Director, Fair Work Building Industry Inspectorate v Myles & Ors
[2014] FCCA 1429
•28 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE v MYLES & ORS | [2014] FCCA 1429 |
| Catchwords: INDUSTRIAL LAW – Penalties – imposition of penalty – penalties imposed upon trade unions for conduct of union organisers – factors to be considered – course of conduct – deterrence – contrition – lack of evidence of corrective action. |
| Legislation: Fair Work Act 2009 (Cth), s.500 |
| Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No.4) [2013] FCA 930 Director, Fair Work Building Industry Inspectorate v Myles & Ors [2013] FCCA 2229 Gregor v Setka [2010] FMCA 690 R v Byrnes & Hopwood (1995) 183 CLR 501 |
| Applicant: | DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| First Respondent: | JOSEPH MYLES |
| Second Respondent: | KANE PEARSON |
| Third Respondent: | SHANE TREADAWAY |
| Fourth Respondent: | AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES & BUILDERS’ LABOURERS’ FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES |
| Fifth Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Sixth Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY INDUSTRIAL UNION OF EMPLOYEES QUEENSLAND |
| File Number: | BRG 961 of 2011 |
| Judgment of: | Judge Burnett |
| Hearing date: | 28 February 2014 |
| Date of Last Submission: | 28 February 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 28 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Pratt |
| Solicitors for the Applicant: | Gadens Lawyers |
| Senior Counsel for the Respondents: Junior Counsel for the Respondents: | Mr W. Friend SC Mr J. Merrell |
| Solicitors for the Respondents: | Hall Payne Lawyers |
ORDERS
A declaration that at or about 6:30am on 11 February 2010, the Second Respondent, a permit holder for the purpose of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 Fair Work Act 2009 in that he otherwise acted in an improper manner by being rude and offensive, including by swearing at and insulting by stating to Mr Element, site foreman, “You’re a dickhead I’m not dealing with you. I want to talk to Duncan Elliot” and by calling Mr Element a “fuckwit”, “deadbeat” or “dickhead”;
A declaration that at or about 7:15am on 11 February 2010, the Second Respondent, a permit holder for the purpose of the Fair Work Act 2009, did enter upon the site seeking to exercise rights in accordance with Part 3 Fair Work Act 2009 and upon doing so, contravened s.500 Fair Work Act 2009 in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that was aimed either at causing disruption to the work scheduled to take place at the site or soliciting business or both.
A declaration that at or about 8:35am on 11 February 2010, the Second Respondent, a permit holder for the purpose of the Fair Work Act 2009, did enter upon the site seeking to exercise rights in accordance with Part 3 Fair Work Act 2009 and upon doing so contravened s.500 Fair Work Act 2009 in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that did in fact contribute in a substantial way to the disruptions on the site by imploring workers to down tools.
A declaration that at or about 8:00am on 11 February 2010, the Third Respondent, a permit holder for the purpose of the Fair Work Act 2009, did enter upon the site seeking to exercise rights in accordance with Part 3 Fair Work Act 2009 and upon doing so contravened s.500 Fair Work Act 2009 in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that was aimed either at causing disruption to the work scheduled to take place at the site or soliciting business or both by soliciting union dues from Mr Chris Nieland.
A declaration that at or about 9:30am on 11 February 2010, the First Respondent, a permit holder for the purpose of the Fair Work Act 2009, did enter upon the site seeking to exercise rights in accordance with Part 3 Fair Work Act 2009 and upon doing so contravened s.500 Fair Work Act 2009 in that he acted in an improper manner by being rude and offensive, including by swearing at and insulting Mr Element in the performance of his duty by saying to him “I don’t have to answer you, you fucking little grub” following Mr Element enquiring of the First Respondent’s failure to have correct PPE.
