FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40
Appeal from: ABCC v CFMMEU (No 3) (The Botany Cranes Case) [2021] FCA 363
ABCC v CFMMEU (The Botany Cranes Case) (No 4) [2021] FCA 525
File number: NSD 579 of 2021 Judgment of: BROMBERG, MOSHINSKY AND BROMWICH JJ Date of judgment: 15 March 2023 Catchwords: INDUSTRIAL LAW – pecuniary penalties – where the ABCC brought proceedings against one union respondent and several individual respondents for contravention of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) – where the case was narrowed following mediation – where the union and the remaining respondents (four officials of the union) admitted contravening provisions of the Act in relation to (among other things) a picket – whether, in circumstances where the four officials engaged in a single unlawful picket, and their conduct was taken to have been engaged in also by the union, the union committed four contraventions of each relevant provision or only one contravention of each relevant provision – whether the officials and the union were liable for more than one pecuniary penalty for the contraventions of ss 47 and 52 of the Act or only one pecuniary penalty – whether the primary judge imposed penalties based on intent to coerce as distinct from intent to apply undue pressure – appeal allowed in part Legislation: Building and Construction Industry Improvement Act 2005 (Cth), ss 38, 44, 49
Building and Construction Industry (Improving Productivity) Act 2016 (Cth), ss 5, 38, 47, 52, 54, 81, 83, 84, 91, 92, 94, 95
Conciliation and Arbitration Act 1904 (Cth), ss 44, 45
Evidence Act 1995 (Cth), s 191
Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)
Fair Work Act 2009 (Cth), ss 348, 355, 500, 546, 556, 557, 793
Cases cited: Ah Toy v Registrar of Companies for the Northern Territory (1985) 10 FCR 280
Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301
Australian Building and Construction Commissioner v Australian Workers’ Union [2021] FCA 861; 308 IR 195
Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070; 299 IR 231
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68
Australian Building and Construction Commissioner v Hall (2018) FCAFC 83; 216 FCR 347
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 399 ALR 599
Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382; 279 ALR 609
Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25
Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15
Broome v Director of Public Prosecutions [1974] AC 587
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner(The Bay Street Appeal) [2020] FCAFC 192; 282 FCR 1
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201; 272 FCR 290
Construction, Forestry, Mining and Energy Union v De Martin & Gasparini (No 2) [2017] FCA 1046
Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; 91 FCR 463
Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; 241 FCR 338
Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; 263 CLR 551
John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; 174 FCR 526
Optus Singtel Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249
Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 270 FCR 39
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336
Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760
Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65; 185 FCR 308
Trade Practices Commission v ICI Australia Operations Pty Ltd (1991) 105 ALR 115
Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40
Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; 284 FCR 24
Woodside Burrup Pty Ltd v Construction, Forestry, Mining and Energy Union (2011) 220 FCR 551
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 240 Date of last submissions: 2 March 2023 Date of hearing: 1 and 2 August 2022 Counsel for the Appellants: Mr H Borenstein KC with Mr P Boncardo Solicitor for the Appellants: Taylor & Scott Lawyers Counsel for the Respondent: Mr MS White SC with Mr M Seck Solicitor for the Respondent: Herbert Smith Freehills ORDERS
NSD 579 of 2021 BETWEEN: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Appellant
ROBERT KERA
Second Appellant
MICHAEL GREENFIELD (and others named in the Schedule)
Third Appellant
AND: FAIR WORK OMBUDSMAN
Respondent
ORDER MADE BY:
BROMBERG, MOSHINSKY AND BROMWICH JJ
DATE OF ORDER:
15 MARCH 2023
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Paragraphs 15, 16(a), 16(b), 16(d), 17, 18, 19(a), 19(c), 19(d), 20, 21, 22 and 23 of the orders made by the primary judge on 19 May 2021 be set aside and in lieu thereof it be ordered that:
(a)within 28 days of these orders, the First Appellant (CFMMEU) pay to the Commonwealth of Australia a pecuniary penalty of:
(i)$190,000 for its contravention of s 47(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) on 25 January 2019; and
(ii)$150,000 for its contravention of s 54 of the BCIIP Act on 31 January 2019 and 1 February 2019.
(b)within 90 days of these orders, the Second Appellant (Mr Kera) pay to the Commonwealth of Australia a pecuniary penalty of $35,000 for his contravention of s 47(1) of the BCIIP Act on 25 January 2019.
(c)within 90 days of these orders, the Third Appellant (Mr Michael Greenfield) pay to the Commonwealth of Australia a pecuniary penalty of:
(i)$25,000 for his contravention of s 47(1) of the BCIIP Act on 25 January 2019; and
(ii)$18,000 for his contravention of s 54 of the BCIIP Act on 31 January 2019 and 1 February 2019.
(d)within 90 days of these orders, the Fourth Appellant (Ms Mallia) pay to the Commonwealth of Australia a pecuniary penalty of $15,000 for her contravention of s 47(1) of the BCIIP Act on 25 January 2019.
(e)within 90 days of these orders, the Fifth Appellant (Mr Byrnes) pay to the Commonwealth of Australia a pecuniary penalty of $3,500 for his contravention of s 47(1) of the BCIIP Act on 25 January 2019.
(f)each of the pecuniary penalties required to be paid by Mr Kera, Mr Michael Greenfield and Ms Mallia by these orders, shall be paid by that person personally in that he or she shall not, whether before or after the payment of the penalty:
(i)seek to have or encourage the CFMMEU in any way whatsoever, directly or indirectly, to pay him or her or for his or her financial benefit in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part; and
(ii)accept or receive from the CFMMEU in any way whatsoever, directly or indirectly, any money or financial benefit referable to the payment of the penalties, whether in whole or in part.
3.Within seven days of these orders, each party file and serve a written submission (of no more than three pages) on costs.
4.Within 14 days of these orders, each party file and serve any responding written submission (of no more than two pages) on costs.
5.Subject to further order, the issue of costs be dealt with on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
Introduction
This is an appeal by one union respondent and four individual respondents from orders made by a Judge of this Court imposing penalties for contraventions of ss 47, 52 and 54 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the Act). The contraventions involved or related to:
(a)an unlawful picket and coercive action on 25 January 2019 (in contravention of ss 47 and 52);
(b)threatening to organise or take action with intent to coerce on 30 January 2019 (in contravention of s 52); and
(c)organising or taking of action with intent to apply undue pressure over a two-day period from 31 January 2019 to 1 February 2019 (in contravention of s 54).
The declarations of contravention made by the primary judge in relation to those three events were agreed and are not the subject of this appeal. The appeal is confined to the penalties imposed and a related order that the union not indemnify one of the individual respondents.
The original applicant and the original respondent to this appeal was the Australian Building and Construction Commissioner. The Fair Work Ombudsman was substituted as the respondent to the appeal consequent upon the abolition of the Australian Building and Construction Commission by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) with effect from 7 December 2022, after the hearing of the appeal. It is convenient to continue to refer to the respondent as the Commissioner. The first respondent below, now the first appellant, is the Construction, Forestry, Maritime, Mining and Energy Union (the Union or the CFMMEU). The remaining four respondents below, now the second to fifth appellants, are all Union members and officials – three are employees and office holders, and one is a delegate of the Union.
The unlawful conduct admitted to have taken place was directed against Griffiths Cranes Pty Ltd, trading as Botany Cranes, on 25 January 2019, 30 January 2019, and 31 January 2019 to 1 February 2019. Botany Cranes is a supplier of mobile cranes and mobile crane hire services in New South Wales for residential and commercial construction sites. During January and February 2019, it had contracts with its customers to provide mobile cranes.
Botany Cranes had premises, including a yard, in Hale Street, Botany in Sydney where it conducted its operations. This included storing, servicing and maintaining mobile cranes and doing other building-related work. Botany Cranes’s employees received information about who was to take mobile cranes from the premises for each day’s work on construction sites. The ambit of the contraventions admitted to was arrived at following mediation which resulted in the number of respondents, contraventions alleged and declarations sought being significantly reduced.
The original case was brought against the Union and 12 officials, but was discontinued against eight of those officials. The number of contraventions alleged went from 80 to 20. The remaining four officials against whom the case was maintained and who bring this appeal along with the Union are:
(a)Mr Robert Kera and Mr Michael Greenfield, each employees and members of the Union and assistant secretaries of the New South Wales Divisional Branch of the Union and members of its committee of management; in these reasons, we will refer to “Michael Greenfield” using his first name to distinguish him from Darren Greenfield, who was also one of the original respondents below;
(b)Ms Rita Mallia, an employee and member of the Union and president of the Branch and a member of its committee of management; and
(c)Mr Howard Byrnes, a member of, and agent of, the Union, and its delegate at Botany Cranes, who performed the function of dealing with that company.
The evidence at the penalty hearing before the primary judge was limited to a detailed statement of agreed facts and admissions (the SOAF) and limited affidavit evidence by which certain records were produced. The agreed facts also included three video clips recorded early on 25 January 2019:
(a)video footage taken by a New South Wales Police Force (NSW Police Force) body camera;
(b)a video of Mr Byrnes’s speech to the picketers and some of his use of a megaphone; and
(c)a video of an interview with Mr Byrnes at the site during the picket.
Agreement was reached as to the fact of contraventions having taken place on each day, but not the number of contraventions by the Union by reason of the conduct and state of mind of the four officials attributed to it by ss 94 and 95 of the Act.
The primary judge delivered two sets of reasons for judgment that are relevant for present purposes: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 3) (The Botany Cranes Case) [2021] FCA 363 (the First Reasons); and Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Botany Cranes Case) (No 4) [2021] FCA 525 (the Second Reasons). On 19 May 2021, the primary judge made declarations of contravention and orders in relation to penalty. The primary judge imposed the following penalties on the officials and the Union:
(a)In relation to the contraventions of ss 47 and 52 on 25 January 2019:
(i)penalties totalling $47,500 were imposed on Mr Kera;
(ii)penalties totalling $35,000 were imposed on Michael Greenfield;
(iii)penalties totalling $20,000 were imposed on Ms Mallia;
(iv)penalties totalling $5,000 were imposed on Mr Byrnes; and
(v)a penalty of $500,000 was imposed on the Union.
(b)In relation to the contraventions of s 52 on 30 January 2019:
(i)a penalty of $30,000 was imposed on Michael Greenfield; and
(ii)a penalty of $175,000 was imposed on the Union.
(c)In relation to the contraventions of s 54 on 31 January and 1 February 2019:
(i)a penalty of $35,000 was imposed on Michael Greenfield; and
(ii)a penalty of $175,000 was imposed on the Union.
By their amended notice of appeal, the appellants appeal from paragraphs 15-19 and 23 of the 19 May 2021 orders, being the orders imposing penalties on the appellants (paragraphs 15-19) and an ancillary order relating to the penalty payable by Mr Byrnes (paragraph 23). The appeal raises issues concerning the construction and application of the provisions of the Act concerning the imposition of penalties. In particular, in relation to the contraventions of ss 47 and 52 on 25 January 2019, the appeal raises the following issues:
(a)whether, in circumstances where the four officials engaged in a single unlawful picket in contravention of s 47, and their conduct is taken to have been engaged in also by the Union, the Union committed four contraventions of s 47 (as the primary judge held) or one contravention of s 47;
(b)whether, in circumstances where the four officials took action with intent to coerce in contravention of s 52, and their conduct is taken to have been engaged in also by the Union, the Union committed four contraventions of s 52 (as the primary judge held) or one contravention of s 52;
(c)whether, in relation to the contraventions of ss 47 and 52 that occurred on 25 January 2019, the officials and the Union are liable for more than one pecuniary penalty (as the primary judge held) or only one pecuniary penalty.
