INDUSTRIAL LAW – penalties – a single course of conduct – the totality principle – relevance of previous contraventions – punishment and deterrence – declaratory relief – pecuniary penalties
Welsh, M, “Civil Penalty Orders: Assessing the Appropriate Length and Quantum of Disqualification and Pecuniary Penalty Orders” (2008) 31 Australian Bar Review 96
Date of hearing:
11 October 2010
Place:
Sydney
Division:
FAIR WORK DIVISION
Category:
Catchwords
Number of paragraphs:
66
Counsel for the Applicant:
Mr I Neil SC with Mr E Young
Solicitor for the Applicant:
Bartier Perry
Counsel for the Respondents
Mr J H Pearce
Solicitor for the Respondents:
Taylor & Scott
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 436 of 2010
BETWEEN:
PETER DARLASTON Applicant
AND:
BRIAN PARKER First Respondent
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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AGLC
Darlaston v Parker (No 2) [2010] FCA 1382
Case
[2010] FCA 1382
Decision Date
CaseChat Overview and Summary
Darlaston v Parker (No 2) involved a dispute between the applicant, Darlaston, and several respondents, including Parker, who held positions within the Construction, Forestry, Mining and Energy Union. The applicant alleged that the respondents had contravened occupational health and safety laws by failing to comply with safety requests and obstructing work on a construction site. The case reached the court for determination of the legal issues concerning the contraventions and the imposition of appropriate penalties.
The court had to decide whether the respondents had indeed contravened the specified sections of the Workplace Relations Act 1996 and, if so, what penalties should be imposed. The court also needed to determine whether the contraventions constituted a "single course of conduct" for the purpose of penalty calculation. Additionally, the court considered the appropriate amount of penalties that would serve the purposes of punishment and deterrence while ensuring compliance with occupational health and safety laws.
The court found that the respondents had contravened the specified sections of the Workplace Relations Act 1996. It was concluded that the contraventions did not constitute a "single course of conduct", as the nature of the offences was different. The court assessed the penalties by considering factors such as the contested nature of the facts, the importance of ensuring compliance with occupational health and safety laws, and the degree of cooperation from the respondents. Based on these considerations, the court imposed penalties on each respondent, totalling amounts ranging from $2,500 to $15,000. The court also granted declaratory relief, clarifying the contraventions and confirming the respondents' liability.
In summary, the court determined that the respondents had contravened the Workplace Relations Act 1996 and imposed penalties accordingly. The court also granted declaratory relief, providing clarity on the contraventions and the respondents' liability.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Consideration has also been given to the need for unions to take responsibility for those who exercise statutory power within the scope of their employment and the need to fix an amount which brings home the importance of ensuring that those who exercise such power do so in accordance with law. CONCLUSIONS The penalties mentioned have been assessed by reference to those considerations which have been repeatedly cited in decisions such as Coal and Allied and Stuart-Mahoney. One general consideration taken into account when assessing these penalties was the fact that the facts and circumstances surrounding each allegation were fiercely contested. In making that observation, it may be accepted that a respondent need not accept all or any of the allegations which may be advanced against him; there is a right to have liability judicially determined. It may also be accepted, however, that a factor relevant to the exercise of discretion in the calculation of penalties (being a factor that may well operate to reduce a penalty that may otherwise have been imposed) is the extent to which a respondent cooperates with those who seek to enforce the law. It is thus concluded that penalties should be imposed as against:·the First Respondent, totalling $8,000;·the Second Respondent in the sum of $2,500;·the Third Respondent in the sum of $2,500;·the Fourth Respondent, totalling $7,500;·the Fifth Respondent in the sum of $15,000; and·the Sixth Respondent in the sum of $15,000.Pursuant to s 841(a), those penalties are to be paid to the Commonwealth. For the purposes of the present hearing as to the relief to be granted to the Applicant there was prepared a table of contraventions and penalties imposed in other cases. The penalties to be imposed in the present hearing have been reviewed in light of the table. It is concluded that the penalties to be imposed are amounts which effect an appropriate balance of all the considerations to be taken into account, including punishment and deterrence. Although consideration has also been given to the litany of cases set forth in that table as examples of other proceedings involving branches and divisions of the Construction, Forestry, Mining and Energy Union, the contraventions there involved were substantively different to the present contraventions. Those other cases have provided but limited assistance as to the quantum of penalties to be now imposed. The penalties imposed in the present case have been assessed by reference to the facts and circumstances of the current contraventions. It is further concluded that the Applicant is entitled to declaratory relief.ORDERS The Court declares that:1.The First, Second, Third, Fifth and Sixth Respondents contravened s 758(3) of the Workplace Relations Act 1996 (the Act) in that on 3 December 2008:(a)Lend Lease Development Pty Ltd (Lend Lease) was the occupier of at least so much of the premises at St Patricks Estate, Manly, New South Wales (the Premises) as relates to the facts of the present proceeding, within the meaning of s 758(3) of the Act.