Director of the Fair Work Building Industry Inspectorate v Vink
[2016] FCCA 488
•9 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v VINK & ANOR | [2016] FCCA 488 |
| Catchwords: INDUSTRIAL LAW – Penalty hearing – unlawful industrial action under the Fair Work Act 2009 (Cth) – accessorial liability of Union organiser – CFMEU taken to have committed contravention – imposition of appropriate penalty – relevant factors |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 512, 500,546, 793 Work Place Health and Safety Act 2011 (Qld), s.131 |
| Finance Sector Union of Australia v Commonwealth Bank of Australia, (2005) 224 ALR 467 Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union (No.2) [2015] FCA 407 |
| Applicant: | DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| First Respondent: | SCOTT VINK |
| Third Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| File Number: | BRG 68 of 2015 |
| Judgment of: | Judge Vasta |
| Hearing date: | 28 October 2015 |
| Date of Last Submission: | 26 February 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 9 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Coulthard |
| Solicitors for the Applicant: | Fair Work Building & Construction |
| Counsel for the First Respondent: | Mr Reitano |
| Solicitors for the First Respondent: | Hall Payne Lawyers |
| Counsel for the Third Respondent: | Mr Reitano |
| Solicitors for the Third Respondent: | Hall Payne Lawyers |
ORDERS
BY CONSENT THE COURT DECLARES:
The First Respondent contravened s.500 of the Fair Work Act 2009 (Cth) (“FW Act”) on 5 March 2014, in respect of the conduct wherein the First Respondent after gaining entry to the site in the purported exercise of a Workplace Health and Safety issue:
(a)Fastened a padlock to the door of the site shed without the consent or approval of Frankipile or Westfield;
(b)Told employees of Frankipile that the sheds were for the exclusive use of union members;
(c)Used foul and aggressive language towards employees of Frankipile and acted in an angry and abusive manner towards those employees.
The Third Respondent by operation of s.793(1) of the FW Act contravened s.500 of the FW Act on 5 March 2014, in respect of the contravening conduct of the First Respondent.
THE COURT ORDERS:
Pursuant to s.546 of the FW Act the First Respondent pay pecuniary penalties fixed in the sum of $9,000.00.
Pursuant to s.546 of the FW Act the Third Respondent pay pecuniary penalties fixed in the sum of $48,000.00.
That the First and Third Respondents pay the penalties outlined herein to the Consolidated Revenue Fund of the Commonwealth in accordance with s.546(3) of the Fair Work Act 2009 (Cth) within 28 (twenty-eight) days from the date of these Orders.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 68 of 2015
| DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE |
Applicant
And
| SCOTT VINK |
First Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Third Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for the imposition of pecuniary penalties upon the First Respondent, Scott Vink, and the Third Respondent, Construction, Forestry, Mining and Energy Union (CFMEU). The First Respondent is an official of the Third Respondent as that term is defined by s.12 and s.793(1)(a) of the Fair Work Act 2009 (Cth) (“FW Act”). The Third Respondent is “an industrial association” within the meaning given to that term by s.12 of the FW Act and “an employee organisation” within the meaning given to that term by the same section of the FW Act.
The First Respondent is the holder of an entry permit issued under s.512 of the FW Act in his capacity as an official of the Third Respondent and is the holder of an entry permit issued under s.131 of the Work Place Health and Safety Act 2011 (Qld) (“WHS Act”).
The Applicant has alleged that the First Respondent contravened s.500 of the FW Act by acting in an improper manner. The Applicant further alleges that, by the operation of s.793 of the FW Act, the contravention of the First Respondent is taken to be conduct by the Third Respondent in contravention of s.500 of the FW Act.
The First and Third Respondents admit that they have contravened the FW Act.
The Facts
The Pacific Fair redevelopment project is located in Broadbeach. That project involves the redevelopment of the Pacific Fair shopping centre. Westfield Design and Construction Pty Ltd is the head contractor for the project. Westfield have subcontracted Frankipile Australia Pty Ltd (“Frankipile”) to carry out piling works on the project.
Westfield provided to Frankipile a shed on the project for use by the employees of Frankipile. Those employees could store their personal property and food, and eat their meals, in the shed. On 5 March 2014, the employees of Frankipile were using the shed for those purposes.
On that day, the First Respondent entered the project purportedly exercising his right of entry for the purpose of enquiring into a suspected contravention of the WHS Act and in accordance with Part 3-4 of the FW Act.
After entering the project, the First Respondent went to the shed. There was a dispute between the First Respondent and a Frankipile employee, Mr Carmody. Mr Carmody was the National Health, Safety Environment and Training Manager for Frankipile. The dispute was about the entitlement of the Frankipile employees to use the shed.
During the dispute, the First Respondent removed the personal property and food, including refrigerated food, of the Frankipile employees from the shed. The First Respondent then prevented attempts by Mr Carmody and the Project Engineer employed by Frankipile, Mr Zabawa, to return the personal property to the site shed and the food to the refrigerator.