A declaration that at or about 10:00am on 11 February 2010, the First Respondent, a permit holder for the purpose of the Fair Work Act 2009, did enter upon the site seeking to exercise rights in accordance with Part 3 Fair Work Act 2009 and upon doing so, contravened s.500 Fair Work Act 2009 in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that did in fact contribute in a substantial way to the disruptions on the site by addressing the workers and calling upon them not to return to work thereby delaying their return to work following the smoko break.
A declaration that by operation of s. 793 of the Fair Work Act 2009, the Fourth, Fifth and Sixth Respondents have each contravened s.500 of the Fair Work Act 2009.
The First Respondent pays a penalty of $4,950.00
The Second Respondent pays a penalty of $4,950.00
The Third Respondent pays a penalty of $2,200.00
The Fifth Respondent pays a penalty of $26,400.00
Each of the penalties imposed upon the Respondents under Orders 8-11 be paid within 28 days to the Consolidated Revenue Fund of the Commonwealth.
No order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 961 of 2011
| DIRECTOR, FAIR WORK BUILDING INSPECTORATE |
Applicant
And
JOSEPH MYLES
First Respondent
KANE PEARSON
Second Respondent
SHANE TREADAWAY
Third Respondent
AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES & BUILDERS’ LABOURERS’ FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES
Fourth Respondent
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Fifth Respondent
CONSTRUCTION, FORESTRY, MINING AND ENERGY INDUSTRIAL UNION OF EMPLOYEES QUEENSLAND
Sixth Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
This application commenced by way of application for declarations concerning contraventions of the Fair Work Act 2009 (Cth) (“FW Act”) alleged against the respondents. Following trial, it was determined that six contraventions were established against the natural respondents. It is not in contention that the natural respondents were engaged in their duties as officers and/or employees of the corporate respondents. Therefore, insofar as these events relate to any of the natural respondents, the corporate respondents are also contraveners.
Having established the contraventions, it is now appropriate to consider penalty. The general principles relating to the imposition of penalties have been comprehensively addressed in submissions prepared by each of the parties. They have also been helpfully summarised in the decision of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No.4) [2013] FCA 930, where Murphy J made these observations:
“[16] The purposes to be served by the imposition of penalties are threefold:
1. Punishment — which must be proportionate to the offence in accordance with prevailing standards;
2. Deterrence — both specific and general; and
3. Rehabilitation.
…
[17] Courts exercising industrial jurisdiction have identified a range of factors for assessing the appropriate penalty which, while not mandatory considerations, may be relevant to the circumstances of a particular case. These include:
(a) the nature and extent of the conduct;
(b) the circumstances in which the conduct took place;
(c) the period of the conduct;
(d) the nature and extent of any loss or damage sustained as a result of the conduct;
(e) whether there has been similar previous conduct by the respondents;
(f) whether the contraventions arose out of one course of conduct;
(g) whether senior management was involved in the conduct;
(h) whether any contrition has been exhibited;
(i) whether any corrective action has been taken;
(j) the cooperation of the respondents; and
(k) the need for deterrence.
…
[18] However, the court’s task in assessing penalty is one of “instinctive synthesis”: Australian Ophthalmic Supplies at [27] per Gray J and [55] per Graham J. This process requires the court to take all relevant factors into account to arrive at a single result which takes due account of them all: Wong v R (2001) 207 CLR 584 at [74]–[76] per Gaudron, Gummow and Hayne JJ; Markarian v R (2005) 228 CLR 357 at [37] per Gleeson CJ, Gummow, Hayne and Callinan JJ. Care should be taken with the use of a checklist setting out the range of relevant factors as they give rise to a risk of transforming the process of instinctive synthesis into the application of a rigid catalogue of matters for attention: Australian Ophthalmic Supplies at [89]–[91] per Buchanan J.
[19] Proportionality and consistency commonly operate as a final check on the penalty assessed, but the penalty should not be derived from comparing the case which is the subject of the assessment with any other particular case: Australian Ophthalmic Supplies at [54], [56]–[57] per Graham J and at [87] per Buchanan J.