For the reasons that follow, we consider that the primary judge erred in his construction and application of these provisions in relation to the contraventions of ss 47 and 52 on 25 January 2019. Accordingly, the penalties imposed by the primary judge in relation to those contraventions need to be set aside.
We also conclude that the primary judge erred in imposing penalties for the contraventions of s 54 of the Act that took place on 31 January to 1 February 2019 on the basis that there was a state of mind tantamount to intention to coerce, as distinct from a state of mind of intending to apply undue pressure. While, conceptually, there can be cases in which both states of mind are established or there is no actual distinction between the two states of mind, on the facts as agreed or proven, Michael Greenfield, and thereby the Union, admitted only to the latter state of mind. His Honour imposed penalties on a basis that went beyond the state of mind that had been agreed to or proven. Accordingly, the penalties for those contraventions also need to be set aside.
The parties accepted that, if and to the extent that the appeal were successful, it would be appropriate for the Full Court to re-exercise the discretion to impose penalties (rather than this aspect being remitted). We have, therefore, re-exercised the discretion to impose penalties in relation to the relevant contraventions.
Background and issues raised on appeal
The period before 25 January 2019
From 2012, an enterprise agreement had covered Botany Cranes, its employees and the Union, with a nominal expiry date of 31 May 2015. In about February 2018, the Union began negotiating with Botany Cranes on behalf of its members who were employees with a view to arriving at terms for a replacement enterprise agreement. The Union provided Botany Cranes with its terms for a proposed enterprise agreement in February 2018. In about July 2018, the Union provided Botany Cranes with a further version of its proposed enterprise agreement (proposed Union EBA). The managing director of Botany Cranes, Mr Damian Griffiths, did not agree to or accept the proposed EBA.
Other relevant employees of Botany Cranes included Ms Rhonda Hodges, operations manager, Mr Paul Hall, a mechanic, and Ms Tara Canin, a receptionist.
In August 2018, Botany Cranes provided a copy of its proposed enterprise agreement to the Union.
Botany Cranes’s employees voted to approve the proposed Union EBA on 23 August 2018. Botany Cranes’s non-acceptance of the proposed Union EBA was one of two industrial issues relevant to aspects of the contravening conduct.
By 24 January 2019, Mr Griffiths had formed the view that Mr Byrnes was providing advance information to the Union about the location of sites at which Botany Cranes’s cranes were being used, thereby assisting the Union to interfere with its business. At about 1.00 pm that day, Mr Griffiths met with Mr Byrnes and told him that someone was tipping off the Union, to which Mr Byrnes responded with words to the effect “Maybe sign the EBA and it will stop”. Later that day, Mr Griffiths, not believing Mr Byrnes’s denial that he was sabotaging the business, terminated his employment with immediate effect. That termination was the second industrial issue relevant to aspects of the contravening conduct.
25 January 2019
After the termination of Mr Byrnes’s employment on 24 January 2019, the Union circulated a text message to all its members, including Botany Cranes’s employees, calling upon them to attend the yard at Hale Street, Botany, to protest against that termination. A picket took place from about 5.30 am, with a group of about 50 members being assembled by about 6.45 am, with some, including Mr Kera, Michael Greenfield and Ms Mallia, wearing Union branded clothing. There was also present some 15 Union flags or banners. Some of the group blocked access to the yard. The group was addressed by each of Mr Kera, Michael Greenfield, Ms Mallia and Mr Byrnes as set out in the SOAF. Mr Kera was identified as being in charge. A number of NSW Police attended from 6.00 am. The bulk of the activity took place before about 9.00 am, but the picket continued with some members of the group until about 4.00 pm.
By the SOAF, Mr Kera, Michael Greenfield, Ms Mallia, Mr Byrnes and the Union admitted that the actions of those individuals, in participating in the activities of the group on 25 January 2019:
(a)constituted engaging in (and in the case of Michael Greenfield, organising) an unlawful picket contrary to s 47 of the Act in that their actions:
(i)had the purpose of preventing or restricting persons from accessing or leaving the Botany Cranes yard;
(ii)prevented Mr Hall and persons driving cranes from leaving the Botany Cranes yard, and restricted persons from accessing or leaving the Botany Cranes yard;
(iii)would reasonably be expected to intimidate persons accessing or leaving the Botany Cranes yard;
(iv)were motivated by the purpose of supporting or advancing claims against Botany Cranes in respect of employment of employees by Botany Cranes; or
(v)were motivated by the purpose of advancing industrial objectives of the Union, namely, the claim to reinstate Mr Byrnes to his employment, and the securing of Botany Cranes’s agreement to the proposed Union EBA;
(b)by reason of ss 94(1)(a) and 95(1)(b) of the Act, was the conduct and actions of the Union, which thereby contravened s 47 of the Act;
(c)constituted the taking of action against Botany Cranes with intent to coerce it to employ Mr Byrnes as a building employee, that was unlawful, and contravened s 52 of the Act;
(d)for the purposes of “coercion” within the meaning of s 52, was unlawful in that it constituted an unlawful picket in contravention of s 47 of the Act; and
(e)by reason of ss 94(1)(a) and 95(1)(b) of the Act, was the conduct and actions of the Union, which thereby contravened s 52 of the Act.
It is convenient at this point to set out the text of ss 47 and 52 of the Act. In these reasons, all provisions of the Act are set out as they stood at the time of the contraventions, which all took place in the period from 25 January 2019 to 1 February 2019. Sections 47 and 52 relevantly provided:
47 Unlawful picketing prohibited
(1)A person must not organise or engage in an unlawful picket.
Note: Grade A civil penalty.
(2)An unlawful picket is action:
(a)that:
(i)has the purpose of preventing or restricting a person from accessing or leaving a building site or an ancillary site; or
(ii)directly prevents or restricts a person accessing or leaving a building site or an ancillary site; or
(iii)would reasonably be expected to intimidate a person accessing or leaving a building site or an ancillary site; and
(b)that:
(i)is motivated for the purpose of supporting or advancing claims against a building industry participant in respect of the employment of employees or the engagement of contractors by the building industry participant; or
(ii)is motivated for the purpose of advancing industrial objectives of a building association; or
(iii)is unlawful (apart from this section).
Note: See also Division 2 of Part 2 of Chapter 6 (reason for action and coercion)
…
52 Coercion relating to allocation of duties etc. to particular person
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) employ, or not employ, a particular person as a building employee; or
…
Note 2: Grade A civil penalty
It is also convenient to set out ss 94(1)(a) and 95(1)(b) of the Act, which provided:
94 Liability of bodies corporate
Conduct of a body corporate
(1)Any conduct engaged in on behalf of a body corporate:
(a)by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b)…
is taken, for the purposes of this Act, to have been engaged in also by the body.
…
95 Actions of building associations
(1)For the purposes of this Act, each of the following is taken to be action of a building association:
(a)…
(b)action taken by an officer or agent of the building association acting in that capacity; …
We note that s 95 has since been repealed by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act.
There was no dispute that each of Mr Kera, Michael Greenfield, Ms Mallia and Mr Byrnes contravened both ss 47(1) and 52(a) on 25 January 2019, making a total of eight contraventions. The Commissioner contended that this translated into eight corresponding contraventions by the Union. The appellants contended that the Union contravened s 47(1) once and contravened s 52(a) once, and further that the Union was liable for only one penalty for those two related contraventions because of the operation of s 83(2) of the Act (set out later in these reasons).
The primary judge acceded to the Commissioner’s argument, imposing penalties as follows in relation to the contraventions on 25 January 2019:
Mr Kera $12,500 for the s 47(1) contravention
$35,000 for the s 52(a) contraventionMichael Greenfield $10,000 for the s 47(1) contravention
$25,000 for the s 52(a) contraventionMs Mallia $5,000 for the s 47(1) contravention
$15,000 for the s 52(a) contraventionMr Byrnes $1,500 for the s 47(1) contravention
$3,500 for the s 52(a) contraventionUnion $500,000 for its eight contraventions by the attributed conduct of the four officers above
Each penalty was payable to the Commonwealth, save that the primary judge ordered that of the $500,000 penalty payable by the Union, $30,000 was to be paid to Botany Cranes, $2,500 to Ms Hodges, and $15,000 to the NSW Police Force (a total of $47,500).
By grounds 1 to 4 of the amended notice of appeal, the Union appeals against the penalties imposed upon it for the contraventions on 25 January 2019, contending that there should have been a finding of one contravention by it of s 47(1) and one contravention by it of s 52(a).
By grounds 6 to 13, all of the appellants appeal against penalties imposed for contraventions of both ss 47(1) and 52(a). The Commissioner relies upon a notice of contention to defend the penalties imposed even if it is found that the primary judge erred.
By ground 21, Ms Mallia appeals against the penalty imposed upon her upon the basis that the primary judge attributed to her the contravening culture of the Union without the evidence necessary to support that conclusion.
30 January 2019
A further picket took place at the Botany Cranes yard on 30 January 2019 from about 5.00 am until about 7.30 am. Again, a group assembled (the number involved is not agreed in the SOAF), including Michael Greenfield. Members of the group, including Michael Greenfield, wore Union branded clothing and again there were some 15 Union flags or banners. A conversation took place between Michael Greenfield and Mr Griffiths about reinstating Mr Byrnes.
At about 6.00 am a further meeting and conversation took place between Mr Kera, Michael Greenfield, Mr Griffiths and Mr Jason Peterson (a dogman and Union member employed by Botany Cranes) about reinstating Mr Byrnes. The burden of the conversation was that the protest would stop if Mr Byrnes was reinstated.
By the SOAF, Michael Greenfield and the Union admitted that:
(a)Michael Greenfield’s conduct on 30 January 2019 constituted threatening to organise or take action against Botany Cranes with intent to coerce it to employ Mr Byrnes as a building employee, that was unlawful, illegitimate or unconscionable, and thereby contravened s 52 of the Act;
(b)for the purposes of “coercion” within the meaning of s 52, the conduct of Michael Greenfield was an unlawful threat to interfere with Botany Cranes’s contractual relations with its employees and contractors, was illegitimate and unconscionable in that it was adverse and prejudicial to Botany Cranes in threatening to prevent its employees from working using its mobile cranes to carry out work on 30 January 2019 and threatened to cause Botany Cranes to lose revenue and profit, and was disproportionate to any legitimate interest the threat supported, and which none of Michael Greenfield or the Union had any entitlement to make or carry out; and
(c)the conduct and actions of Michael Greenfield on 30 January 2019, by reason of ss 94(1)(a) and 95(1)(b) of the Act, was the conduct and actions of the Union, which thereby contravened s 52.
There was no dispute that Michael Greenfield contravened s 52(a) on 30 January 2019, nor that the Union also contravened that provision by reason of his conduct. The primary judge imposed a penalty of $30,000 on Michael Greenfield and a penalty of $175,000 on the Union. No separate appeal is brought against those penalties, save as to the overall cooperation discount referred to below, via grounds 25 to 27.
