Construction, Forestry, Maritime, Mining and Energy Union and Ors v Hanssen Pty Ltd and Ors (No.2)

[2019] FCCA 1667

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION & ORS v HANSSEN PTY LTD & ORS (No.2) [2019] FCCA 1667

Catchwords:
INDUSTRIAL LAW – Application for penalties for contravention of the Fair Work Act 2009 – need for specific and general deterrence – payment of penalties to be paid to moving party.

Legislation:

Fair Work Act 2009 (Cth), ss.501, 502, 512, 580

First Applicant: Construction, Forestry, Maritime, Mining & Energy Union

Second Applicant: ROBERT ANTHONY BENKESSER

Third Applicant: PHILIP SHANE KENNEDY

Fourth Applicant:  TROY KINGSLEY SMART

First Respondent: Hanssen Pty Ltd

Second Respondent GERARDUS PETER HANSSEN

Third Respondent: denby jackson

File Number: PEG 391 of 2017

Judgment of: Judge Street

Hearing date: 17 June 2019

Date of Last Submission: 17 June 2019

Delivered at: Perth

Delivered on: 17 June 2019

REPRESENTATION

Solicitors for the Applicants: Mr D Scaife
Eureka Lawyers

Counsel for the Respondents: Mr J Raftos

Solicitors for the Respondents: Hotchkin Hanly Lawyers

ORDERS

1. (1)    By reason of the contraventions of the provisions of the Fair Work Act 2009 (Cth) by the first respondent, the Court orders the first respondent to pay a penalty in the sum of $54,000.00 to the first applicant.

2. (2)    By reason of contraventions of the provisions of the Fair Work Act 2009 (Cth) by the second respondent, the Court orders the second respondent to pay a penalty under s 546 of the Fair Work Act 2009 (Cth) in the sum of $8,000.00 to the first applicant.

3. (3)    By reason of contraventions of the provisions of the Fair Work Act 2009 (Cth) by the third respondent, the Court orders the third respondent to pay a penalty under s 546 of the Fair Work Act 2009 (Cth) in the sum of $5,000.00 to the first applicant.

4. (4)    The said penalties be paid within 28 days by the respective respondents to the first applicant.

(1)    FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Perth

PEG 391 of 2017

Construction, Forestry, Maritime, Mining & Energy Union

First Applicant

ROBERT ANTHONY BENKESSER

Second Applicant

PHILIP SHANE KENNEDY

Third Applicant

TROY KINGSLEY SMART

Fourth Applicant

And

Hanssen Pty Ltd

First Respondent

GERARDUS PETER HANSSEN

Second Respondent

DENBY JACKSON

Third Respondent

REASONS FOR JUDGMENT

1. 1. This is an application for penalty orders as a result of contraventions in respect of which the Court has made declarations. There were two contraventions by the respective second and third respondents and two contraventions of the first respondent in relation to ss 501 and 502 of the Fair Work Act2009 (Cth) (“the Act”).

2. 2. The provisions of Part 3-4 of the Act in relation to the protection of employees and the objects in s 580 of the Act, relevantly refer not just to discussions with potential members but also to investigate suspected contraventions of both the Act, Fair Work instruments in States and Territories, and Occupational Health and Safety laws.

3. 3.  The maximum penalty that could be imposed by the Court on the individuals is $10,800 in respect of each contravention, making a combined maximum of $21,600 in respect of the second and third respondents. The maximum penalty in respect of the first respondent, being the corporate entity, is $54,000 in respect of each contravention. The applicants submitted that the maximum penalty in respect of the four contraventions would be $216,000.

4. 4.  The Court finds that the contraventions by the first respondent arise out of the same course of conduct by the second respondent and the same course of conduct by the third respondent and that the maximum penalty in those circumstances is $108,000. The Court takes into account the factors identified by the applicants and the cases that were referred to in respect of the factors to be weighed.

5. 5.  In the circumstances of the present case, the Court is satisfied that there is a need for specific deterrent as well as a general deterrent. The evidence before the Court was that at this particular site there had been a fatality in respect of an employee prior to the applicants taking steps to seek to investigate the photographs that gave rise to the contraventions in the present case. In circumstances where there had been a fatality at this particular site, the respondents should have had an even greater height of sensitivity and need to ensure compliance with legal obligations and, in particular, in respect of safety standards. The Court regard that background as an aggravating factor in the context of the issue of penalty. There is no issue but that the conduct was deliberate.

6. 6.  The Court does regard the evidence given by the second respondent that had he been informed that there was being exercised a right of entry by permit holders under the relevant part of the Federal legislation and State legislation, and provided with the photographs, that he would have permitted entry notwithstanding his entrenched views to the contrary as relevant to the issue of penalty. The second respondent was erroneously seeking to protect his employees from which what he believed to be thuggery. That was a misguided conception and did not permit Mr Hanssen to take steps that did not accord with complying with the requirements of the law and permitting those with a lawful right of entry to seek to exercise the same.

7. 7. The fact that there may have been earlier union protests explains the motivation behind the second respondent’s position, but the Court accepts the submission of the applicants that it goes not excuse the non-compliance that occurred. The ability of those holding a permit under s 512 of the Act and a State permit to take steps to ensure compliance with occupational health and safety legislation is of considerable importance to the community, and in particular, employees.

8. 8.  I accept that the respondents have not engaged in any other contravention of the Act. This is a case where senior management was involved in the contraventions. The Court must ensure that the relevant penalty is proportionate, taking into account the need for general and specific deterrence.

9. 9.  In the circumstances of the present case, the Court accepts the submissions of the applicants that the appropriate penalty for the third respondent, Mr Jackson, taking into account the principles referred to above and each of the factors impacting on penalty, is the amount of $5000.00.

10. 10.    In relation to the second respondent, Mr Hanssen, the Court accepts the submissions of the applicants that the appropriate amount, taking into account all the factors referred to above and the circumstances of this case and indeed the need for a general and specific deterrent, is an amount of $8000.00.

11. 11.    In relation to the issue of the first respondent, being the corporate entity, the Court finds that the maximum penalty the Court could impose, given that I regard the contraventions as arising from the same course of conduct of the second respondent and the same course of conduct by the third respondent, to be an amount of $108,000.

12. 12.    The Court does regard the contraventions for the reasons already given as being of considerable seriousness and significance particularly given the fatality that occurred and that these steps of attempted entry were to assist in preventing any future or similar tragedy. The second respondent was blinded by his hatred of the applicants in preventing the taking of logical, rational and reasonable steps of entry and inspection that would have protected and assisted his employees. That was not to their benefit.

13. 13.    There is a need to ensure compliance with these important provisions of the Act. It was submitted on behalf of the respondents that the appropriate amount should be in the order of $32,000.00, taking into account that the first respondent has not engaged in any earlier contravention. The Court finds, taking into account all of the above factors, that the appropriate penalty to impose on the first respondent, is an amount in the sum of $54,000.00.

14. 14.    There was issue as to who the penalty should be paid. The provisions of the Act permits the penalty to be paid relevantly to the first applicant. The taking of steps to ensure compliance with important safety requirements under the Act has a broad public interest and importance and there is no reason not to make the order as sought by the applicants for the payment of the penalties to the first applicant.

15. 15.    Whilst the Court can order the payment of the penalties to the Commonwealth, I accept the applicants’ proposition that it is appropriate in the ordinary course to permit the moving party seeking to take steps to ensure compliance with this important legislation to have paid the penalties. The Court also takes into account that payment should be made to the first applicant in this case because this is otherwise a no cost jurisdiction.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  19 July 2019