[20] The totality of the penalties imposed must also be appropriate. The totality principle requires that the total penalty for all related contraventions ought not exceed what is proper for all contravening conduct involved: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41–375 at [20] per Burchett J. The rationale of the principle is to ensure that the proposed penalty is proportionate when the contraventions are viewed collectively.”
It is with those principles in mind that I proceed to determine the appropriate penalties in this instance.
I have traversed the originating facts of this application in the published reasons for judgment.[1] There I have made findings of six established contraventions. Much of the background relating to the findings is not in contention. That information informs the circumstances surrounding the contraventions. Those matters are addressed in my reasons and will not be reiterated except where necessary.
[1] Director, Fair Work Building Industry Inspectorate v Myles & Ors [2013] FCCA 2229.
However, I make these general observations about the facts of the case. The three natural respondents are each organisers and/or agents of the various corporate respondents. They attended a work site in Albert Street, Brisbane on the morning of 11 February 2010. The events transpired from about 6:30am to about 10:00am. The early events concerned the second and third respondents, and the later events concerned the first respondent. The events occurred against a background of industrial action being taken by the natural respondents in their capacity as officers of the corporate respondents, purportedly in furtherance of concerns about workplace health and safety issues on the site.
There had been a history of complaints in relation to those matters, although it appears that the complaints, while proper, were of a relatively minor nature. Against that background, the natural respondents purported to attend the site on 11 February 2010 to investigate and address those issues. Those events gave rise to the complaints which were ultimately established against each of the respondents.
I shall address the three natural respondents in the order in which they were dealt with in the judgment.
Second respondent’s contraventions
Three contraventions were established against the second respondent, Mr Pearson. The first is that “on or about 6:30am on 11 February 2010, the Second Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he otherwise acted in an improper manner by being rude and offensive, including by swearing at and insulting by stating to Mr Element, site foreman “You’re a dickhead I’m not dealing with you. I want to talk to Duncan Elliot” and by calling Mr Element a “fuckwit,” “deadbeat” or “dickhead.””
The second contravention established against the second respondent is that “on or about 7:15am on 11 February 2010, the Second Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that was aimed either at causing disruption to the work scheduled to take place at the site or soliciting business or both.”
The third contravention found against the second respondent is that “on or about 8:35am on 11 February 2010, the Second Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that did in fact contribute in a substantial way to the disruptions on the site by imploring workers to down tools.”
The conduct constituting the first contravention was offensive, disrespectful and contumacious. Mr Pearson’s attitude to the site foreman was entirely uncalled for. These events have many similarities to the circumstances of Gregor v Setka [2010] FMCA 690, a case that was referred to by the parties today. It was unquestionably improper; as the High Court said in R v Byrnes & Hopwood (1995) 183 CLR 501: “impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged defendant by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case.”
The second contravention related to the events of about 7:15am, when he approached workers, said to them that union fees were due and engaged in promotion of the union’s business. That activity distracted workers from performing their duties and thereby hindered and/or obstructed them. The respondent submits in respect of that particular complaint that the distraction was only minor. However, I think that ignores the very reason why the second respondent was on the site, which was to undertake duties relevant to workplace health and safety.
It might be that the nature of the disruption that was involved in the solicitation of fees was minor, but it requires little imagination to anticipate the confected outrage that may have followed if, for instance, an employee were injured when momentarily distracted by a supervisor about whether he had paid his social club fees. The point is that the second respondent was on site for workplace health and safety purposes. It is now an article of faith that safety breaches are taken very seriously. The scope of the recently introduced legislative regime highlights that fact.[2] Conduct that jeopardises safety is to be discouraged, particularly by those who profess to police it. In my view, this was the most egregious of the second respondent’s breaches.
[2] Work Health and Safety Act 2011 (Cth).
The third breach concerned the events of 8:35am. That breach was disruptive, but arguably in furtherance of workplace safety purposes. His difficulty was that it was not justifiable in the circumstances. His motivation may have had a more credible basis, but his justification was misguided. The contraventions generally involved a serious encroachment of the occupier’s rights, particularly its responsibilities as employer.