31 January 2019 and 1 February 2019
At 6.00 am on 31 January 2019, and at about 6.55 am on 1 February 2019, Mr Kera and Michael Greenfield met with Botany Cranes employees outside the yard gate. Michael Greenfield had a conversation with Mr Griffiths on both those days directed to getting Botany Cranes to accept the proposed Union EBA, making threats if that did not happen on the first of those days and promising the end of Union action if that did happen on the second of those days.
On 12 February 2019, Mr Griffiths signed the proposed Union EBA on behalf of Botany Cranes.
By the SOAF, Michael Greenfield and the Union admitted that:
(a)the conduct of Michael Greenfield on 31 January 2019 and 1 February 2019 constituted the organising or taking of action against Botany Cranes, with intent to apply undue pressure to Botany Cranes to agree to make or approve a building enterprise agreement, that was unlawful, illegitimate or unconscionable, and contravened s 54(1) of the Act;
(b)the conduct and actions of Michael Greenfield on 31 January 2019 and 1 February 2019, by reason of ss 94(1)(a) and 95(1)(b) of the Act, was the conduct and actions of the Union, which thereby contravened s 54(1).
Section 54 of the Act relevantly provided:
54Coercion of persons to make, vary, terminate etc. enterprise agreements etc.
(1)A person must not:
(a) organise or take, or threaten to organise or take, any action; or
(b) refrain, or threaten to refrain, from taking any action;
with intent to coerce another person, or with intent to apply undue pressure to another person, to agree, or not to agree:
(c) to make, vary or terminate a building enterprise agreement; or
(d) to approve any of the things mentioned in paragraph (c).
Note 1: See also Division 2 (reason for action and coercion).
Note 2: Grade A civil penalty.
There was no dispute that Michael Greenfield contravened s 54(1) on 31 January 2019 to 1 February 2019, nor that the Union also contravened that provision by reason of his conduct. The primary judge imposed a penalty of $35,000 on Michael Greenfield and a penalty of $175,000 on the Union.
Michael Greenfield and the Union appeal against those penalties. In summary, they make the following contentions:
(a)by grounds 14-16 of the amended notice of appeal, they contend that the penalties were imposed not only upon the basis of the admitted contravention (applying undue pressure as proscribed by s 54(1)), but also upon a more serious basis that was not pleaded or admitted, namely intention to coerce; further, they contend that there was no evidence of Michael Greenfield making, as found, “overbearing threats”; this is sought to be countered by the Commissioner’s notice of contention to the effect that, even if this error did occur, the penalties were nonetheless open to be imposed in the exercise of the penalty discretion;
(b)by ground 22, they contend that there was no evidence that the contravening conduct was, as found by the primary judge, motivated by a desire by the Union not to run the risk of losing its appeal to the Full Bench of the Fair Work Commission regarding approval of the proposed Union EBA; and
(c)by ground 28, they contend that the primary judge failed to take into account, as a mandatory relevant consideration under s 81(6)(b), that no loss or damage was suffered by Botany Cranes.
Cooperation discount
In the course of imposing the penalties summarised above, the primary judge found as follows in relation to the co-operation by the appellants at [114]:
The Union is well-resourced and financially substantial, as is the branch. In pecuniary penalty proceedings, the Union frequently does what occurred in this proceeding; namely, agree facts so that the Court can impose penalties without requiring witnesses, including not only the persons adversely affected by contravening conduct but also the officials and members of the Union who engaged in that conduct, to give evidence. I accept that this has a benefit in avoiding the persons affected by the contravening conduct from having to give evidence in Court. But, in this case, that benefit occurred only after extensive interlocutory processes, in circumstances where, as the agreed facts, including the subpoenaed police video, revealed, there was no real prospect of a defence to the allegations of the contraventions on 25 January 2019, except perhaps as to the identity of the organiser, given what appeared to be Mr Kera’s role.
By grounds 25 to 27, the appellants contend that the primary judge erred in this assessment of their co-operation by failing to take into account the public benefits of admissions and co‑operation, by taking into account an irrelevant consideration that there was no real prospect of a defence to the 25 January 2019 contraventions, and by failing to take into account as a relevant consideration that the resolution of the contraventions post-25 January 2019 were not the subject of police video or other objective evidence.
Personal payment orders
Additionally, the primary judge ordered that all of the penalties ordered to be paid by Mr Kera and Ms Mallia, $65,000 of the penalties to be paid by Michael Greenfield, and $3,500 of the penalties to be paid by Mr Byrnes, be paid by them personally without seeking or accepting any contribution by the Union. In the case of Mr Byrnes, this order was not sought by the Commissioner.
By grounds 37, 38 and 40, Mr Byrnes appeals against that order upon the basis that: (a) the Commissioner had not sought it and had submitted it was not appropriate; (b) the primary judge failed to take into account as a relevant consideration the public interest in promoting the predictability of outcomes in civil penalty proceedings; and (c) the primary judge erred in concluding that there was no prejudice to Mr Byrnes in imposing a non-indemnification order in circumstances where it had serious practical and legal consequences, he had agreed to resolve the proceeding on the basis that no such order was sought against him and, if such an order had been sought, it may have influenced his conduct of the proceeding.
Abandoned appeal grounds
For completeness, it should be noted that the appellants, by their amended notice of appeal, expressly abandoned grounds 5, 17 to 20, 23, 24 and 29 to 36. Further, at the appeal hearing, the appellants abandoned ground 39.
Grounds 1 to 4
These grounds of appeal relate to the conclusion of the primary judge that, in respect of the events on 25 January 2019, the Union committed four contraventions of s 47(1) and four contraventions of s 52(a) of the Act. By grounds 1 to 4, the Union contends, in summary, that the primary judge erred and that his Honour should have held that the Union committed only one contravention of s 47(1) and one contravention of s 52(a). It is not necessary to set out the text of these grounds.
These grounds of appeal turn on the correct construction and application of ss 94 and 95 of the Act. Although parts of those provisions have been set out above, we now set out those sections in full to provide context for the discussion that follows:
94 Liability of bodies corporate
Conduct of a body corporate
(1)Any conduct engaged in on behalf of a body corporate:
(a)by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b)by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act, to have been engaged in also by the body.
State of mind of a body corporate
(2)If, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3)The state of mind of a person includes:
(a)the knowledge, intention, opinion, belief or purpose of the person; and
(b)the person’s reasons for the intention, opinion, belief or purpose.
95 Actions of building associations
(1)For the purposes of this Act, each of the following is taken to be action of a building association:
(a)action taken by the committee of management of the building association;
(b)action taken by an officer or agent of the building association acting in that capacity;
(c)action taken by a member, or group of members, of the building association if the action is authorised by:
(i)the rules of the association; or
(ii)the committee of management of the association; or
(iii)an officer or agent of the association acting in that capacity;
(d)action taken by a member of the building association who performs the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity;
(e)if the building association is an unincorporated building association that does not have a committee of management—action taken by a member, or group of members, of the association.
(2)Paragraphs (1)(c) and (d) do not apply if:
(a)the committee of management of the building association; or
(b)a person authorised by the committee; or
(c)an officer of the building association;
has taken all reasonable steps to prevent the action.
(3)If, for the purposes of this Act, it is necessary to establish the state of mind of a building association in relation to particular action, it is enough to show:
(a)that the action was taken by a person, or a group, referred to in any of paragraphs (1)(a) to (e); and
(b)that the person, or a person in the group, had that state of mind.
(4)Subsections (1) to (3) have effect despite subsections 94(1) and (2) (liabilities of bodies corporate).
The parts of the above provisions of principal relevance are ss 94(1)(a) and 95(1)(b), these being the parts relied on in the SOAF as the basis for attributing the conduct of the officials on 25 January 2019 to the Union.
The primary judge’s reasons
At [20] of the First Reasons, the primary judge noted (relevantly for present purposes) that the parties agreed that the Union contravened ss 47(1) and 52(a) of the Act on 25 January 2019, but were in dispute as to how many contraventions of those provisions it committed. His Honour noted that the Commissioner asserted that the conduct of each of the officials constituted a separate contravention by the Union, while the Union contended that there was only one unlawful picket and one act of coercion; that is, only one contravention of s 47(1) and only one contravention of s 52(a) by the Union. To the extent that his Honour discussed the issue of whether the Union could be liable for only one penalty, we discuss that aspect of his Honour’s reasons in the context of considering grounds 6 to 13 of the amended notice of appeal. The grounds we are presently considering – grounds 1 to 4 – are concerned with the number of contraventions committed by the Union.
At [21], the primary judge summarised the Commissioner’s pleaded allegations in relation to the events of 25 January 2019, which were to the effect that each contravention by an official led to a separate contravention by the Union.
After setting out the parties’ submissions, the primary judge stated, at [35], that it was important to analyse the contraventions of each of the officials on 25 January 2019 to ascertain whether the Union engaged in a single contravention of each of ss 47(1) and 52(a) or in multiple contraventions. His Honour, at [35]-[38], summarised the conduct of each of the officials on 25 January 2019 as set out in the SOAF.
The primary judge considered the construction of ss 94 and 95 at [42]-[50] of the First Reasons. The primary judge recognised, at [43], that the purpose of s 94 is to facilitate proof of liability of the body corporate as a principal for any conduct engaged in on its behalf by an individual with the relevant characteristics. At [44], his Honour referred to Hamilton v Whitehead [1988] HCA 65; 166 CLR 121 at 126-129 per Mason CJ, Wilson and Toohey JJ, and Mallan v Lee [1949] HCA 48; 80 CLR 198 at 215-216 per Dixon J, and the distinction between statutory provisions that impose liability directly on both an officer of a body corporate and the body for the same conduct, on the one hand, and on the officer as an accessory to the conduct in which he or she caused the body to engage, on the other. The primary judge stated at [45]:
It follows that, where conduct of an individual, to which s 94 applies, constitutes a contravention of the Act, ipso facto, the body corporate will also contravene in the same way and by the same conduct as that individual: Mallan 80 CLR at 215–216; Whitehead 166 CLR at 126–127.
The primary judge considered, at [49]-[50], the judgment of the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; 282 FCR 1. The primary judge noted, at [50], that in that case, “[i]mportantly, White J recognised that, in any particular situation, it is possible that more than one unlawful act by a body corporate can have occurred through the statutory agency created by the deeming of conduct and actions of one or more individuals within an overall event to be that of the body, and that this can be alleged and proved”.
At [64]-[78], the primary judge considered the conduct of the officials on 25 January 2019. Although this part of the reasons is not directly relevant for grounds 1 to 4 (which concern the number of contraventions by the Union), we note that the primary judge emphasised the distinct aspects of the conduct of the officials as set out in the SOAF: see, eg, [66], [67].
The primary judge considered the Union’s conduct on 25 January 2019, and the characterisation of that conduct, at [79]-[93]. These sections of the First Reasons include discussion of two issues: first, the number of contraventions committed by the Union; and secondly, whether the Union was liable for more than one penalty. Grounds 1 to 4 of the amended notice of appeal relate to the first issue, while grounds 6 to 13 (discussed later in these reasons) relate to the second issue. In relation to the number of contraventions, his Honour rejected the Union’s argument that it committed only one contravention of each of ss 47(1) and 52(a): at [80]. His Honour held, in essence, that, by reason of the conduct of each official being taken to be the conduct of the Union, and the conduct of each official being distinct or separate, the Union committed four contraventions of s 47(1) and four contraventions of s 52(a): at [80], [82], [155]. His Honour noted that the overlapping elements of the conduct would be relevant to the amount of any penalty to be imposed: at [81], [82].