During the course of the dispute the First Respondent behaved inappropriately by shouting at Mr Carmody and Mr Zabawa and used foul and offensive language directed towards them. He insisted that Mr Carmody get out of the site shed.
Following these events, the First Respondent purporting to exercise the right of entry, then fastened a padlock to the door of the shed without the consent or approval of Frankipile or Westfield.
When he was locking the shed, the First Respondent again used foul and offensive language directed towards Mr Carmody and acted in an angry and abusive manner towards him. After locking the shed, the First Respondent explained to Mr Carmody that “sheds on the project were only for the use of union members”. The First Respondent then left the shed.
Consequences
As a result of these actions by the First Respondent, Mr Carmody was required to make arrangements with Westfield for the provision of alternate site accommodation arrangements for the Frankipile employees. Mr Carmody was also required to make arrangements for the Frankipile employees to eat their lunch at a shopping centre in the vicinity of the project.
There is no evidence as to what became of the foodstuffs that had been removed by the First Respondent.
The Nature of the Contraventions
It is obvious that the First Respondent has acted in an improper manner.
The conduct was not engaged in for the purposes of addressing any suspected contravention of the WHS Act in respect of the project.
The conduct was not related to, or justified by, any genuinely held concern about health and safety on the project.
The Frankipile employees were unable to use the site shed to eat their lunch or in any other way use the shed.
Frankipile was required to make alternative arrangements for the Frankipile employees to have their lunch on that particular day.
Frankipile was required to find alternative site accommodation for the employees.
The conduct of the First Respondent was committed for the purpose of giving the impression to the Frankipile employees, and any other employees engaged on the project, that union membership carried with it benefits or advantages that were not available to employees who are not members of the union. The conduct was intended to give all workers at the site the impression that non-members of the union were disadvantaged.
By admitting its role in this matter, the Third Respondent is accepting that the First Respondent engaged in that conduct in his capacity as an official of the Third Respondent.
In engaging in the conduct, the First Respondent was acting within the scope of his actual or apparent authority as an official of the Third Respondent.
The state of mind of the First Respondent in engaging in the contravening conduct is taken to be the state of mind of the Third Respondent.
Factors to be taken into account
In the Finance Sector Union of Australia V Commonwealth Bank of Australia, (2005) 224 ALR 467, it was said that:-
“…it may be the 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 a prescribed what is acceptable, and what is unacceptable, industrial conduct. The legislature had, 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 is serious, wilful and ongoing breaches of industrial laws should no longer be applicable. As is apparent from the penalties that I have imposed, I have not accepted that such an approach, which was urged by CBA (which contended that none either no penalty or only a nominal penalty was appropriate), is applicable in the present case.”
The Courts have recognised a number of factors as relevant to the imposition of penalties in an industrial regulatory context. Whilst warning against applying rigid checklist of matters, I have had regard to what those authorities have said. In my view the following aspects are ones that I need to take into account:-
a)the contravention occurred under a purported right of entry;
b)the conduct was deliberate and flagrant to the point of fixing a lock on the shed;
c)the clear message to all employees was that benefits on the work site will only be afforded to members of the union;
d)the behaviour was aggressive and, more importantly, intimidating;
e)whilst there was no violence to people, there was a forcible removing of food and property;
f)there was no evidence of economic loss suffered by Frankipile or Westfield and there was no damage done to property;
g)there was no disruption to work;
h)the First Respondent is “a first offender”;
i)there was no involvement of anyone else from CFMEU and no management of CFMEU was involved;
j)the behaviour was not prolonged;
k)there has been a plea of guilty entered which illustrates cooperation with the administration of justice;
l)the Third Respondent has not deprecated the First Respondent’s conduct or expressed any contrition for failing to prevent his contravention. Nor has the Third Respondent indicated any willingness to take steps to ensure that the First Respondent will in future comply with his legal obligations;
m)there has been no remorse or contrition exhibited over the behaviour;
n)there is no evidence that the Respondents took any corrective action following the contravention;
o)a need for specific deterrence;
p)a need for general deterrence;
The matter is a serious one and such was conceded by Counsel for the Respondents. However, Counsel contended that such conduct was not in the worst category of behaviour.
