Cruse v CFMEU
[2007] FMCA 1873
•14 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CRUSE v CFMEU & ANOR | [2007] FMCA 1873 |
| INDUSTRIAL LAW – Alleged contravention of Building and Construction Industry Improvement Act 2005 – agreed statement of facts – consideration of matters relevant to imposition of penalty. |
| Building and Construction Industry Improvement Act 2005, ss.36, 36(1)(g)(i), 36(2), 37, 38, 48, 48(2), 48(2)(c), 69 Workplace Relations Act 1996 |
| Canturi v Sita Coaches Pty Ltd (ACN 004 444 900) [2002] FCA 349 Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 224 ALR 467 |
| Applicant: | WARREN CRUSE |
| First Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (“CFMEU”) |
| Second Respondent: | COLIN STEWART |
| File number: | MLG 1074 of 2006 |
| Judgment of: | Burchardt FM |
| Hearing date: | 11 October 2007 |
| Date of last submission: | 18 October 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 14 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. O'Grady |
| Solicitor for the Applicant: | Blake Dawson Waldron |
| Counsel for the Respondents: | Mr C. Dowling |
| Solicitor for the Respondents: | Jesse Maddison |
THE COURT DECLARES AND ORDERS:
DECLARES:
That each of the Respondents has contravened s.38 of the Building and Construction Industry Improvement Act 2005.
That the First Respondent has contravened clauses 14 and 27 of the Roche Mining/CFMEU Murray Basin Development Project Construction Sites Agreement for the reasons set out in the Reasons for Judgment herein.
ORDERS:
That a penalty of $35,000.00 be imposed upon the First Respondent, CFMEU.
That a penalty of $7,000.00 be imposed upon the Second Respondent, Colin Stewart, but Mr Stewart is not obliged to pay half of the said penalty if for a period of twelve months from the date of these Orders, he has not been adjudged to have breached any provision of the BCII Act or the WR Act in so far as those breaches relate to the Building and Construction Industry.
That the penalties in Orders 2 and 3 be paid into the Consolidated Revenue Fund.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1074 of 2006
| WARREN CRUSE |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
First Respondent
| COLIN STEWART |
Second Respondent
REASONS FOR JUDGMENT
At about 6:45 a.m. on 22 September 2005 a bus transporting about ten employees of Roche Mining (JR) Pty Ltd ("RMJR") arrived at a mineral sand separation plant at Burgins Road, Hamilton ("MSP site"). The driver and passengers of the bus said that they were involved in a near miss with a train at a railway crossing nearby, on Burgins Road.
As a result of concerns about the safety of the railway crossing, the three hundred or so employees at the MSP site withdrew their labour for part of that day, all of the next day, 23 September 2005, and for part of the next two working days, which were 27 (all day) and 28 (half the day) September 2005.
The Applicant maintains that the conduct of the Respondents, who were involved with the strike, contravened the Building and Construction Industry Improvement Act 2005 ("BCII Act") and the relevant applicable certified agreement, and that penalties should be imposed on them for that breach.
The Respondents do not admit contravention of the BCII Act. Rather, they make no submissions in that regard. The Respondents' submissions were primarily concerned with the question as to what should arise by way of penalties in the event that contraventions are made out.
It seems to me that the issues that arise for consideration are:
a)as a preliminary matter, whether the Respondents can be permitted to rely upon the facts set out in their outline of submissions to the extent that those asserted facts differ from the statement of agreed facts;
b)whether there has in fact been a breach of the BCII Act and/or the certified agreement by the Respondents;
c)if there has been such a breach, should penalties be imposed upon the Respondents; and, as part of that consideration,
d)what approach should the Court take to any prior breaches of other legislation or the BCII Act?
The Respondents' asserted facts
As I have said, the parties have given to the Court a statement of agreed facts for the purposes of this proceeding. The Applicant submitted that that was the sole evidentiary basis upon which the Court could proceed, save of course from the affidavit material filed by both parties.