When it came to fixing a penalty for the Union’s contraventions, the primary judge approached the matter on the basis that the Union had committed four contraventions of s 47(1) and four contraventions of s 52(a), making a total of eight contraventions. His Honour stated that the maximum penalty for the Union’s conduct on 25 January 2019 was $1.68 million (see [160]). That figure represents eight times the maximum penalty for a single contravention of those provisions (which is $210,000). Although taking into account the degree of overlap, it was in this context that his Honour arrived at a single penalty of $500,000 for the Union’s contraventions of ss 47(1) and 52(a) on 25 January 2019.
The parties’ submissions
The Union submits that his Honour’s analysis failed to properly assess the conduct attributed to the Union and the elements of the contraventions of ss 47(1) and 52(a) admitted in the SOAF: see Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; 241 FCR 338 at [48]-[50]. The Union submits that his Honour’s reasoning was tantamount to applying ss 94 and 95 (wrongly) as attributing liability to a body corporate for the contraventions of its employees, agents and officers.
The Union submits that: s 47(1) proscribes organising or engaging in an “unlawful picket” by a “person”; an unlawful picket is committed if the factual and state of mind elements detailed in s 47(2) are satisfied, namely, that a person engages in action that either has a particular purpose, brings about a particular result or which is of a particular character; that action must also either have a particular industrial purpose or otherwise be unlawful; an “unlawful picket” as contemplated by s 47 is necessarily a collective effort and connotes a body of persons stationed in front of a workplace or other premises who are engaged in attempting to dissuade or prevent persons entering the premises (Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767, 768; Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; 91 FCR 463 at [69]; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Kiama Aged Care Centre Case) [2021] FCA 920; 309 IR 353 at [375]-[382]); whether a body corporate organises and engages in one or more unlawful pickets must be considered in light of these matters of statutory context and the nature of pickets that are contemplated to fall within s 47(1).
The Union submits that: in the present matter, there was a single picket on 25 January 2019; the single picket is described in [26]-[34] of the SOAF; that description makes clear that the actions of the group, which included the individual appellants, constituted the engaging in (and in Michael Greenfield’s case, the organising of) the single picket; it was a single continuous event which occurred at one time and in one place and it had one beginning and one end; the Commissioner pleaded it as a single picket constituted by approximately 30 persons; the Union as a body corporate did not organise and engage in multiple unlawful pickets; rather, by the conduct and actions of the individual appellants and the other persons who formed the group of picketers that assembled outside the yard, it organised and engaged in a single picket.
In response, the Commissioner submits that: it is not correct that an unlawful picket must necessarily be constituted by a collective group; the reference given by the Union to Davids Distribution does not support the Union’s contention; in Broome v Director of Public Prosecutions [1974] AC 587, a picket was found to have been engaged in by one person; the relevant legislation referred to “one or more persons” as constituting a picket, just as “person” in the Act could be interpreted to include “persons”; but that does not exclude a picket being constituted by one person; s 47(2) has its own definition of an unlawful picket; that definition does not stipulate that it cannot be constituted by one person; the “statutory context” and “the nature of pickets” do not assist the Union.
The Commissioner submits that: the prohibited conduct under s 47 is engaging in or organising an unlawful picket; when alleged against individuals, those are necessarily individual activities; it is not necessary to allege that multiple pickets were “mounted” by each individual appellants; indeed, it would be insufficient to invoke the application of s 47(1); that submission in fact presumes a picket could be one person, contrary to the Union’s submission that it must be collective.
The Commissioner submits that: the Union can gain no assistance from the pleadings or the SOAF; the amended statement of claim and the further amended originating application clearly pleaded that each of the individual appellants engaged in (and in Michael Greenfield’s case, organised) an unlawful picket under s 47 and, separately, each of them took action in contravention of s 52, and that in relation to those individual contraventions, the Union was liable and committed more than one contravention; the primary judge accepted that the pleading characterised the contraventions as qualitatively distinct; the identification of the separate engagement of each of the individual appellants is repeated in the SOAF at [37]-[39] and [41]; the parties by agreement deliberately left the issue of how many contraventions were committed by the Union to be dealt with in submissions at the penalty hearing.
The Commissioner submits that: in both Robinson (at [53]) and the Bay Street Appeal (at [258]-[259]) the conclusion that only one penalty should be imposed on the union occurred in circumstances where the pleading and the judge’s factual findings were to the effect that one stoppage of work was organised, albeit by more than one official; in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070; 299 IR 231 at [79], Katzmann J expressed doubt that Robinson would have been so decided if it involved engagement in industrial action; in that case, Katzmann J was dealing with allegations of contravention of s 47 by engagement; her Honour imposed one penalty because the pleading alleged only a single unlawful picket (see [100]); similarly in the Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Yarra’s Edge Case) [2016] FCA 772, Jessup J imposed one penalty on the union where more than one official had, as pleaded, engaged “themselves and in combination” in industrial action in contravention of s 38 of the Act; the decision turned on the way in which the case was pleaded, conducted and the view of the facts taken by the judge; at [19], Jessup J took the view that on the facts it would have been artificial to have regarded the conduct of the union as engaging in separate industrial actions.
The Commissioner submits that the way in which s 94 attributes liability to a body corporate is agreed – it facilitates proof of the liability of bodies corporate by attributing the actions and states of mind of individuals to the union, not their contraventions or liability. The Commissioner submits that: the juridical consequence of the attribution of the conduct of individuals to the body corporate is that the body corporate also contravenes the relevant provision, as the appellants admitted in the SOAF, eg at [38]; this is what the primary judge was referring to when he said (at [45]) the union “ipso facto … will also contravene in the same way and by the same conduct”; the primary judge did not state that the liability of the Union was accessorial or vicarious; his Honour clearly distinguished the action of s 94 from s 92 of the Act at [43] of the First Reasons.
Consideration
In essence, the primary judge reasoned that, because each individual appellant engaged in separate conduct while participating in the picket and so contravened ss 47(1) and 52(a), the Union as a body corporate and building association (by reason of ss 94(1) and 95(1)) contravened ss 47(1) and 52(a) on as many occasions. In our view, that reasoning involves an incorrect construction and application of ss 94(1) and 95(1) for the following reasons.
First, it fails to appreciate the singular nature of the picket that was pleaded in the amended statement of claim and established by the agreed facts in the SOAF in relation to 25 January 2019. There was no allegation that there were multiple pickets, with a separate picket engaged in (or organised by, in the case of Michael Greenfield) by each official. To the contrary, the picket on 25 January 2019 was pleaded as a single picket. At [33] of the amended statement of claim it was alleged:
On 25 January 2019 at about 5:30 am a group of approximately 30 persons, including Kera, Mallia, M Greenfield, Hanlon, Byrnes, Russell-Anderson, Bulley, Astrup, Guarrera, Miller and McIvor, arrived at the Yard and positioned themselves across the driveway and entry gate to the Yard (the First Picket). …
The balance of this section of the pleading (from [33]-[46]) referred to the picket on that date as the “First Picket”, albeit comprising separate acts by different individuals, for which each of them was asserted to be individually responsible and for which the Union was asserted to be collectively responsible.
Similarly, the SOAF described a single picket on 25 January 2019. After setting out the facts relating to 25 January 2019 at [26]-[32], including separate acts by different people, the SOAF stated at [36]:
36.The actions of each of Kera, M Greenfield, Mallia and Byrnes in participating in the activities of the group set out in paragraphs 26 to 32 above constituted engaging in (and in the case of M Greenfield, organising) an unlawful picket within the meaning of section 47 of the BCIIP Act …
(Emphasis added.)
The subsequent paragraphs of the SOAF, in which the agreed contraventions of ss 47(1) and 52(a) relating to 25 January 2019 were set out, referred to a single picket. The relevant paragraphs were:
37.By reason of the matters in paragraphs 23 to 36 above, each of Kera, M Greenfield, Mallia and Byrnes contravened section 47 of the BCIIP Act by engaging in (and, in the case of M Greenfield, organising) an unlawful picket.
38.The conduct and actions of each of Kera, M Greenfield, Mallia and Byrnes on 25 January 2019 at Botany Cranes Yard, as set out at [paragraphs] 23 to 36 above, by reason of sections 94(1)(a) and 95(1)(b) of the BCIIP Act, was the conduct and actions of the CFMMEU, which thereby contravened section 47 on 25 January 2019.
39.The conduct of each of Kera, M Greenfield, Mallia and Byrnes on 25 January 2019 at the Botany Cranes Yard, referred to in paragraphs 23 to 36 above, constituted the taking of action against Botany Cranes with intent to coerce Botany Cranes to employ Byrnes as a building employee, that was unlawful, and contravened section 52 of the BCIIP Act.
40.For the purposes of “coercion” within the meaning of section 52, the conduct of Kera, M Greenfield, Mallia and Byrnes was unlawful in that it constituted an unlawful picket in contravention of section 47 of the BCIIP Act.
41.The conduct and actions of each of Kera, M Greenfield, Mallia and Byrnes on 25 January 2019 at Botany Cranes Yard, as set out in paragraphs 23 to 36 and 39 to 40, by reason of sections 94(1)(a) and 95(1)(b) of the BCIIP Act, were the conduct and actions of the CFMMEU, which thereby contravened section 52 on 25 January 2019.
(Emphasis added.)
It is important to note that, as is apparent from the above paragraphs of the SOAF, the contravention or contraventions of s 52(a) were based on the same facts as the contravention or contraventions of s 47(1), that is, the single picket.
Secondly, the primary judge’s approach pays insufficient regard to the nature of the proscription in s 47(1), and the need to characterise the conduct of the Union (that is, the conduct that the Union is taken to have engaged in by reason of ss 94(1) and 95(1)) to determine whether it constitutes a single contravention, or multiple contraventions, of s 47(1). A picket is an activity rather than a single act. Section 47(1) prohibits organising or engaging in an unlawful picket. The question here is: how many times did the Union organise or engage in an unlawful picket, in the context of the activity being a single continuous activity, as described in the agreed facts in the SOAF? In our view, on the proper characterisation of the agreed facts, the Union’s conduct by way of organising and engaging in an unlawful picket was singular, and should have been characterised as such by the primary judge. The Union’s singular act of organising and engaging in the picket was proved by the conduct of any one of the four officials, and was also pleaded by reference to the combined effect of that conduct.
Thirdly, notwithstanding certain statements by the primary judge to the contrary, his Honour in substance applied s 94 of the Act incorrectly as a vicarious liability provision, that is, a provision that renders the body corporate liable for a contravention of a provision of the Act because the official has contravened that provision. That the primary judge took this approach is most clearly seen from his statement in [45] that “where conduct of an individual, to which s 94 applies, constitutes a contravention of the Act, ipso facto, the body corporate will also contravene in the same way and by the same conduct as that individual” (emphasis in original). The primary judge cited Mallan v Lee at 215-216 and Hamilton v Whitehead at 126-127 in support of that proposition, but the provisions under consideration in those passages were differently expressed and structured, and we do not consider the passages to support the proposition that, where the conduct of an individual constitutes a contravention of the Act, and the requirements of s 94(1) are satisfied, the body corporate will necessarily contravene the Act. Further and in any event, the cases cited by the primary judge do not address the issue of the number of contraventions committed by the body corporate in circumstances where the conduct of more than one individual is attributed to a body corporate under ss 94(1) or 95(1), which is the issue of present relevance.