In terms of the injury occasioned by these events, it is fair to say that the disruptions were minor and the offence was, perhaps fortunately, not taken to heart. The conduct occurred over a period of about two hours. The fact remains, however, that the potential for injury or harm was significant, particularly given the complex working environment in which these events occurred.
Previous conduct
Another matter to be considered is whether there has been similar previous conduct by the natural respondents. I note in that regard that the applicant submitted an annexure to its submissions identifying that each of these respondents has been the subject of proceedings arising out of contraventions of the FW Act.
However, each of those proceedings postdate the events the subject of this matter. Indeed, the dates are such that it cannot even be said that these proceedings were on foot at the time that these subsequent offences occurred. It follows that I proceed from the premise that there is no evidence of similar previous conduct by the natural respondents.
Course of conduct
So far as the second respondent is concerned, I am conscious that the relevant events arose out of a course of conduct. There has been some debate today concerning the best way to consider the contraventions. I have determined that it is appropriate to view them as one continuous course of conduct and to impose one corresponding penalty. The fact that the case was decided in the way that it did was in part because of a lack of clarity, as discussed in the judgment, about which particular contraventions were being pursued and in what context. That matter was discussed in my earlier reasons for judgment. The one penalty will account for the three contraventions.
The next consideration relates to whether or not there has been the involvement of senior management. Mr Pearson was an organiser for the fifth and sixth respondents. In terms of the sixth respondent’s hierarchy he is the third from the top or second from the bottom, whichever way you wish to approach it. He is not in a senior role but he is certainly in a role of responsibility in what seems to be a relatively limited hierarchical structure.
In terms of contrition, I take note of the fact that in this instance the matter proceeded to trial. Ultimately, the events could only be resolved by judicial intervention. In that regard, Mr Pearson was not favourably viewed by the Court as a witness. Although that matter itself does not bear upon contrition, the fact remains that many matters were put in issue which suggest a lack of contrition, or at least an unwillingness to acknowledge contravention on his part.
In terms of corrective action, there is really no corrective action that can be taken by the natural respondents, and that is a matter I will address in the context of the corporate respondents. I have nothing to add in terms of the cooperation of the respondents beyond my earlier observations in relation to contrition.
Deterrence
There are questions of both specific and general deterrence to be considered in the context of this case. In terms of general deterrence, I am conscious that Mr Pearson was an organiser for the fourth and fifth respondents and, accordingly, a message needs to be communicated by the Court to other organisers who might be inclined to engage in this sort of conduct.
I am also conscious of the need for specific deterrence, that is, to deter the respondent from engaging in this conduct again, although I note that since these events he has been the subject of at least two penalties and involved in one further proceeding, which has hopefully illustrated the gravity and iniquitous nature of this behaviour. Overall, having regard to those matters and the maximum penalty of 60 penalty units, I have come to the view that this is a contravention that took place at the higher end of the scale.
In my view, a penalty of 75 per cent of the total is appropriate. This amounts to 45 penalty units and $4,950 in dollar terms. When one adopts the instinctive synthesis approach, that appears to be a reasonable outcome having regard to the relevant factors. Furthermore, it is not an unduly onerous penalty and in that regard I am mindful of the respondents’ submissions about the effect of penalties upon the individuals involved, namely that their impact would not lead to oppressive hardship or impecunity.
Third respondent’s contraventions
So far as the third respondent, Mr Treadaway, is concerned, one contravention was established against him, that is that “on or about 8.00am on 11 February 2010, the Third Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that was aimed either at causing disruption to the work scheduled to take place at the site or soliciting business or both by soliciting for union dues from Mr Chris Nieland.”
As my findings illustrate, I was satisfied that Mr Treadaway was engaged in soliciting business by, in this instance, soliciting union fees from Mr Nieland and that that activity caused disruption to work which was then scheduled to take place, by disturbing Mr Nieland in the performance of his duties, as the solicitation occurred during work time and not, for instance, when he was on a break.