The Respondents' submission was that their outline of submissions was not seeking to put anything inconsistent with the agreed facts.
I accept the submission from the Applicant that the Respondents' outline of submissions does in part seek to put a gloss upon the facts asserted in the agreed statement of facts that the agreed statement of facts cannot sustain.
It is clear that the evidence that is before me is the agreed statement of facts and the affidavits of Mr Cruse, Mr Last (an employee of RMJR), and of Mr Kingham, Victorian Secretary of the CFMEU. I will approach this case on the basis that that is the evidence formally proved before me.
I further accept that, save insofar as it consists of admissions against interest and evidences state of mind, Mr Stewart's remarks on the radio, constituting exhibit WC9 to Mr Cruse's affidavit, are not admissible as to the asserted facts of the alleged near‑miss detailed on page 3 of that exhibit.
Was there a breach of the BCII Act?
It is, self‑evidently, for the Applicant to prove that the Act has been contravened. The Applicant seeks a declaration that this is the case and seeks that civil penalties be imposed upon the Respondents for it. That is a matter that needs to be established within what might be described as orthodox application of the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) (see Ryan J in Canturi v Sita CoachesPty Ltd (ACN 004 444 900) [2002] FCA 349 at [44]).
A difficulty that presents itself, to which I directed both counsel during the hearing, is that the way in which the parties have conducted this proceeding is in part somewhat unhelpful.
The Applicant submits that the breaches of the legislation are clearly made out on the statement of agreed facts. The Respondents do not directly reject that assertion. The Respondents have adopted the position that they make no submissions in that regard and leave the matter to proceed, as it were, on an undefended basis.
Given some of the disagreements between the parties as to what actually occurred and why, this is not altogether helpful.
While I can readily understand why the parties do not wish to have a long drawn‑out proceeding to establish exactly what the true facts are - and indeed they are to be commended for saving the Court's and their own time and resources for producing an agreed position - I am still far from comfortable with being asked to rule on what is, in a strict sense, a contested matter, in the absence of having the necessary tools of evidence and cross‑examination fully to enable me to perform that task. Nonetheless, the parties have elected to proceed in this way.
Given that the Respondents do not elect to take a truly adversarial position, I believe I am entitled to be more confident in my approach than I would be otherwise. Although this is plainly not a Jones v Dunkel case, the position the Respondents adopt has something of that quality.
Indeed the submissions the Respondents make all implicitly accept that there have been contraventions of the legislation, albeit that they wish to put the matter in a different light to the way in which the Applicant puts it. Nonetheless, I repeat that it is for the Applicant to make out his case.
Facts of the case
I therefore turn to the facts in the case. It should be noted initially that there is no issue about what might be said to be the purely formal issues of Mr Cruse's capacity to seek the orders and declarations he seeks.
RMJR was at all times bound by a certified agreement which covered the Respondents and employed a number of CFMEU members on the project at the MSP site.
Mr Stewart was at all times an organiser of the CFMEU.
A large proportion of the workers who worked at the MSP site lived temporarily in a camp near the site. They were transported by buses to the site and the buses had to travel along Burgins Road across the railway crossing, to which I have referred.
At about 6:45 a.m. on 22 September 2005 a bus transporting about 10 RMJR employees from the camp arrived at the site. The driver and the passengers of the bus said that they were involved in a near‑miss with a train at the crossing. While there is no agreement (or proof) as to whether that assertion was correct, counsel for Mr Cruse accepted that the workers in the bus had a genuine concern about their safety.
A mass meeting of all employees on the site was held at about
7:00 a.m., a total of about three hundred workers in all.
At about 8:30 a.m. a delegation comprising union shop stewards and three Occupational Health and Safety (“OH and S”) representatives met with management at the site. There was discussion about what could be done to improve the crossing. The delegation told management that the workers were not going to return to work until measures were put in place that they thought were suitable. A number of options were discussed and potential solutions raised. The options are set out at paragraph 14 of the agreed statement of facts.