Section 94 attributes the conduct of an official to the body corporate; it does not necessarily follow that the body corporate contravenes the Act, or that it contravenes the Act on each occasion that an official contravenes the Act. In Robinson, Charlesworth J made the following observations about s 793 of the Fair Work Act 2009 (Cth), which was in substantially the same terms as s 94 of the present Act:
48Section 793 does not, of itself, fix upon a body corporate liability for contraventions found to have been committed by its officers, employees or agents. Rather, it attributes to the body corporate the conduct and state of mind of its officers, employees and agents in prescribed circumstances. The question of whether the body corporate has contravened the FW Act (and, if so, on how many occasions) must be answered by assessing the facts, namely the conduct and state of mind attributed to the body corporate, against the elements of the contravention said to have been committed by it.
…
50The second thing to be said about s 793 arises from my earlier observation that it does not directly operate to fix liability for a contravention on a body corporate; it is not to be regarded as a codification of the doctrine of vicarious liability: cf Trade Practices Commission v Tubemakers of Australia Ltd (No 2) (1983) 76 FLR 455 at 474-475; 47 ALR 719 at 739 (Toohey J). The mere fact that two employees of the CFMEU have each contravened the FW Act does not of itself, demand the conclusion that the CFMEU is liable for two contraventions.
These observations were applied by Jessup J in the Yarra’s Edge Case at [19]. Although expressed in relation to s 793 of the Fair Work Act, the observations of Charlesworth J in the above passage are equally applicable to s 94 of the present Act.
In our view, the correct analysis in the circumstances of this case (having regard to the way the case was pleaded and the facts agreed in the SOAF) is that the Union organised and engaged in only a single picket on 25 January 2019 and, in so doing, committed only one contravention of s 47(1). The Union’s organising of and engagement in the picket is to be regarded as the aggregate of its conduct, just as the engagement of any natural person is the aggregate of that person’s conduct. The primary judge wrongly treated the evidence of the engagement of each official as evidence of a separate and distinct engagement by the Union in the picket. That would have been appropriate treatment if the primary judge had been considering the Union’s vicarious liability for the engagement of each official. However, as discussed above, ss 94(1) and 95(1) do not operate in that way.
As for s 52(a), the analysis is largely the same because the question is the number of times the Union may be said to have taken “action” in circumstances where the action was the picket, and the picket was a single continuous activity.
We therefore uphold grounds 1 to 4.
It follows that the penalty imposed by the primary judge on the Union with respect to the events of 25 January 2019 (a global penalty of $500,000) needs to be set aside. That penalty was premised on the Union having committed four contraventions of s 47(1) and four contraventions of s 52(a). However, for the reasons set out above, the Union committed one contravention of s 47(1) and one contravention of s 52(a) on 25 January 2019. Therefore, paragraph 19(a) of the orders made by the primary judge on 19 May 2021 needs to be set aside. Paragraph 19(d) of those orders provided that, out of the penalty in paragraph 19(a), the Union was to pay $30,000 to Botany Cranes, $2,500 to Ms Hodges and $15,000 to the NSW Police Force. It follows from our decision that paragraph 19(a) needs to be set aside that paragraph 19(d) also needs to be set aside.
Grounds 6 to 13
Grounds 6 to 13 of the amended notice of appeal relate to the conclusion of the primary judge that, in respect of the events of 25 January 2019, each of the appellants was liable to more than one penalty – a penalty for contravention of s 47(1) and a penalty for contravention of s 52(a) – rather than being liable for only one penalty (as contended by the Union and the officials). By grounds 6 to 12, the appellants contend, in summary, that, by reason of s 83(2) of the Act, each of the appellants was liable to only one penalty as the contraventions related to the same conduct, and the primary judge erred in not so holding. The appellants also challenge aspects of his Honour’s construction of ss 83, 84 and 91. Ground 13 is an alternative ground, and need only be dealt with if grounds 6 to 12 are not successful.
It should be noted that, unlike grounds 1 to 4, grounds 6 to 13 are not concerned with the number of contraventions; they are concerned, rather, with whether each appellant was liable for more than one penalty in circumstances where (the appellants contend) the contraventions related to the same conduct. The individual appellants accept that, in relation to the events of 25 January 2019, they each committed one contravention of s 47(1) and one contravention of s 52(a). Likewise, as discussed above, the Union accepts that it committed one contravention of s 47(1) and one contravention of s 52(a) on 25 January 2019. The issue here is whether each appellant is liable for more than one penalty in respect of those contraventions.
Grounds 2 and 5 of the amended notice of contention are relevant here. In summary, the Commissioner contends that, in the event that the Full Court upholds ground 6 or 10 of the amended notice of appeal (which relate to the primary judge’s construction of ss 91 and 83(2) respectively), the imposition of separate penalties on the appellants for their contraventions of ss 47(1) and 52(a) should be affirmed on the basis that the contraventions involved different physical conduct (as to which the primary judge made findings as part of the findings he relied on).
Sections 81, 83, 84 and 91 of the Act are relevant for present purposes. Sections 81, 83 and 84, which were located in Div 1 (Obtaining an order for contravention of civil remedy provision) of Pt 2 (Orders for contravention of civil remedy provisions) of Ch 8, relevantly provided as follows:
81 Penalty etc. for contravention of civil remedy provision
(1)A relevant court, on application by an authorised applicant, may make one or more of the following orders relating to a person (the defendant) who has contravened a civil remedy provision:
(a)an order imposing a pecuniary penalty on the defendant;
…
Maximum penalty for civil remedy provisions
(2)The maximum pecuniary penalty is:
(a)for a Grade A civil remedy provision—1,000 penalty units if the defendant is a body corporate and otherwise 200 penalty units; and
(b)for a Grade B civil remedy provision—100 penalty units if the defendant is a body corporate and otherwise 20 penalty units.
…
Pecuniary penalties
(5)A pecuniary penalty under paragraph (1)(a) is payable to the Commonwealth, or to some other person if the court so directs. It may be recovered as a debt.
(6)In determining a pecuniary penalty under paragraph (1)(a), the court must take into account all relevant matters, including:
(a)the nature and extent of the contravention; and
(b)the nature and extent of any loss or damage suffered because of the contravention; and
(c)the circumstances in which the contravention took place; and
(d)whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.
…
83 Conduct contravening more than one civil remedy provision
(1)If conduct constitutes a contravention of 2 or more civil remedy provisions, proceedings may be instituted under this Part against a person in relation to the contravention of any one or more of those provisions.
(2)However, the person is not liable to more than one pecuniary penalty under this Part in relation to the same conduct.
84 Multiple contraventions
(1)A relevant court may make a single civil penalty order against a person for multiple contraventions of a civil remedy provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.
(2)However, any pecuniary penalty imposed must not exceed the sum of the maximum penalties that could be ordered if a separate pecuniary penalty were ordered for each of the contraventions.
Section 91, which was located in Div 2 (Civil proceedings and criminal proceedings) of Pt 2 of Ch 8, provided:
91 Civil double jeopardy
If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.
Note:A court may make other orders, such as an order for compensation, in relation to particular conduct even if the court has made a civil penalty order in relation to that conduct.
The expression “civil remedy provision” is defined in s 5 of the Act as meaning a “Grade A civil remedy provision” or a “Grade B civil remedy provision”, each of which is a defined expression, referring to provisions of the Act that are identified as such in a Note. Sections 47(1) and 52(a) are both Grade A civil remedy provisions.
The primary judge’s reasons
The primary judge considered the construction of ss 83, 84 and 91 of the Act at [51]-[63]. His Honour referred, at [52], to Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201; 272 FCR 290 (the Hassett Appeal) (Bromberg, Wheelahan and Snaden JJ), which considered s 556 of the Fair Work Act, which was in the same terms as s 91 of the present Act. The primary judge noted that the Full Court held that the conduct, comprising contraventions of two provisions, overlapped and engaged the protection from double jeopardy in s 556 of the Fair Work Act. The primary judge stated that the decision in the Hassett Appeal was not binding, because it relates to the construction of a different Act (at [54]).
The primary judge also considered, at [55], Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65; 185 FCR 308, noting that Besanko and Gordon JJ had held, on the facts, that a contravener could not be liable to two penalties for contravention of ss 38 and 44 of the Building and Construction Industry Improvement Act 2005 (Cth). The primary judge noted that, in that case, the contravention of s 38 was an integral element of the contravention of s 44, and that Besanko and Gordon JJ found that the unlawful conduct of the shop steward in organising the stop work meeting on the later day “was entirely subsumed in the conduct constituting” the broader contravention of s 44 (involving both days).
The primary judge stated at [59] that if the construction adopted in the Hassett Appeal in relation to s 556 of the Fair Work Act were applied to s 91 of the present Act, it would render s 83(2) of the Act otiose and s 84 of the Act meaningless (see also at [60]). His Honour then observed at [59]:
59… Importantly, ss 83 and 84 refer to the consequences of there being more than one contravention of a “civil remedy provision”, being a term defined in s 5 of the Act. In contrast, s 91 is directed to what will occur if a person is ordered to pay a civil penalty “under a civil remedy provision”, by excluding the person from liability to pay a pecuniary penalty “under some other provision of a law of the Commonwealth in relation to that conduct”. The reference to “some other provision of a law of the Commonwealth” is to another Act of the Parliament or a regulation or other legislative instrument creating such a liability. That reference cannot be to another provision of the Act, because s 83(2) specifically deals with, and prevents, liability to the imposition of more than one pecuniary penalty under the Act “in relation to the same conduct” (emphasis added), and s 84(1) expressly allows the Court to impose multiple civil penalties for multiple contraventions of a civil remedy provision (under the Act) “founded on the same facts” (emphasis added).
(Underlined emphasis added.)
The primary judge expressed the following views at [60]-[61]:
60In my opinion, ss 83, 84 and 91 of the Act operate, harmoniously (as, ordinarily, does the common law), to prevent a person being exposed to jeopardy twice for exactly the same conduct, being all of the physical and mental elements that go to making a person liable for a contravention of two laws at once: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381–382 [69]–[71] per McHugh, Gummow, Kirby and Hayne JJ. However, once there is a substantive difference between one or both of the physical or mental elements, s 84(1) expressly provides, even though both contraventions “are founded on the same facts”, that each can be penalised separately, cumulatively or as having occurred as part of a course of conduct. …
61In my opinion, the purpose of s 91 is to prevent a person being exposed to two penalties in relation to the same conduct (ie: the same physical and mental elements), one for contravening a civil remedy provision of the Act, such as s 52(a), and a second for contravening a provision of a different statute, such as s 355(a) of the Fair Work Act (which prohibits a person organising or taking, or threatening to organise or take, any action against another person with intent to coerce that other person or a third person to employ or not employ a particular person).
(Emphasis added.)
The primary judge therefore held, at [62], that the Full Court’s decision as to the construction of s 556 of the Fair Work Act in the Hassett Appeal could not be applied to the construction of s 91 of the Act. His Honour summarised his construction of ss 83, 84 and 91 in the following passages at [62]-[63]:
62… I am of [the] opinion that the expressions “in relation to particular conduct” in s 91 and “in relation to the same conduct” in s 83(2) of the Act relate to two contraventions of the Act creating liability to a penalty that arise from the same legislatively proscribed conduct. But, as s 84(1) expressly provides, that Act allows “multiple contraventions… founded on the same facts” (emphasis added) to be penalised cumulatively, as occurred in Parker 270 FCR 39.
