Cruse v Construction, Forestry, Mining and Energy Union - [2009] FCA 787

FEDERAL COURT OF AUSTRALIA
Cruse v Construction, Forestry, Mining & Energy Union [2009] FCA 787
INDUSTRIAL LAW – penalty hearing – admitted contraventions of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) – agreed penalty – relevant considerations in assessing appropriateness of agreed penalty
Building and Construction Industry Improvement Act 2005 (Cth) ss 38, 49, 69
Crimes Act 1914 (Cth) s 4AA
Duffy v Construction, Forestry, Mining & Energy Union (No 2) [2009] FCA 299, referred to
Stuart-Mahoney v Construction, Forestry, Mining & Energy Union [2008] FCA 1426, referred to
Temple v Powell (2008) 169 FCR 169, referred to
Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72, applied
WARREN CRUSE v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and NOEL WASHINGTON
VID 800 of 2008
MARSHALL J
29 JULY 2009
HOBART (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 800 of 2008

BETWEEN:
WARREN CRUSE
Applicant

AND:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

NOEL WASHINGTON
Second Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

29 JULY 2009

WHERE MADE:

HOBART (HEARD IN MELBOURNE)

THE COURT DECLARES THAT:
1.On 6 October 2006, each of the respondents contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (“the Act”) by engaging in unlawful industrial action.

THE COURT ORDERS THAT:
1.A penalty of $10,000 is imposed on the first respondent for contravening s 38 of the Act.
2.A penalty of $5,000 is imposed on the second respondent for contravening s 38 of the Act.
3.The penalties imposed on the respondents are to be paid into the Consolidated Revenue Fund on or before 28 August 2009.
4.The proceeding is otherwise dismissed.
5.Each party bear his or its own costs in relation to the proceeding.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 800 of 2008

BETWEEN:
WARREN CRUSE
Applicant

AND:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

NOEL WASHINGTON
Second Respondent

JUDGE:

MARSHALL J

DATE:

29 JULY 2009

PLACE:

HOBART (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

The applicant seeks declarations that each of the respondents contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (“the Act”). The applicant also seeks pecuniary penalties for the contraventions of s 38 of the Act.
The applicant previously sought declarations and penalties in respect of alleged contraventions of ss 44(1) and 49(1) of the Act by the respondents but discontinued these claims prior to the hearing.
The applicant is an Australian Building and Construction Commission inspector appointed pursuant to s 57 of the Act and is eligible to bring this proceeding pursuant to s 49(6) of the Act. The second respondent is a member of the first respondent (“the Union”) and the senior vice-president…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 787
Decision Date: 29 July 2009

CaseChat Overview and Summary

The case of Cruse v Construction, Forestry, Mining and Energy Union involved the applicant, Cruse, and two respondents, the Construction, Forestry, Mining and Energy Union and the second respondent. The dispute centred around alleged contraventions of the Workplace Relations Act 1996 (Cth) by the respondents. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the penalties agreed upon by the parties were appropriate in all the circumstances. Both parties had agreed that the appropriate penalties were $10,000 for the Union and $5,000 for the second respondent. The Court needed to consider if these penalties were within the permissible range and whether they were suitable given the nature of the contraventions. The relevant considerations included the nature and extent of the conduct, the circumstances of the contravention, the impact of the contravention, and the need for compliance, deterrence, and contrition.

The Court found that the respondents’ conduct, which included a brief stop work meeting and a short-lived ban on crane work, constituted a single course of conduct leading to a single contravention. The ban was deliberately designed to pressure the employer into entering a collective agreement and was motivated by occupational health and safety concerns. Given the minimal disruption and impact of the contraventions, the agreed penalties were deemed appropriate. The Court emphasised that the penalties must fall within the permissible range, and while the Court might have imposed different figures, the agreed penalties were not inappropriate as long as they were within the acceptable bounds. The Court thus concluded that the penalties agreed upon by the parties were appropriate in all the circumstances.

The Court imposed a penalty of $10,000 on the first respondent and $5,000 on the second respondent, to be paid into the Consolidated Revenue Fund by a specified date. The proceeding was dismissed in all other respects, and each party was ordered to bear its own costs.

Orders

Orders of the court

1. A penalty of $10,000 is imposed on the first respondent for contravening s 38 of the Act.

2. A penalty of $5,000 is imposed on the second respondent for contravening s 38 of the Act.

3. The penalties imposed on the respondents are to be paid into the Consolidated Revenue Fund on or before 28 August 2009.

4. The proceeding is otherwise dismissed.

5. Each party bear his or its own costs in relation to the proceeding.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

The applicant and respondents agree that the appropriate penalties are $10,000 for the Union and $5,000 for the second respondent. These figures represent 9.09 per cent and 22.73 per cent of the applicable maxima respectively.CONSIDERATION In light of the parties’ agreement as to the appropriate penalties to be imposed, the relevant question for this Court is whether the agreed penalty is “appropriate in all the circumstances”; see Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 per Branson, Sackville and Gyles JJ at [51]. The penalties are not inappropriate merely because I would have imposed different figures. Rather, the penalties agreed by the parties must be within the permissible range of penalties for such a contravention; see Mobil Oil at [51] and [54]. The Court must still consider the factors relevant to the contraventions by the respondents to determine the permissible range of penalties for the contraventions. The factors relevant to a penalty for a contravention of the Act have been thoroughly discussed by this Court; see, eg, Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J at [40] and citations therein. As Tracey J observed in Stuart-Mahoney at [40], the relevant considerations include:·The nature and extent of the conduct which led to the breaches.·The circumstances in which that relevant conduct took place.·The nature and extent of any loss or damage sustained as a result of the breaches.·Whether there had been similar previous conduct by the respondent.·Whether the breaches were properly distinct or arose out of the one course of conduct.·The size of the business enterprise involved.·Whether or not the breaches were deliberate.·Whether senior management was involved in the breaches.·Whether the party committing the breach had exhibited contrition.·Whether the party committing the breach had taken corrective action.·Whether the party committing the breach had cooperated with the enforcement authorities.·The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements.·The need for specific and general deterrence. The respondents’ conduct consisted of a brief stop work meeting and a short-lived ban on crane work. Crane work at the Site was only affected for 90 minutes and during this time the Sergi employees continued to perform other work at the Site. The ban and stop work meeting did not significantly disrupt work at the Site and any loss or damage caused was minimal. Given the brief period of time in which the ban and stop work meeting occurred, and the interrelationship between the two events, it is appropriate to regard the stop work meeting and subsequent ban as a single course of conduct giving rise to a single contravention; see s 36(3) of the Act. The ban and meeting occurred in response to occupational health and safety concerns regarding crane work at the Site. Nevertheless, the respondents concede that the ban was motivated by the desire to pressure LCR Lindores into entering into a collective agreement with the Union. The contraventions of the Act were deliberate, being designed to pressure entry into a collective agreement and to address the health and safety concerns.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 800 of 2008

JUDGE:	MARSHALL J
DATE OF ORDER:	29 JULY 2009
WHERE MADE:	HOBART (HEARD IN MELBOURNE)

JUDGE:	MARSHALL J
DATE:	29 JULY 2009
PLACE:	HOBART (HEARD IN MELBOURNE)