There was some dispute before me as to the extent to which the various options were in fact put in place, but it is important, in my view, to note that following a visit to the level crossing site by representatives of the parties, including the shop stewards and the OH and S representatives, a Mr Schier of RMJR spoke to the workers and explained what RMJR was prepared to do and what it was not prepared to do. He also informed them of what steps might be taken by third parties to improve the matter.
At paragraph 20 and following of the agreed statement of facts it says:
“After Schier addressed the workers, the OH and S representatives addressed the workers. The OH and S representatives accepted that Roche Mining had done what it could that afternoon to make the crossing safer. The OH and S representatives agreed that it was safe for the workers to return to work. The OH and S representatives understood that RMJR would continue to actively pursue the upgrading of the Burgins Road level crossing with Iluka, VicTrack and the Council.
Schier was then asked to leave the meeting so that workers could talk amongst themselves. Whilst no vote was taken, the workers accepted what Schier had put to them, on condition that RMJR continue to actively pursue the upgrading of the Burgins Road level crossing with Iluka, VicTrack and the Council.”
This view was communicated to Mr Schier and the workers returned to work at 1:30 p.m. after their lunch break and continued working until the end of the working day.
It should be noted at this point that the steps to be taken by Iluka, VicTrack and the Council could not, on any view, have given rise to any action that day or in any immediate – i.e. within a couple of days - period. Some steps were taken that day, as had been indicated by
Mr Schier.
On that evening, after the end of the normal working day at 5:00 p.m., a number of CFMEU members visited Mr Stewart at his home. They told him that they were not satisfied with the outcome of the day.
Mr Stewart went to the site on the next morning, 23 September, and met with CFMEU members who were employees of a subcontracting company on the site and other members of the union on site.
After this, the shop stewards of the other unions asked Mr Stewart to attend a meeting of the shop stewards of the CFMEU and the other unions. At that meeting the shop stewards asked Mr Stewart to attend a mass meeting of the workers.
Immediately after this, all the workers at the site stopped working and gathered for a mass meeting. Mr Stewart was the only union official at the mass meeting. At the mass meeting Mr Stewart heard the comments of those present and saw and observed the vote which was in favour of engaging a strike. He did not take steps to persuade those present at the mass meeting against the strike taking place. Only forty of approximately two hundred and eighty eight workers at the site were members of the CFMEU.
After the mass meeting Mr Stewart led a delegation of union representatives to Mr Schier's office. The delegation informed management that the workers at the site were withdrawing their labour until 4 October 2005.
It is conceded (paragraph 33 of the statement of agreed facts) that the conduct of the RMJR employees described above was also the conduct of the CFMEU.
The date and the duration of the strike was not referable to any rectification works on the crossing but was rather sufficient to permit all workers to have a continuous period of ten days off site. Mr Schier and another representative of management Mr Last, who was present by phone, asked Mr Stewart and the other union representatives present in the meeting to withdraw the strike. Mr Last told Mr Stewart and the other representatives that the strike was in breach of the relevant certified agreements.
Mr Stewart acknowledged that the strike was in breach of the certified agreements but said that the strike would go ahead in any event.
Mr Last and Mr Schier asked Mr Stewart to call the strike off, but
Mr Stewart said the workers would be taking industrial action and would not return until Tuesday, 4 October 2005.
It is conceded (paragraph 38 of agreed statement of facts) that
Mr Stewart was involved in the conduct by RMJR employees referred to above and that the conduct of the employees was authorised by
Mr Stewart.
The strike continued and the employees did not perform any work at the site from about 8:00 a.m. on 23 September 2005.
Following a hearing in the Australian Industrial Relations Commission ("AIRC") on 27 September 2005 the workers returned to work at
1:30 p.m. on 28 September 2005.
The CFMEU assisted and arranged for relevant workers to return to work in compliance with the certified agreement at the AIRC and thereafter itself initiated proceedings in the AIRC to ensure safety rectification work was undertaken. In the ultimate, the dispute resolution procedure was varied to attempt to ensure there were no repeats of the events of 23 September 2005.