63 Importantly, the expression “a civil remedy provision” is defined in s 5 of the Act as meaning a provision that attracts a penalty for which the Act provides. Section 83 provides that a person is not liable to more than one penalty under the Act “in relation to the same conduct”. Thus, s 83 applies to multiple contraventions of a civil remedy provision proscribing the same conduct under the Act, but s 84(1) states that a person is liable to a civil remedy proceeding under the Act in respect of multiple contraventions “founded on the same facts” (emphasis added). In contrast, s 91 applies to a situation in which there is both a contravention of a civil remedy provision “in relation to particular conduct” under the Act and a contravention of other legislation “in relation to that conduct” (emphasis added) – namely, the same conduct that the legislation proscribes.
(Emphasis in original.)
The primary judge applied this construction of the provisions to the officials’ conduct on 25 January 2019 at [64]-[78] of the First Reasons. His Honour summarised the conduct of each individual (as set out in the SOAF) at [64]-[70] and then stated at [71]:
71In my opinion, pars 37 and 41 of the agreed facts produce the result that on 25 January 2019 the officials contravened both ss 47(1) and 52(a) of the Act. The conduct that constituted the contravention of each section was different, although the contraventions were founded on the same facts. The conduct constituting each official’s contravention of s 52(a) was not “subsumed” in the conduct of that person in his, her or its contravention of s 47(1). That is because each contravention involved different elements and each contravener engaged in different conduct and acts in committing his or her contraventions even though there were some common facts. … I reject the contraveners’ argument that s 91 requires that only one penalty can be imposed in relation to that “particular conduct” based on the Hassett Appeal 272 FCR at 293–294 [14]–[19], 296 [26]. To the contrary, for the reasons I have given, I am of opinion that each of ss47(1) and 52(a) proscribe, and therefore involve, different conduct and create liability to two penalties, not one. A person may contravene both sections “founded on the same facts”, as s 84(1) contemplates, but the contraventions relate to different proscribed conduct and are distinct. The intention and conduct necessary to contravene s 52(a) are different to that for s 47(1).
In summary, the primary judge reasoned that the individual appellants were liable to more than one penalty for the contraventions of ss 47(1) and 52(a) because: (a) the intention and conduct elements of the two provisions are different; and (b) for each individual appellant, the conduct (including the mental state) that constituted the contravention of s 52(a) was different from the conduct (including the mental state) that constituted the contravention of s 47(1). It should be noted that, insofar as the primary judge stated in the first sentence of [71], that in his opinion the effect of the agreed facts was that the officials contravened both ss 47(1) and 52(a), there was (and is) no issue about this. The officials accepted that they had contravened both ss 47(1) and 52(a).
The primary judge applied essentially the same reasoning to the issue of whether the Union was liable for more than one penalty, holding that it was: see [86]-[93].
The parties’ submissions
It is common ground between the parties that the primary judge was correct to hold that s 91 of the Act is directed to contraventions of statutes other than the Act. An appeal ground – ground 5 – challenging that aspect of his Honour’s reasoning has been deleted in the amended notice of appeal.
The appellants submit that ss 83 and 84 deal with different subject matters: s 83 concerns proceedings where contraventions of more than one civil remedy provision of the Act are alleged to have been committed by the same conduct; s 84 deals with proceedings where multiple contraventions of the same civil remedy provision of the Act are alleged.
The appellants submit that the primary judge was in error in concluding at [60] of the First Reasons that s 84(1) permitted an aggregate penalty to be imposed for contraventions of different civil remedy provisions. The appellants submit that s 84(1) does not operate in relation to contraventions of different civil remedy provisions.
The appellants submit that the primary judge also erred at [60] of the First Reasons in determining that “conduct” for the purposes of ss 83(2) and 91 of the Act extended to a person’s “mental state” in relation to particular conduct.
The appellants submit that: s 83(2) operated to preclude the imposition of more than one penalty for the appellants’ conduct which contravened both ss 47(1) and 52(a) on 25 January 2019; and the primary judge’s imposition of penalties for both contraventions was beyond power.
The Commissioner agrees with the appellants that s 84 has no application to the problem of whether or not the individual appellants should have imposed on them more than one penalty for their contraventions of ss 47 and 52 of the Act, and submits that the primary judge did not treat s 84 as doing so.
The Commissioner submits that the debate turns, therefore, on the interpretation of s 83. The Commissioner submits that, as the primary judge indicated, s 83 seeks to do the work of s 91 where the contraventions are of two provisions under the Act, although s 83(2) prohibits more than one penalty “in relation to the same conduct” instead of “in relation to particular conduct”.
The Commissioner submits that: s 52 of the Act, like ss 348 and 355 of the Fair Work Act considered in Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 270 FCR 39, penalises “action” taken with a particular intent; a constituent and necessary part of what effects a contravention is the intention to negate choice; in Parker, the Full Court accepted that two coercion counts were not to be treated as the same conduct for the purposes of both ss 556 and 557, in part because of the different intentions required to be proved (but also because the conduct was “manifestly different”): at [278]-[280] and [312]-[313].
The Commissioner submits that, by contrast, in Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367, Jessup J’s dictum at [40], applied by the Full Court in the Hassett Appeal, was that while adjectival elements of a contravention were insufficient to differentiate them so as not to be the same “particular conduct”, nonetheless “particular conduct” includes “what the person actually did, with all of its attributes and in its whole context”. The Commissioner submits that: the intent component of a s 52 contravention is an attribute of what the appellants were found to have done; the primary judge therefore did not err in finding that, on the agreed facts and admissions, the contraventions of ss 47 and 52 were not “the same conduct” because they had different physical and mental elements.
As discussed in relation to grounds 6 to 13, for each contravener the primary judge should have treated the 25 January 2019 conduct in relation to the contravention of s 47(1) and that in contravention of s 52 to be “the same conduct” for the purposes of s 83(2) and applied that provision to impose a single pecuniary penalty in respect of that conduct. Furthermore, as discussed in relation to grounds 1 to 4, in respect of the 25 January 2019 conduct of the CFMMEU, the primary judge erred in finding eight contraventions – four in relation to s 47(1) and four in relation to s 52(a). For the reasons given above, the CFMMEU contravened each of those provisions once and given that each contravention involved the same conduct, s 83(2) requires that only one pecuniary penalty be imposed in relation to that conduct. Likewise, s 83(2) requires that a single penalty be imposed for the contraventions of ss 47(1) and 52(a) by each of the individual contraveners. There is no particular reason for regarding either the contraventions of s 47(1) or the contraventions of s 52 as the leading contraventions. However, as the picket provided the context in which the s 47(1) contraventions occurred, we will proceed on the basis that a single pecuniary penalty should, in each case, be imposed for a contravention of s 47(1).
The maximum penalty for each of the contraventions of the pecuniary penalty provisions in question by the CFMMEU is $210,000 and for each of the individuals is $42,000.
The background matters relevant to the picketing conduct of 25 January 2019 have been set out already. A description of the premises of Botany Cranes which were the subject of the picket is given at [5] above. At [19] above, we have broadly described the picket which took place on 25 January 2019 following the termination of the employment of Mr Byrnes by Botany Cranes on 24 January 2019. The admissions made in relation to the activities of the persons involved in the picket are set out at [20] and include their industrial motivations for their actions. Additionally, the primary judge made unchallenged findings about the participation in the picket of each of Mr Kera, Michael Greenfield, Ms Mallia and Mr Byrnes at [65]-[70] and [77] of the First Reasons as follows (emphasis in original):
65Mr Kera addressed to the group and told them that they were “going to fight to the death” to have Mr Byrnes reinstated. He said that Botany Cranes had picked a fight with the Union and “we’re going to accommodate them”. He told them that Botany Cranes would “cop it straight between the eyes”; that its workers had not had a pay rise in 3.5 years, other than a $1.50 increase; that it had “double-crossed” the Union over the CFMMEU proposed EBA by refusing to sign it after agreeing to do so and that they were “going to wipe the floor” with Botany Cranes like the Union had done with WGC Cranes, after what he said was a two-week protected industrial action campaign, and Boom Logistics, after a five-week campaign (agreed facts pars 27(g) and 54). His tone and language, as recorded in the police video, was threatening and inflammatory, while asserting to his audience that it was to be “a peaceful protest”. His speech produced rousing cheers.
66Mr Kera spoke as a senior official of the Union to the group that was already assembled. That engagement in the activities at the yard on 25 January 2019 was different to the conduct of anyone else. Of course, Mr Kera also engaged in the unlawful picket in concert with the other people in the group, and in that way contributed to its overall impact. But, his speech and later conduct in controlling the egress of persons from the yard was singular and distinct from the others.
67 Michael Greenfield addressed the group next. He thanked them for coming and said “This is the only way we are going to achieve anything”. He said that Mr Kera had “covered everything”, that Botany Cranes’ action in dismissing Mr Byrnes was “as illegal as it gets and they get away with murder and the fucking law is stacked against us, but we continue to do it the way we do it” and “we’re not going to stop until he’s back” (emphasis added). His admitted role as organiser was different to and distinct from that of the others present, including the other officials.
68The agreed facts state that Michael Greenfield organised the conduct and actions that constituted organisation in his contraventions of ss 47 and 52 without specifying any particular conduct or actions to distinguish whatever else he did from the limited description of the speeches and other activities ascribed to him, Ms Mallia, Mr Kera, Mr Byrnes and the group in the events that occurred in the unlawful picket and coercive action. I infer that Michael Greenfield (and the Union) admitted that he was the person who arranged for and rallied persons, including the other officials, to attend the yard at 5:30am on 25 January 2019 to set up and carry on the unlawful picket and to pursue the coercive aim of having Mr Byrnes’ employment reinstated. That inference is the stronger because of the significant role Michael Greenfield played in the events of 30 January, 31 January and 1 February 2019.
69Ms Mallia spoke briefly, and some content of what she said did not come over clearly in the police video because of her quieter voice and the police discussions, including organising to escort Ms Hodges into the yard, which occurred at the end of Ms Mallia’s speech and the beginning of Mr Byrnes’. Ms Mallia spoke as, and with the authority of, the branch president. She thanked and gave encouragement to the group to pursue the unlawful picket and to seek to coerce Botany Cranes to reinstate Mr Byrnes. Her involvement was, in one sense, of a lesser degree than that of Mr Kera and Michael Greenfield. But, her participation, as president, in the conduct was a powerful indication that the Union as a whole was there to demonstrate its commitment to achieving Mr Byrnes’ reinstatement by the coercive means that the two prec[e]ding speeches had stated with unmistakable directness.
70Mr Byrnes spoke next. He was holding a megaphone. He explained, understandably, that he was upset by the loss of his job but heartened by the show of support for him of those present. He denigrated the present management of Botany Cranes as “the worst owner … I’ve ever witnessed in my whole life in the building industry”.