Comparable matters
Both Counsel very helpfully referred me to a number of matters where there were comparable aspects to the present case. I have had regard to all of those matters and will list them:
a)Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59;
b)Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union (No.2) [2015] FCA 407;
c)Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union (No. 3) [2015] FCA 845
d)Director of the Fair Work Building Inspectorate v Cartledge [2014] FCA 1047;
e)Director of the Fair Work Building Inspectorate v Stephenson [2014] FCA 1432 ;
f)Director of the Fair Work Building Inspectorate v Bragdon [2015] FCA 668;
g)Director of the Fair Work Building Inspectorate v Bragdon (No.2)[2015] FCA 998;
h)Director of the Fair Work Building Inspectorate v Upton [2014] FCA 672;
i)Director of the Fair Work Building Inspectorate v Upton [2014] FCA 672;
j)Director of the Fair Work Building Inspectorate v Stephenson [2014] FCA 1432;
k)Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59
l)Director of the Fair Work Building Inspectorate v Myles & Ors [2013] FCCA 2229;
m)Director of the Fair Work Building Inspectorate v Myles & Ors [2014] FCCA 1429;
n)White v Benstead & Ors [2011] FMCA 920;
o)Lovewell v Pearson & Anor [2011] FMCA 102;
p)Darlaston v Parker (No.2) [2010] FCA 1382;
q)Setka v Gregor (No.2) [2011] FCAFC 90;
r) Gregor v CFMEU & Anor [2011] FMCA 562;
s)ABCC v Mitchell & Ors [2011] FMCA 622;
t)Alfred v Wakelin (No.1) [2008] FCA 1455;
Of course, no two cases are the same and it is a fruitless exercise to compare and contrast matters so as to somehow arrive at a proper penalty as if it were a mathematical proposition.
Both counsel expressed a desire to make submissions as to the appropriate range of penalties and a submission as to the specific penalty they would contend for in this case, but did not do so because of the Full Court authority of Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59.
As a result, that matter was the subject of an appeal before the High Court and the decision of the High Court had been reserved at the time of the hearing, both Counsel felt that it would be appropriate for an adjournment to await the High Court decision. I granted such adjournment.
On 9 December 2015, the High Court allowed the appeal. The decision meant that it was appropriate to hear submissions from both sides as to the appropriate penalty. Such submissions cannot find the court, and it is still for the court to assess what is the appropriate penalty. Both sides then sent me submissions which were received by 1 March 2016.
Submissions for the Applicant
The Applicant submits that given the nature of the First Respondent’s conduct and the cases to which I have already referred, an appropriate pecuniary penalty would be a “mid-range” penalty between $4,000.00 and $6,000.00.
The Applicant submits that the Third Respondent’s history of prior contraventions and its “deplorable attitude” to its legal obligations justifies a penalty at the higher end of the scale. The Applicant submits an appropriate penalty would be between $40,000.00 and $50,000.00.
Submissions for the First and Third Respondents
The Respondents says that the penalty should fall to the lower end of the scale principally because the conduct in question did not involve violence to people or property, did not involve hindering or preventing of work being carried out and that there was no identification of any particular quantum of financial loss or damage.
The Respondents submitted that because the liability of the Third Respondent is derivative, the Court should take into account that there is nothing in the evidence which shows that the Third Respondent’s record had previously been derived from the actions of the First Respondent.
Accordingly, the Respondents submit that the penalty should be towards the lower end of the range and below that of those proposed by the Applicant.
The Offending
This is a serious offence. There is only one offence alleged. The Respondents suggested that the behaviour could have been much worse. That may be so, but if it had been worse, it would have attracted other breaches of the FW Act rather than the one breach that is alleged in this matter. If there had been violence to people or property, the criminal law would also have played a part in this matter.
To my mind, when one is talking about a single breach, the behaviour does not get much worse than the present case. The First Respondent fraudulently entered the shed of the Frankipile employees.
There was never any legitimate reason for the First Respondent to enter that shed. The only reason he did so was to intimidate the employees and to reinforce to others at the building site, the notion that non-union membership is not going to be tolerated.
It is hard to imagine a more blatant single breach. The need for condign punishment is obvious. The maximum penalty for the First Respondent is $10,200.00 and the maximum penalty for the Third respondent is $51,000.00.
I do not think that the fact that the First Respondent has no record of previous breaches of the FW act is of great consequence. There has been no submission to the effect that this was in any way a maverick act by an overenthusiastic and inexperienced officer of the Third Respondent. Therefore, there is little in this particular circumstance which mitigates the penalty.
There is a great need for general deterrence and specific deterrence in this case. It would be apt to describe the behaviour of the First Respondent as “sheer thuggery”. Such thuggery has no place in the Australian workplace. Contraventions of the FW Act that involve such thuggery cannot be tolerated.
The Third Respondent does have an unenviable history of breaching the FW Act. It seems to treat being caught conducting such breaches or as the present one simply as occupational hazards in the way in which they conduct their business. There has been no apology for such appalling behaviour.
If not for the “plea” that saved a great deal of Court time and illustrated a cooperation with the administration of Justice, and the lack of previous history of breaches by the First Respondent, I would have had no hesitation in imposing the maximum penalties available.
Orders
Taking into account all factors that I have numerated in paragraph 26 above, I order that the First Respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of $9,000.00. I order that the Third Respondent pay to the Commonwealth a pecuniary penalty in the sum of $48,000.00. I order that those payments be made within 14 days.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 9 March 2016.
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