(b)The First Respondent was an officer and employee of the Fifth and Sixth Respondents within the meaning of s 826 of the Act.(c)The Second Respondent was an employee of the Fifth and Sixth Respondents within the meaning of s 826 of the Act.(d)The Third Respondent was an employee of the Fifth Respondent within the meaning of s 826 of the Act and a “member” of the Sixth Respondent.(e)The First, Second and Third Respondents were permit holders for the purposes of s 758(3) of the Act.(f)The First, Second and Third Respondents entered, and remained on, the Premises under an OHS law within the meaning of s 758(3) of the Act.(g)Before the First, Second and Third Respondents entered, and remained on, the Premises (as aforesaid) an employee of Lend Lease requested the First, Second and Third Respondents to comply with a requirement to undertake a site induction (the Induction Request).(h)The Induction Request was an occupational health and safety requirement that applied to the Premises within the meaning of s 758(3)(a) of the Act.(i)The Induction Request was a reasonable request within the meaning of s 758(3)(b) of the Act.(j)The First, Second and Third Respondents failed to comply with the Induction Request within the meaning of s 758(3)(c) of the Act.(k)The conduct of the First, Second and Third Respondents set out in (f) and (j) was conduct engaged in on behalf of the Fifth and Sixth Respondents within the scope of the First, Second and Third Respondents’ apparent authority.(l)By the operation of s 826(2) of the Act the said conduct of the First, Second and Third Respondents is taken for the purposes of the Act to have been engaged in also by the Fifth and Sixth Respondents.2.The Fourth, Fifth and Sixth Respondents contravened s 758(3) of the Act in that on 3 December 2008:(a)Lend Lease was the occupier of at least so much of the Premises as relates to the facts of the present proceeding, within the meaning of s 758(3) of the Act.(b)The Fourth Respondent was an employee of the Fifth and Sixth Respondents within the meaning of s 826 of the Act.(c)The Fourth Respondent was a permit holder for the purposes of s 758(3) of the Act.(d)The Fourth Respondent entered the Premises under an OHS law within the meaning of s 758(3) of the Act.(e)While the Fourth Respondent was on the Premises (as aforesaid) an employee of Lend Lease requested the Fourth Respondent to comply with a requirement to stop climbing or walking on, or otherwise using, scaffolding on the exterior of House 12 on the Premises (the Scaffolding Requests).(f)The Scaffolding Requests were requests to comply with an occupational health and safety requirement that applied to the Premises within the meaning of s 758(3)(a) of the Act.(g)The Scaffolding Requests were reasonable requests within the meaning of s 758(3)(b) of the Act.(h)The Fourth Respondent failed to comply with the Scaffolding Requests within the meaning of s 758(3)(c) of the Act.(i)The conduct of the Fourth Respondent set out in (d) and (h) was conduct engaged in on behalf of the Fifth and Sixth Respondents within the scope of the Fourth Respondent’s apparent authority.(j)By the operation of s 826(2) of the Act the said conduct of the Fourth Respondent is taken for the purposes of the Act to have been engaged in also by the Fifth and Sixth Respondents. 3.The First, Fifth and Sixth Respondents contravened s 767(1) of the Act in that on 3 December 2008:(a)The First Respondent was an officer and employee of the Fifth and Sixth Respondents within the meaning of s 826 of the Act. (b)The First Respondent was a permit holder for the purposes of s 767(1) of the Act.(c)While seeking to exercise rights under an OHS law in accordance with s 756 of the Act the First Respondent intentionally hindered and obstructed Lend Lease, Upgrade Carpentry Pty Ltd (Upgrade), Sydney Plasterers and Painters Pty Ltd (SPP), and certain of the carpenters and renderers employed or engaged by Upgrade and SPP by inducing the carpenters and renderers on site to stop work and leave the Premises.(d)The conduct of the First Respondent set out in (c) was conduct engaged in on behalf of the Fifth and Sixth Respondents within the scope of the First Respondent’s apparent authority.(e)By the operation of s 826(2) of the Act the said conduct of the First Respondent is taken for the purposes of the Act to have been engaged in also by the Fifth and Sixth Respondents.4.The First, Fifth and Sixth Respondents contravened s 758(3) of the Act in that on 4 December 2008:(a)Lend Lease was the occupier of at least so much of the Premises as relates to the facts of the present proceeding, within the meaning of s 758(3) of the Act.