…
77The activities of the group in the picket, including Michael Greenfield, lasted until about 4:00pm on 25 January 2019, well after the time (around 8:00am) that Mr Griffiths, Ms Hodges and other staff who were inside Botany Cranes’ premises had been allowed to leave with the assistance of the police. The chanting continued only to about 9:00am (agreed facts pars 31–34). The picket continued for longer and in a calmer manner after this time. The persons who engaged in it after 9:00am, including Mr Kera and Michael Greenfield, continued to do so with the motivations proscribed in s 47(2)(b)(i) and (ii), but the coercive impact of the speeches, chanting and aggressive behaviour during the early morning appears to have ceased around 9:00am.
Furthermore, the primary judge found in the First Reasons that:
(a)the picket involved no physical violence and that the picketers appeared to conform with police requirements (at [119]);
(b)the conduct of the picketers caused Ms Hodges to be fearful when she arrived and to seek police assistance to enter the yard of Botany Cranes in order to get to her place of work (at [119]);
(c)Ms Hodges’s fear caused her to tell the receptionist of Botany Cranes not to attend work for fear of her being intimidated and distressed by the conduct of the picketers (at [119]);
(d)the conduct of the picketers involved its members telling a mechanic employed by Botany Cranes, on his arrival for work, that he could not enter the yard and nor could anyone else, so that he did not attend work (at [120]);
(e)the actions and behaviour of the picketers caused the police to advise Botany Cranes that the picketers would not allow any cranes to leave the yard and that although staff and management could leave, the police would escort them for their own safety, due to the presence and conduct of the picketers. Further, that this caused Botany Cranes to form the view that their cranes could not leave the yard safely, that their office should be closed for the day and that the employees then at work should leave (at [120]);
(f)when vehicles left the yard of Botany Cranes some picketers yelled out “scum”, some made monkey noises and Michael Greenfield led more chanting (at [121]); and
(g)the conduct of the picketers, while not physically violent, was intimidatory and confronting and not a mere peaceful protest (at [122]).
Furthermore, the primary judge proceeded on the basis that Botany Cranes suffered some loss as a result of the disruption that the contraventions caused. Botany Cranes had lost revenue of $31,723.50 for the day as a consequence of the picket, although his Honour found it neither possible nor necessary to fix a precise sum to measure any actual loss suffered as a result of the disruption (at [124] of the First Reasons).
Those matters sufficiently address the nature and extent of the contravention (s 81(6)(a)), the nature and extent of the loss or damage suffered (s 81(6)(b)) and the circumstances in which the contraventions took place (s 81(6)(c)).
There can be no doubt that the conduct of each contravener was deliberate. We would infer, including from the finding of the primary judge that each of the contraveners were experienced and knowledgeable participants in the industrial system (at [137] of the First Reasons), that the conduct was engaged in by the contraveners in the knowledge that it was unlawful. Whilst the contraventions involved no violence or property damage, each contravention was nevertheless a serious contravention of s 47(1) of the Act warranting, for that reason alone, a substantial penalty to address the need for both specific and general deterrence.
The primary judge found that none of the contraveners had expressed any contrition, nor a recognition of the need not to repeat the contravening conduct (at [159] of the First Reasons). There is no evidence of any of the contraveners being disciplined or of any corrective action taken by the CFMMEU.
We have referred at [169] to the potential for cooperation with a regulator to lessen the need for deterrence. We have rejected grounds 25 to 27 of the appeal which challenged the primary judge’s assessment of cooperation despite the fact that it would appear that some weight was given to cooperation by the primary judge. We have relied upon our own assessment of what weight should be given to the cooperation shown by the contraveners, which included the making of significant admissions and a preparedness to agree the essential facts. In our view, whilst the cooperation provided was ultimately substantial, it may well have come earlier than it did. However, the available facts do not permit us to come to a firm view that the contraveners or any one of them should bear responsibility for their cooperation not coming earlier than it did. We regard the cooperation shown as justifying some moderation of the penalty to be imposed. In the case of the CFMMEU, taking into account the seriousness of its contravention and given its long history of non‑compliance, the cooperation provided is the only factor which supports the conclusion that something short of the maximum penalty available would be an appropriate penalty.
Specific considerations relevant to the penalty to be imposed upon the CFMMEU include that senior officials of the Branch were involved in the CFMMEU’s contravention. Further, the CFMMEU was found by the primary judge to be “well-resourced and financially substantial” (at [114] of the First Reasons) and thus, we would infer, capable of paying a substantial penalty imposing an appropriate sting.
Furthermore, the primary judge found that the CFMMEU had a history of 172 contraventions between 2002 and July 2020 (at [110] of the First Reasons). The evidence reveals that there were 172 occasions where contraventions of industrial laws occurred and on many occasions there were multiple contraventions. The Branch and its officials accounted for 14 of those occasions.
Whilst the CFMMEU is a single legal entity, it can only act through its human agents and deterrence of the CFMMEU is ultimately deterrence of those human agents. In circumstances where the contravening conduct was organised by Branch officials without any suggestion of the involvement of federal officials or officials of other branches of the CFMMEU and where the rules of the Union provide to the Branch substantial autonomy in relation to the affairs of the Branch, the purpose of deterrence is best served by giving greater weight to the history of the contravention of industrial laws by the Branch than that of the CFMMEU generally.
However, whilst the Branch appears to have a relatively better history of compliance with industrial laws than does the CFMMEU as a whole, that history is sufficiently grave to cloak the Branch with the same characterisation available for the CFMMEU, of an organisation which countenances its human agents operating with contumacious disregard for industrial laws that stand in the way of achieving the Union’s industrial imperatives. It was asserted (and seems to be uncontested) that of the 14 occasions of past contraventions by the Branch, only one occurred in the last five years through to 2020. That may support an inference that past penalties imposed in relation to the contravening conduct of officials of the Branch has had a deterrent effect. However, the contravening conduct in question demonstrates a continued preparedness by officials of the Branch to disregard the law.
Taking all of those considerations into account, we consider that a penalty approaching the maximum would be an appropriate penalty which would strike a reasonable balance between oppressive severity and the need for a high level of specific deterrence demonstrated by the matters discussed. We will impose on the CFMMEU a penalty of $190,000 for its contravention of s 47(1) of the Act on 25 January 2019.
Ms Mallia has no history of prior contravention of industrial laws. She spoke briefly at the picket. There is no evidence suggesting that she engaged in any aggravating conduct other than that, as President of the Branch, her status may be said to have given some leadership to the picket and thus perhaps encouraged the participation or extent of participation of others. Taking into account all of the matters referred to already of relevance to her circumstances, a penalty of $15,000 is appropriate to meet the needs of both general and specific deterrence.
Mr Byrnes had no prior contravening history. He was a delegate but not a senior office-holder of the Branch. He had lost his job and he spoke to the picketers thanking them for their show of support. He was involved in chanting. He was upset by the loss of his job. His participation was unlawful and knowingly so. His conduct was not justifiable, but given his predicament and the fact that the picket was largely for his benefit, his participation was largely situational. The situation which motivated his unlawful conduct was somewhat exceptional and, together with the lack of evidence that he remains employed in the building industry, the need for specific deterrence is lower than what it may otherwise have been. Taking into account those and other matters relevant to his contravention discussed above, a penalty of $3,500 is appropriate.
Mr Kera has a number of prior contraventions of relevance. On 13 September 2017 a penalty of $41,250 was imposed upon him for coercive conduct and on 18 October 2018 a further penalty of $20,000. He was an Assistant Secretary of the Branch. He did not organise the picket but was a leading participant. It is apparent that the two penalties imposed on him not long prior to his involvement in the conduct in question, failed to have the deterrent effect they were intended to have. In all of the circumstances, a penalty at the high end of the range is appropriate. We will impose a penalty of $35,000.
Michael Greenfield had one contravention of relevance for which he was penalised $3,000 on 13 September 2017. He was also an Assistant Secretary of the Branch. He both organised and led the picket knowing it to be unlawful. A far heavier penalty than that last imposed is necessary to achieve the deterrence that the previous penalty failed to achieve. Taking that and his leading role into account, as well as the other considerations relevant to his circumstances as discussed above, we consider $25,000 to be an appropriate penalty.
The contraventions of s 54 on 31 January 2019 and 1 February 2019
The contraventions of s 54 of the Act concern demands made by Michael Greenfield to Mr Griffiths of Botany Cranes in furtherance of the CFMMEU’s attempts to make an enterprise agreement with Botany Cranes in the terms proposed by the CFMMEU. On 31 January 2019, Michael Greenfield relevantly stated:
If I were you, I’d fuckin’ sign it. You haven’t seen anywhere near bad yet. See what happened to WGC and Boom Logistics and they had money, what do you think will happen to you?
The next day on 1 February 2019 in a further conversation with Mr Griffiths, Mr Greenfield relevantly said:
If you sign the EBA we will leave your sites alone.
As discussed already, it was admitted that those comments were made by Michael Greenfield with an intent to apply undue pressure upon Botany Cranes to agree to make an enterprise agreement, but not admitted that Michael Griffiths held an intent to negate the will or choice of Botany Cranes. The conduct was clearly deliberate and a serious contravention of s 54(1) of the Act. There are however, reasons why the conduct should be regarded as somewhat less serious than the contravention by Michael Greenfield (and consequently the CFMMEU) of s 52 on 25 January 2019.
The conduct was brief. It was not accompanied by any other aggravating conduct or any loss such as that brought about by the picket on 25 January 2019. Unlike the conduct which occurred on that day, which also included Michael Greenfield seeking to apply illegitimate pressure upon Botany Cranes to make an enterprise agreement, Michael Greenfield did not have an intent to negate the will or choice of Botany Cranes.
The other matters of significance to the imposition of an appropriate penalty upon Mr Greenfield and consequently the CFMMEU are not relevantly different to those discussed in relation to the contraventions that occurred on 25 January 2019. For those reasons and taking into account the totality principle, because in part the 31 January and 1 February 2019 conduct involved a continuation of the same unlawful objective which motivated the conduct on 25 January 2019, a penalty of $18,000 on Michael Greenfield is appropriate and a penalty of $150,000 on the CFMMEU is appropriate to meet the need for both specific and general deterrence.
Personal payment orders
As earlier discussed in more detail, Mr Byrnes admitted liability for the contravention found against him on the basis that no non-indemnification order for any penalty imposed upon him would be sought. No such non-indemnification order was sought by the respondent either before the primary judge or on the appeal, in the event that the discretion to re-impose a penalty was exercised. Although we found no appealable error in the primary judge’s imposition of a partial non-indemnification order against Mr Byrnes, that order must necessarily be set aside concurrently with the penalty in question being set aside.
However we would, with respect to the primary judge, exercise our discretion differently. We see greater force, than did the primary judge, in the contention that the making of a non-indemnification order in the circumstances just described, would be contrary to the public interest in promoting predictability of outcomes in civil penalty proceedings, including by encouraging cooperation and resolution of disputes of this kind, especially by lesser participants. That is not to say that a judge is in any way bound by private agreements of this kind, but if they are to be departed from by the Court, it may be that in some cases an affected party in a case that is contestable but still compromised needs to be given the opportunity to apply to withdraw an admission of liability and take the case to a liability trial.