As there was no work scheduled to be performed on 24, 25 or 26 September 2005, the workers returned to work, as I have said, at about 1:30 p.m. on 28 September 2005.
Although the above recitation refers to certain particular paragraphs of the agreed statement of facts, almost all of it is in fact a repetition, or, at best, a paraphrase of the agreed statement.
Breaches of the BCII Act
It is conceded at paragraph 44 of the statement of agreed facts that in relation to the dispute the CFMEU:
a)did not follow the steps detailed in clause 14 of the RMJR agreement; and
b)did not ensure that work continued as normal whilst the steps in clause 14 of the RMJR certified agreement were to be followed.
RMJR has claimed that the direct cost as a result of the strike was about $330,000.00, but the CFMEU disputes that this is an accurate assessment.
Section 38 of the BCII Act states that:
“A person must not engage in unlawful industrial action.”
As the Applicant submits (paragraph 3 – Applicant’s Outline of Submissions) for the purposes of the prohibition contained in s.38 of the Act:
a)only “building industrial action”, as defined in s.36, can be “unlawful industrial action” as defined in s.37;
b)the building industrial action will only be unlawful industrial action if it is:
i)“industrially‑motivated action”, under s.36 of the Act,
ii)“constitutionally‑connected action”, under s.36 of the Act, and
iii)not “excluded action”, under s.36 of the Act.
While I bear steadily in mind that s.38 is a grade A civil penalty provision and that this case is required to be determined in the light of Briginshaw principles, there is no doubt in my mind that the Applicant is correct to say that the Respondents breached the BCII Act.
The employees withdrew their labour on 23 September 2005 and did not return to work until about 1:30 p.m. on 28 September 2005, a period of about two and a half working days.
I accept all of the matters set out in paragraphs 7, 8 and 9 of the Applicant's outline of submissions. For the reasons there set out, the strike:
·was building industrial action, under s.36 of the Act;
·was industrially‑motivated action, under s.36 of the Act; and
·was constitutionally‑connected action, under s.36 of the BCII Act.
It should be noted that the Respondents did not take issue with any of those propositions, either directly in opposition to the application or in the way they ran their case in respect of the quantification of any penalties.
I also accept that Mr Stewart was involved in the unlawful industrial action by virtue of s.48(2) of the BCII Act. I note (paragraph 38 of the statement of agreed facts) that Mr Stewart was involved in the conduct by RMJR employees and that their conduct was authorised by Mr Stewart.
I accept that the conduct set out in the agreed statement of facts shows that Mr Stewart was directly or indirectly knowingly concerned in or party to the contravention (s.48(2)(c)). Mr Stewart was closely involved in the strike which burst out only after CFMEU members went to see him on the evening of 22 September 2005. Before that, the matter had resolved to a point where workers had resumed work and had been, I infer, at least in some cases, taken home over the railway crossing.
I find to the degree required by Briginshaw principles that the strike was one in which Mr Stewart was directly concerned within the meaning of the terms of s.48(2)(c) of the Act.
I also accept the Applicant's submission that it can be inferred from
Mr Stewart's failure to take steps to persuade those present at the mass meeting against the strike taking place (paragraph 30(a) of the statement of agreed facts), and indeed from what he said in the radio interview, which is exhibit 9 to Mr Cruse's affidavit, that he meets the test of being involved in the unlawful industrial action and the contravention.
Furthermore, given what he said at the time and the state of mind it discloses, I have no difficulty in inferring that Mr Stewart's failure to address the mass meeting to seek to persuade the employees not to engage in the strike arose not out of some rectitude as an employee of the workers but out of an active involvement in the intention that work be ceased.
Thus I find that Mr Stewart was involved in the unlawful industrial action, pursuant to s.48 of the BCII Act.