The most egregious aspect of this contravention was that Mr Treadaway attended the site on the pretext of his entitlement in respect of workplace health and safety matters. It was, as was the case with the second respondent, quite inappropriate for him to be seeking to conduct activities that were not reasonably related to safety. The right to be on site must to some extent be taken on trust. In this case, what I regarded as a somewhat flimsy but legitimate workplace health and safety concern was made out, however, the legislative scheme will quickly fall into disrepute if those who seek to abuse it are not appropriately dealt with.
I have earlier addressed the other factors relevant to the circumstances of the complaint. I am mindful that this respondent has only been found culpable in respect of one contravention. There has been, realistically, no loss or damage sustained as a result of the conduct. As with the second respondent, any contraventions found against him which postdate these events and of no material value to this assessment of penalty.
In this instance, Mr Treadaway was found to only have contravened the FW Act on one occasion, so this does not give rise to a question regarding a course of conduct. I am cognisant of the fact that he was an organiser and was to some extent a more senior representative of the fifth and sixth respondents, but not of senior management. As with the second respondent, I take into account the fact that there was no early resolution of this matter and that it required judicial intervention to resolve. His credit did not fare well in the proceedings.
Deterrence
There is a need for both specific and general deterrence in respect of the third respondent. I have nothing more to add to my earlier observations about deterrence. Considering those factors and adopting the instinctive synthesis approach, it seems to me that in this instance an appropriate penalty would be 20 penalty units, which amounts to $2,200. Considering the penalty, it does not, on review, seem to be overly oppressive and in all the circumstances seems appropriate.
First respondent’s contraventions
Mr Myles is found to have contravened on two instances. The first was that “on or about 9:30am on 11 February 2010, the First Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he acted in an improper manner by being rude and offensive, including by swearing at and insulting Mr Element in the performance of his duty by saying to him “I don’t have to answer you, you fucking little grub” following Mr Element enquiring of the first respondent’s failure to have correct PPE.”
The second contravention established was that “on or about 10:00am on 11 February 2010, the First Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that did in fact contribute in a substantial way to the disruption on the site by addressing the workers and calling upon them not to return to work thereby delaying their return to work following the smoko break.”
As with the second respondent, so far as the first complaint is concerned his behaviour was offensive, disrespectful, contumacious and disruptive. My remarks regarding the motivation and background that gave rise to the second respondent’s contraventions apply with equal force to those of Mr Myles. The disruption which founded his second contravention was not elaborated upon in the evidence. It appears that during the course of the “smoko” break Mr Myles spoke to the workers, which he was well within his rights to do, but his behaviour following the break brought him into contravention.
As with the second respondent I have taken the view that this behaviour is most appropriately considered as part of a course of conduct. Although there are two contraventions, they both occurred in the course of the one morning’s events and it is appropriate that they be assessed in that context. I will impose one penalty rather than split the conduct and attribute differing penalties to the respective contraventions.
The circumstances here do not suggest that there was any significant loss or delay sustained as a result of the conduct, although I am conscious that the conduct generally interfered with the workers on the site that day.
I make the point that although the workers left the site, I do not attribute that event solely to the conduct of Mr Myles or the other respondents. There were clearly other issues at play which were not necessarily related to these contraventions, and in the absence of direct evidence I am not prepared to act upon the premise that what happened subsequently was a direct effect of the contraventions.
Although there is evidence of Mr Myles having been the subject of contravention findings in subsequent proceedings, there is no evidence to suggest that there was any previous conduct evident at the time of the commission of these contraventions. I have nothing further to add in terms of Mr Myles’ position, so far as it concerns the involvement of senior management, nor to add to anything I have stated already in respect of contrition or cooperation having regard to the attitude that Mr Myles took in forcing the matter to trial.