(b)The First Respondent was an officer and employee of the Fifth and Sixth Respondents within the meaning of s 826 of the Act.(c)The First Respondent was a permit holder for the purposes of s 758(3) of the Act.(d)The First Respondent entered the Premises under an OHS law within the meaning of s 758(3) of the Act.(e)While the First Respondent was on the Premises (as aforesaid) an employee of Lend Lease requested the First Respondent to comply with a requirement to move two vehicles that were parked in the vicinity of a crane that was being or being prepared to be dismantled (the Crane Request).(f)The Crane Request was an occupational health and safety requirement that applied to the Premises within the meaning of s 758(3)(a) of the Act.(g)The Crane Request was a reasonable request within the meaning of s 758(3)(b) of the Act.(h)The First Respondent failed to comply with the Crane Request within the meaning of s 758(3)(c) of the Act for a period of approximately 30 minutes.(i)The conduct of the First Respondent set out in (d) and (h) was conduct engaged in on behalf of the Fifth and Sixth Respondents within the scope of the First Respondent’s apparent authority.(j)By the operation of s 826(2) of the Act the said conduct of the First Respondent is taken for the purposes of the Act to have been engaged in also by the Fifth and Sixth Respondents.5.The Fourth, Fifth and Sixth Respondents contravened s 767(1) of the Act in that on 4 December 2008:(a)The Fourth Respondent was an employee of the Fifth and Sixth Respondents within the meaning of s 826 of the Act.(b)The Fourth Respondent was a permit holder for the purposes of s 767(1) of the Act.(c)While seeking to exercise rights under an OHS law in accordance with s 756 of the Act, the Fourth Respondent intentionally acted in an improper manner by driving a vehicle into a gate behind which stood an employee of Bovis Lend Lease Pty Ltd who was seconded to Lend Lease to work at the Premises.(d)The conduct of the Fourth Respondent set out in (c) was conduct engaged in on behalf of the Fifth and Sixth Respondents within the scope of the Fourth Respondent’s apparent authority.(e)By the operation of s 826(2) of the Act the said conduct of the Fourth Respondent is taken for the purposes of the Act to have been engaged in also by the Fifth and Sixth Respondents
Ratio Decidendi
Legal Principle Established
There is no reason in the present proceeding to cast the net of discretionary considerations more broadly than a consideration of prior contraventions of Part 15 of the Workplace Relations Act or other contraventions of a like “character”. An assessment of the appropriate penalty, it is concluded, can be properly made even within the boundaries of those constraints.DECLARATIONS There was no dispute as to the power of the Court to grant declaratory relief. But such declaratory relief as was granted, the Respondents correctly contended, should reflect with certainty and precision the final outcome of the proceeding: Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65, 185 FCR 308 at [89] per Besanko and Gordon JJ.THE FIRST RESPONDENT The First Respondent, Mr Parker, held at all material times and still holds the position of Construction and General NSW Divisional Branch Assistant Secretary of the Fifth Respondent and Assistant Secretary of the Sixth Respondent. It has been concluded that Mr Parker contravened: ·s 758(3) by failing to undergo a safety induction on 3 December 2008;·s 767(1) by both hindering and obstructing Lend Lease, Upgrade, SPP and carpenters and renderers on site after having entered the site on 3 December 2008; and·s 758(3) by failing to move motor vehicles when requested to do so on 4 December 2008. It may presently be accepted that neither the fact that different statutory provisions were contravened nor the fact that the contraventions occurred on separate but consecutive days necessarily denies the conduct of Mr Parker as constituting a “single course of conduct”. But it is concluded that such contraventions as have been established against Mr Parker do not constitute a “single course of conduct”. The nature and character of the contravention arising out of the failure to undergo a safety induction is different from the conduct involved in hindering or obstructing those on site. The failure to undergo the safety induction occurred at the very outset of the attempt to secure entry to the site and the safety induction was directed to bringing the particular issues of safety relevant to the day in question to the attention of those who sought entry. The mere fact that the subsequent conduct of Mr Parker in respect to the workers on site was ostensibly directed to raising with those workers questions as to safety on site, is not sufficient to make these two contraventions part of a “single course of conduct”. Having secured entry, Mr Parker thereafter engaged in quite separate conduct in interfering with the work being undertaken by those on site. It is further concluded that a penalty of $3,000 should be imposed in respect to each of the first two contraventions. It is of importance to ensure that the statutory rights of entry that have been conferred are exercised in accordance with law. A failure to comply with requests reasonably made of persons seeking to exercise such rights and failure to comply with steps directed to ensuring their safety once on site are not to be lightly disregarded.