It is effectively conceded, in my view, that the unlawful industrial action engaged in by the employees was also that of the CFMEU
(see paragraph 33 of the agreed statement of facts).
A matter that arises here is also relevant as to the issue of penalty. That issue is the question of the health and safety exemption contained in s.36(1)(g)(i) of the BCII Act. It should be noted that in this regard the burden of proving that subparagraph (1)(g) applies lies upon the Respondents (see s.36(2) of the BCII Act).
It is immediately plain that since the Respondents have not sought actively to assert that this exemption applies to them the exemption itself cannot apply.
In any event, I am satisfied that a proper construction of the statement of agreed facts leads to the conclusion that the employees’ withdrawal of their labour was not such as to give rise to the s.36(1)(g) exemption. The evidence is that the passengers of the bus said that they were involved in a near‑miss with a train at the Burgins Road crossing on the morning of 22 September 2007 (paragraph 11 of the agreed statement of facts). There is no evidence before me that enables me to decide whether or not what the passengers in the bus said was true or untrue.
What is clear is that the OH and S representatives agreed that it was safe for the workers to return to work after the various steps set out in paragraphs 14 to 19 of the agreed statement of facts had occurred (see paragraph 20 of agreed statement of facts).
It is also clear that following communication of this to the workers the workers accepted what Mr Schier had put to them, on condition that RMJR take further steps, which could not have been taken that day or have produced any immediate results (paragraph 21 of the agreed statement of facts).
The workers returned to work at 1:30 p.m. after their lunch break and continued working until the end of the working day at 5:00 p.m. (paragraph 22 of the agreed statement of facts). The workers left the site that day, and at least some of them must have gone over the railway crossing (paragraph 24 of the agreed statement of facts).
In these circumstances, I find that the workers were not, in withdrawing their labour, motivated by "a reasonable concern by the employee about an imminent threat to his or her health or safety" (s.36(1)(g)(i)).
It therefore follows that a contravention has been made out.
Should penalties be imposed for the breaches; and, if so, in what quantities?
The Applicant submitted that a penalty of up to $60,000.00 should be imposed on the First Respondent (with the Court determining the amount) and $12,000.00 upon Mr Stewart, subject to conditions.
The Respondents submitted that no penalty should be imposed and declaratory relief alone should be granted.
The Applicant submitted that both specific and general deterrents were appropriate here. In Leighton Contractors Pty Ltd v CFMEU [2006] WASC 317 (“Leighton Contractors”), another case involving breach of the BCII Act by the First Respondent, Le Miere J said, at [74]:
“The penalties should be sufficiently high to deter repetition by the contravener and by others who might be tempted to engage in contravening conduct. Deterrence is the primary objective of penalties.”
In Australia Competition and Consumer Commission v IPM Operations Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11 at [66], Young J said:
“Deterrence has two aspects: specific deterrence and general deterrence. Specific deterrence refers to the need to deter the contravening party from a further contravention of the TPA. General deterrence refers to the need to deter others in the community by showing the seriousness with which the court would consider such contraventions: see Leahy (No.3) at 308 [35] per Goldberg J. For a penalty to achieve these objectives, it must be imposed at a meaningful level, consistent with the other considerations that must be taken into account in determining the appropriate level of penalty.”
I also note that the tenor of the judgment of Jessup J in the Full Federal Court's decision in Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 (“Ponzio”) suggests that penalties ought be imposed for breaches of this kind, even though his Honour was dealing with a different provision of another Act (see decision of Jessup J at [141] ‑ [145], particularly [144]).
Likewise, Merkel J in Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at 487(72) said:
“It may be that breaches by unions and employers of industrial legislation from time to time have been accepted as part of the give and take of industrial disputation. However, in recent years industrial legislation has increasingly codified and prescribed what is acceptable, and what is unacceptable, industrial conduct. The legislature has, over time, also moved to increase the penalties that may be imposed in respect of unlawful industrial conduct. In my view, any light‑handed approach that might have been taken in the past to serious, wilful and ongoing breaches of the industrial laws should no longer be applicable.”
