Total of Court’s Determination = $13,000 | ||||||
| Lomax | 12 | s.500 on 21 October 2013 at the Nexus Site by aiding and abetting Hall’s contravention of s 500 | 10-20% | $1,020 - $2,040 | 20-30% | $2,040 - $3,060 | $2,000 |
| Totals | Total of ARs $ range = $1,020 - $2,040 | Total of ABCC $ range = $2,040 - $3,060 | Total of Court’s Determination = $2,000 | ||||
| O’Mara | 13 | s.497 on 21 August 2013 at the Nexus Site | 30-40% | $3,060 - $4,080 | 70-100% | $7,140 – $10,200 | $4,500 |
| 14 and 15 | ss.499 and 503(1) on 11 March 2014 at the Harrison Site | 30-40% | $3,060 - $4,080 | 70-100% | $7,140 – $10,200 | $7,500 | |
| Totals | Total of ARs $ range = $6,120 - $8,160 | Total of ABCC $ range = $14,280 - $20,400 | Total of Court’s Determination= 12,000 | ||||
| Smith | 16 | s.499 on 30 October 2013 at the Nexus Site | 30-40% $3,060 - $4,080. Note: the ARs submit that these contraventions should be treated as a course of conduct. This is disputed by the ABCC. | 70-100% | $7,140 - $10,200 | $6,000 | |
| 17 | s.500 on 30 October 2013 at the Nexus Site | 70-100% | $7,140 - $10,200 | ||||
| Total of ARs $ range = $3,060 - $4,080 | Total of ABCC $ range = $14,280 - $20,400 | Total of Court’s Determination= 6,000 | |||||
| Miller | 18 | s.494 on 11 March 2014 at the Harrison Site | 10-20% | $1,020 - $2,040 | 30-70% | $3,060 - $7,140 | $3,500 |
| Totals | Total of ARs $ range = $1,020 - $2,040 | Total of ABCC $ range = $3,060 - $7,140 | Total of Court’s Determination= 3,500 | ||||
| The Union | 19 | Hall’s contravention of s.503(1) on 30 October 2013 at the Nexus Site | 30-40% | $15,300 - $20,400 | 70-100% | $35,700 - $51,000 | $25,000 |
| 20 | Hall’s contravention of s.503(1) on 20 January 2014 at the Stromlo Site | 30-40% | $15,300 - $20,400 | 70-100% | $35,700 - $51,000 | $25,000 | |
| 21 | Kivalu’s contravention of s.503(1) on 28 January 2014 at the Harrison Site | 30-40% | $15,300 - $20,400 | 70-100% | $35,700 - $51,000 | $20,000 | |
| 22 | Kivalu’s contravention of s 499 on 11 March 2014 at the Harrison Site | 30-40% | $15,300 - $20,400 | 70-100% | $35,700 - $51,000 | $20,000 | |
| 23 | O’Mara’s contravention of s 503(1) on 11 March 2014 at the Harrison Site | 30-40% | $15,300 - $20,400 | 70-100% | $35,700 - $51,000 | $28,000 | |
| 24 | Miller’s contravention of s 494 on 11 March 2014 at the Harrison Site | 30-40% | $15,300 - $20,400 | 70-100% | $35,700 - $51,000 | $20,000 | |
| Totals | Total of ARs $ range = $91,800 - $122,400 | Total of ABCC $ range = $214,200 - $306,000 | Total of Court’s Determination= 138,000 | ||||
| Total for the ARs (i.e. excluding Kivalu) | Total of ARs $ range = $113,220 - $154,020 | Total of ABCC $ range = $283,560 - $408,000 | Total of Court’s Determination = 188,500 | ||||
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