Deterrence
I think that the same considerations apply in respect of Mr Myles with regard to specific and general deterrence. Again, having regard to all relevant factors and the instinctive synthesis test, I have come to the view that an appropriate penalty is one commensurate with that imposed upon the second respondent. I regard their conduct as equally egregious and it follows that I impose a penalty of 45 penalty units, amounting to $4,950. That sum does not appear to be oppressive or unreasonable and, accordingly, I am satisfied it is appropriate.
Corporate respondents
The three corporate respondents are each separate legal and accounting entities, although each of them have common committees of management. It seems that although they are separate legal entities they are essentially treated as one for industrial relations purposes in Queensland, by reason of the certificates issued by the registrar of the Queensland Industrial Relations Commission.
I have reflected upon whether or not the three corporate respondents should be the subject of separate penalties or whether one penalty should be imposed, effectively as a head penalty that would pick up the conduct of the other two. I have determined that in these circumstances it is appropriate to adopt the latter approach.
I have come to the view because if I was to split the penalty the smaller individual quanta it could mislead persons into believing that the conduct was less egregious than in fact it was. Also I think that one penalty is most appropriate because, as I have noted, the unions have acted commonly, they have common management and had joint interests in the events.
The natural respondents are officers of the corporate respondents, as is illustrated in the diagram that was submitted by the applicant this morning, and so it is appropriate to deal with it on that basis. I will impose a penalty on the fifth respondent, which is the lead organisation of the three respondent unions.
So far as penalty is concerned, I am not going to rehearse the facts of the case. They are evident in my summary of the contraventions found against the three natural respondents. The corporate respondents were persons involved in that conduct. I am not going to slice and dice the behaviour of the third respondent, for instance, and attribute a lesser quantum of penalty to one of the corporate respondents. Such an exercise would become too artificial, especially given that the third respondent was an organiser for two of the corporate respondents.
Generally, I take the view that the corporate respondents have to be responsible for the conduct of their agents and organisers. I think it would be unrealistic to expect that, although there is no direct evidence on this point what was happening on the site that day took place without knowledge of those further up the organisational chain.
There is ample evidence of significant contravention by the CFMEU and its ideological fellow travellers. The CFMEU, as a holistic organisation, has an extensive history of contraventions dating back to at least 1999. The only reasonable conclusion to be drawn is that the organisation either does not understand or does not care for the legal restrictions on industrial activity imposed by the legislature and the courts.
My views on that matter are reinforced by my inquiries of the corporate respondents concerning measures of corrective action. This would appropriately involve the development of policy dealing with union entry to work sites, coupled with the training of employees in how to use that policy and undertake their duties responsibly. The unions would be required to supervise the implementation of those policies and provide for sanctions, possibly by way of re-training, for employees who failed to comply with those policies. This would also necessitate internal audit process to check that policies are being applied, are working and are modified if necessary. There is no evidence that any of this, or indeed any corrective action at all, takes place.
These proceedings ultimately represent a gross failure of corporate governance on the part of the CFMEU and its affiliates. If BHP, Rio Tinto or other large corporate bodies were engaging in such conduct through their officers or agents there would be, quite properly, public outcry about such omissions. I see no reason why a trade union ought not be subject to the same principles of reasonable and appropriate corporate governance and compliance as a commercial organisation. It is the failure of the unions to enact corrective action that I find most egregious.
I otherwise make similar observations, so far as the corporate respondents are concerned, concerning the involvement of senior management, contrition, cooperation and the need for deterrence.
I have come to the view that the corporate respondents’ actions warrant a significant penalty. An appropriate penalty in this instance would be 240 penalty units, which equates to $26,400, and is about 80 per cent of the maximum. So far as the totality principle is concerned, it does seem a reasonable and proper penalty having regard to the circumstances of the case.
I am conscious of the instinctive synthesis approach and the need to reserve for the most egregious and extreme of cases the maximum possible penalty. This is not the most extreme of cases, but it is certainly a concerning one.
I will allow the respondents 28 days to pay their respective penalties.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Associate:
Date: 4 July 2014
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