Relevant considerations to the assessment of penalty have been considered in a number of cases such as CFMEU v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 (“Coal & Allied”) at 728; and TPC v CSR Ltd (1991) ATPR 41‑076 at 52, 152‑153; Furlong v Australian Workers Union [2007] FMCA 443 (“Furlong”) at [7]-[10]; and Carr v CEPU [2007] FMCA 1526 at [6] – [8] (“Carr”). From those authorities, I would distil the following as being relevant here:
a)the nature of the unlawful industrial action which occurred;
b)the effect of that industrial action;
c)the extent to which dispute resolution procedures were followed, or not;
d)whether any applicable orders of a Court or Industrial Tribunal had been abided by;
e)the deliberateness of the contraventions and the period over which they extended;
f)the Respondents' past record of contraventions of the statute;
g)the extent of cooperation with regulatory authorities and any acknowledgment of wrongdoing;
h)the financial position of each of the Respondents;
i)the likely deterrent effect of any civil penalty imposed; and
j)the need to give effect to the statutory purposes underpinning the BCII Act and the relevant part of the Workplace Relations Act1996 ("WR Act").
Here, relevant matters include the following:
a)the strike occurred in direct breach of the applicable certified agreement and in circumstances where Mr Stewart and the employees and the union all knew that this was the case. The provisions of the certified agreement which were breached were dispute resolution procedures expressly designed to avoid this sort of strike;
b)the steps taken by the company in respect of the perceived danger were found acceptable by the representatives of the unions, including the CFMEU, on the day;
c)the only other matters that remained to be done were otherwise either beyond the capacity or control of RMJR or it had already been indicated they would not be done (for example, the placement of employees with stop/go signs);
d)the failure of Mr Stewart to take any active steps to either prevent or call off the strike;
e)the fact that it was only after RMJR sought orders from the AIRC that the strike was called off;
f)the CFMEU appears to have had the capacity to ensure that its members returned to work on short notice, because it did so after the acceptance of the recommendation of the AIRC;
g)RMJR was essentially an innocent victim of the strike. The real complaint of the union and Mr Stewart was with those authorities who had control over the level crossing; and
h)on any view, the strike cost RMJR money and disruption. There is no formal proof that it cost $300,000.00 or any other figure, but the loss of two and a half day's labour by three hundred employees must necessarily have involved a substantial financial impost. I regard the submission of the Respondents, that RMJR's loss is not a matter of any moment, as doing them no credit.
I accept the submission of the Applicant that the contraventions were deliberate in nature and in defiance of the law. There is no basis upon which the justification of the action on the basis of health and safety grounds can be maintained.
That is not to say however that the concerns of employees at the alleged near‑miss are irrelevant. I do not accept that the decision of Jessup J in Ponzio goes so far. In Ponzio, his Honour was analysing a different statute in slightly different circumstances. What his Honour said there was that if the health and safety exemption was not made out then it was not open to the Court to dismiss the matter entirely, as had been the case at first instance.
It is another thing to say that a sincerely‑held concern as to safety issues, while not sufficient to justify the s.36(1)(g) exemption, is not relevant. In my view, the concerns of workers about safety is a relevant matter, but one that one needs to approach bearing in mind the agreed statement of facts and the history of the initial response on the
22 September 2005.
I accept the submissions of the Respondents that the unlawful industrial conduct was not part of an industrial campaign. It is clear that it was, on the evidence, conduct that flowed from a genuine concern about health and safety on the part of the employees and that neither the CFMEU nor Mr Stewart coerced the employees to engage in the conduct.
The Applicant seeks to rely upon the imposition upon the CFMEU of penalties for prior contraventions of similar provisions in the BCII Act and the WR Act. He refers to cases in which this has occurred at paragraph 26 of his outline of submissions.All of those cases, apart from Leighton Contractors, involved legislation other than the BCII Act.