We have also set aside the penalties imposed on Ms Mallia and Mr Kera and some of the penalties imposed upon Michael Greenfield in respect of which non-indemnification orders were made. There was no challenge to the making of those orders by the primary judge and nothing otherwise suggested by the appellants against the making of non-indemnification orders to accompany any re-imposition of any penalty upon those persons. We see no reason to depart from the approach taken by the primary judge and will make non-indemnification orders in respect of the penalties we re-impose on each of the individual contraveners, other than Mr Byrnes. In making a non-indemnification order against Michael Greenfield, we note that only a proportion of the total of all penalties ordered to be paid was the subject of the non-indemnification order made by the primary judge. We will take essentially the same approach. We will order that each of the re-imposed penalties be the subject of a non-indemnification order, with the result that of the total of $73,000 in penalties to be paid by Michael Greenfield, the sum of $43,000 will be the subject of a non-indemnification order.
Whether penalties should be paid to third parties
As stated earlier, the primary judge ordered that certain of the penalties (now to be set aside) be paid to Botany Cranes, Ms Hodges and the NSW Police Force. As a consequence of the penalties being set aside, those orders must also be set aside. However, that circumstance has led us to consider whether we should exercise the discretionary power conferred by s 81(5) of the Act in a way which would maintain the benefit to the persons or organisations concerned of the orders made by the primary judge under that provision.
Section 81(5) of the Act provides that a penalty imposed under s 81(1)(a) “is payable to the Commonwealth, or some other person if the court so directs”. The provision reflects s 546(3) of the Fair Work Act which provides that the court may order that “the pecuniary penalty, or a part of the penalty, be paid to … the Commonwealth … a particular organisation … [or] a particular person”.
The discretion provided by s 546(3) of the Fair Work Act was the subject of comprehensive consideration by Tracey, Barker and Katzmann JJ in Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336 at [58]-[122]. Their Honours there surveyed the authorities which have considered that provision and its legislative predecessors, tracing the provision back to ss 44 and 45 of the Conciliation and Arbitration Act 1904 (Cth). As their Honours observed at [78], what has been conceptualised as the “usual order” reflects a long‑standing principle governing the exercise of the discretion to make an order directing the payment of the penalty under s 546(3). The “usual order”, which seems to be a term coined by Gray J in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357, is that save for when the applicant is an inspector, a pecuniary penalty is ordinarily to be paid to the person or organisation applying for the penalty or to an organisation on whose behalf an applicant has applied (see Sayed at [82] and [101]-[102]). The rationale for the “usual order” is that it tends to encourage a “common informer” to police the relevant legislation (see Sayed at [87], [92] and [121]). Furthermore, the Full Court endorsed the observations made by Gray J in Plancor at [42] and [45] that the “usual order” is “not regarded as compensatory in any way” and that there is no suggestion that the legislative intention behind the power to order payment of a penalty to an organisation or person was compensatory. In Sayed at [104] their Honours also made this observation:
In our view, the legislative history of s 546(3), older authority and the terms of the Explanatory Memorandum show that no immediate or obvious connection was intended to be drawn between the exercise of the s 546(3) power and the exercise of the power under s 545 of the FW Act to order compensation.
As their Honours noted with approval (at [104]-[112]), the “long and well-understood” operation of the discretion in s 546(3) of the Fair Work Act was preferred by Gilmour J in Woodside Burrup Pty Ltd v Construction, Forestry, Mining and Energy Union (2011) 220 FCR 551, where his Honour construed s 49(5) of the Building and Construction Industry Improvement Act 2005 (Cth), a predecessor provision to s 81(5) of Act, which also provided that “[a] pecuniary penalty is payable to the Commonwealth or some other person if the Court so directs”.
Relevantly, at [133]-[134], Gilmour J said:
The power to award payment of a penalty to an applicant, in my opinion, is not intended to compensate a person for losses suffered by the contravention… It is “not regarded as compensatory in any way”… It is a distinct power of a kind historically construed as intended to encourage common informers…
Bearing in mind the strong connection between the Act and the Fair Work Act, the long and well accepted application of the discretion provided by s 546(3) of the Fair Work Act and its legislative predecessors, as well as the construction of s 49(5) by Gilmour J to which we have just referred, all of which the legislature may be taken to have known when re-enacting s 81(5), we take the view that we should exercise our discretion consistently with the rationale which underpins the “usual order”. As the penalties to be reimposed were sought by the relevant inspector or regulator, that rationale would require that, ordinarily, the penalties imposed be made payable to the Commonwealth.
We accept that extraordinary circumstances may justify the exercise of the discretion in s 546(3) in a manner different to that of the “usual order”. However, no such circumstances are either raised by the representations made by Ms Hodges, the NSW Police Force or Botany Cranes or are otherwise apparent. The only apparent purpose of the orders made by the primary judge in favour of Botany Cranes, Ms Hodges and the NSW Police Force is compensatory. As we have observed above by reference to long-standing authority, the use of s 81(5) for a compensatory purpose is inconsistent with the rationale governing the ordinary exercise of the discretion. We note in that respect that s 81(1)(b) of the Act empowers the Court to make an order “requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention”. No such orders were sought in the proceeding below. It follows that we decline, in the exercise of discretion, to maintain this aspect of the penalty imposition approach taken by the primary judge and therefore will not remake orders for the payment of any part of the penalties to anyone other than the Commonwealth.
Conclusion
For these reasons, we set aside certain of the orders made by the primary judge and re-exercise the penalty discretion as set out above.
I certify that the preceding two hundred and forty (240) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Bromberg, Moshinsky and Bromwich. Associate:
Dated: 15 March 2023
SCHEDULE OF PARTIES
NSD 579 of 2021 Appellants
Fourth Appellant:
RITA MALLIA
Fifth Appellant:
HOWARD BYRNES
- AGLC
- Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40
- Case
- [2023] FCAFC 40
- Decision Date
CaseChat Overview and Summary
The court found that the CFMMEU and the officials were liable for one contravention for each relevant provision, not multiple contraventions for the single unlawful picket. It also held that the penalties were imposed on the basis of intent to apply undue pressure, not intent to coerce. The court found errors in the primary judge’s assessment of cooperation and the consideration of personal payment orders. Consequently, the court set aside certain orders made by the primary judge and re-exercised the penalty discretion. The penalties imposed were adjusted to be paid by the CFMMEU and the officials to the Commonwealth of Australia within specified timeframes. Personal payment orders were also modified to prohibit any financial benefit from the CFMMEU for the penalties imposed on certain officials.
The court allowed the appeal in part, setting aside certain orders and re-exercising the penalty discretion. It ordered the CFMMEU and the officials to pay pecuniary penalties to the Commonwealth within specified timeframes. Personal payment orders were modified to prohibit any financial benefit from the CFMMEU for the penalties imposed on certain officials. The issue of costs was to be dealt with on the papers.
Orders
Orders of the court
1. The appeal be allowed.
2. Paragraphs 15, 16(a), 16(b), 16(d), 17, 18, 19(a), 19(c), 19(d), 20, 21, 22 and 23 of the orders made by the primary judge on 19 May 2021 be set aside and in lieu thereof it be ordered that:
(a) within 28 days of these orders, the First Appellant (CFMMEU) pay to the Commonwealth of Australia a pecuniary penalty of:
(i) $190,000 for its contravention of s 47(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) on 25 January 2019; and
(ii) $150,000 for its contravention of s 54 of the BCIIP Act on 31 January 2019 and 1 February 2019.
(b) within 90 days of these orders, the Second Appellant (Mr Kera) pay to the Commonwealth of Australia a pecuniary penalty of $35,000 for his contravention of s 47(1) of the BCIIP Act on 25 January 2019.
(c) within 90 days of these orders, the Third Appellant (Mr Michael Greenfield) pay to the Commonwealth of Australia a pecuniary penalty of:
(i) $25,000 for his contravention of s 47(1) of the BCIIP Act on 25 January 2019; and
(ii) $18,000 for his contravention of s 54 of the BCIIP Act on 31 January 2019 and 1 February 2019.
(d) within 90 days of these orders, the Fourth Appellant (Ms Mallia) pay to the Commonwealth of Australia a pecuniary penalty of $15,000 for her contravention of s 47(1) of the BCIIP Act on 25 January 2019.
(e) within 90 days of these orders, the Fifth Appellant (Mr Byrnes) pay to the Commonwealth of Australia a pecuniary penalty of $3,500 for his contravention of s 47(1) of the BCIIP Act on 25 January 2019.
(f) each of the pecuniary penalties required to be paid by Mr Kera, Mr Michael Greenfield and Ms Mallia by these orders, shall be paid by that person personally in that he or she shall not, whether before or after the payment of the penalty:
(i) seek to have or encourage the CFMMEU in any way whatsoever, directly or indirectly, to pay him or her or for his or her financial benefit in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part; and
(ii) accept or receive from the CFMMEU in any way whatsoever, directly or indirectly, any money or financial benefit referable to the payment of the penalties, whether in whole or in part.
3. Within seven days of these orders, each party file and serve a written submission (of no more than three pages) on costs.
4. Within 14 days of these orders, each party file and serve any responding written submission (of no more than two pages) on costs.
5. Subject to further order, the issue of costs be dealt with on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Michael Greenfield and the Union appeal against those penalties. In summary, they make the following contentions:(a)by grounds 14-16 of the amended notice of appeal, they contend that the penalties were imposed not only upon the basis of the admitted contravention (applying undue pressure as proscribed by s 54(1)), but also upon a more serious basis that was not pleaded or admitted, namely intention to coerce; further, they contend that there was no evidence of Michael Greenfield making, as found, “overbearing threats”; this is sought to be countered by the Commissioner’s notice of contention to the effect that, even if this error did occur, the penalties were nonetheless open to be imposed in the exercise of the penalty discretion;(b)by ground 22, they contend that there was no evidence that the contravening conduct was, as found by the primary judge, motivated by a desire by the Union not to run the risk of losing its appeal to the Full Bench of the Fair Work Commission regarding approval of the proposed Union EBA; and(c)by ground 28, they contend that the primary judge failed to take into account, as a mandatory relevant consideration under s 81(6)(b), that no loss or damage was suffered by Botany Cranes.Cooperation discount In the course of imposing the penalties summarised above, the primary judge found as follows in relation to the co-operation by the appellants at [114]:The Union is well-resourced and financially substantial, as is the branch. In pecuniary penalty proceedings, the Union frequently does what occurred in this proceeding; namely, agree facts so that the Court can impose penalties without requiring witnesses, including not only the persons adversely affected by contravening conduct but also the officials and members of the Union who engaged in that conduct, to give evidence. I accept that this has a benefit in avoiding the persons affected by the contravening conduct from having to give evidence in Court. But, in this case, that benefit occurred only after extensive interlocutory processes, in circumstances where, as the agreed facts, including the subpoenaed police video, revealed, there was no real prospect of a defence to the allegations of the contraventions on 25 January 2019, except perhaps as to the identity of the organiser, given what appeared to be Mr Kera’s role. By grounds 25 to 27, the appellants contend that the primary judge erred in this assessment of their co-operation by failing to take into account the public benefits of admissions and co‑operation, by taking into account an irrelevant consideration that there was no real prospect of a defence to the 25 January 2019 contraventions, and by failing to take into account as a relevant consideration that the resolution of the contraventions post-25 January 2019 were not the subject of police video or other objective evidence.Personal payment orders Additionally, the primary judge ordered that all of the penalties ordered to be paid by Mr Kera and Ms Mallia, $65,000 of the penalties to be paid by Michael Greenfield, and $3,500 of the penalties to be paid by Mr Byrnes, be paid by them personally without seeking or accepting any contribution by the Union. In the case of Mr Byrnes, this order was not sought by the Commissioner.