In Leighton Contractors, by agreement, the Supreme Court of Western Australia imposed a penalty of $90,000.00 on the CFMEU and $30,000.00 on the CFMEU Western Australia branch following a series of stopwork meetings and short periods of industrial action, including a single day of industrial action to attend a CFMEU rally.
In my opinion, the other contraventions are not properly to be taken into consideration. That is what Le Miere J found in Leighton Contractors at [67], citing the decision of Branson J in Coal & Allied at page 232. Those decisions were adopted and applied by Lucev FM in Carr at [22].
In my opinion, the Respondents are correct to say that I should only have regard to the single contravention found by Le Miere J in Leighton Contractors against the federal union. I ignore the contravention by the separately‑registered state union, Western Australia branch, of the First Respondent in that case; and I note that there is no prior contravention alleged against Mr Stewart.
I note further that the financial position of the First Respondent appears to be relatively sound, although I have no information about
Mr Stewart's circumstances.
I note and give proper credit to the Respondents for the cooperation revealed by their submission of the agreed statement of facts, which has saved the Court what would otherwise have been a lengthy trial.
I note also that on the affidavit of Mr Kingham the union has taken steps to train its officials. From Mr Kingham's affidavit (paragraphs 7 and 8) much of the training undertaken has been dedicated to the new definition of industrial action under the BCII Act and the consequences arising from the involvement of any officials with industrial action by the CFMEU's members. The seminar was also a response to incidents like those which led to the current proceedings. Mr Kingham went on to say, "The union was concerned that our officials be made aware of the potentially serious consequences to their actions under the BCII Act."
As I observed during the hearing, there is nothing in Mr Kingham's affidavit that gives rise to any suggestion of contrition on the part of the Respondents. Rather, however, it indicates the desire to avoid repetition because of the serious consequences to which such conduct may give rise. I give the CFMEU proper credit, however, for the training that they have undertaken and note that it may have some effect in relation to the specific deterrence issue.
Ultimately, there is no precise methodology in the quantification of penalty. The parties agree that the totality principle should apply.
One must approach other cases, all of which necessarily turn on their own facts, with some caution. In my opinion, the most relevant cases are Leighton Contractors, which involved a more extensive set of interruptions and involved an agreed penalty of $90,000.00 for the union; Carr, which involved a one‑day strike and penalties of $11,000.00 for the union and $8,000.00 for the relevant officer; and Furlong, which involved a two‑day strike and penalties of $40,000.00 with $20,000.00 suspended for the union, and $4,000.00 each for the relevant officers.
I have had regard to all of the relevant circumstances of the case and bear steadily in mind the reasons that the BCII Act was brought into existence and its objects.
Taking everything into consideration, in my opinion it is appropriate that the CFMEU be the subject of a penalty of $35,000.00. This was a strike that was somewhat longer than that in Furlong, two and a half days as opposed to two days, but it was influenced in part by concerns over personal safety, which, while insufficient to trigger the statutory exemption, are accepted to have been genuine.
In my view, it is a penalty that should deter both the CFMEU and others from breaching this legislation. It is not appropriate to suspend any part of the amount, in light of the previous infractions of the legislation which gave rise to the Leighton Contractors case.
The circumstances of Mr Stewart, on the other hand, are more serious than those of the officers concerned in Furlong. In this case
Mr Stewart knowingly proceeded in direct contravention of the agreement that he knew was binding upon his members and upon his own union.
In my view, the appropriate penalty to be imposed should be $7,000.00. In this instance however I think, because of the mitigating factors to which I have referred and because it is Mr Stewart's first contravention, half of that sum should be suspended in the fashion that has been undertaken in other cases, including Furlong.
There will be declarations and orders accordingly.
Mr Cruse has sought costs in his originating application. I will hear the parties on this issue.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 14 November 2007
Key Legal Topics
Areas of Law
-
Administrative Law
Legal Concepts
-
Civil Penalty
-
Penalties
-
Consolidated Revenue Fund
10
8
2