Director of the Fair Work Building Inspectorate v CFMEU
[2013] FMCA 160
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DIRECTOR OF THE FAIR WORK BUILDING INSPECTORATE v CFMEU & ANOR | [2013] FMCA 160 |
| INDUSTRIAL LAW – Breach of s.348 of the Fair Work Act 2009 – agreed penalty neither manifestly excessive nor manifestly inadequate. |
| Fair Work Act 2009, ss.347, 348, 363 |
| Minister for Industry, Tourism and Resources v Mobil Oil Australia Proprietary Limited (2004) ATPR 41-993; [2004] FCAFC 72 |
| Applicant: | DIRECTOR OF THE FAIR WORK BUILDING INSPECTORATE |
| First Respondent: | CONSTRUCTION FORESTRY MINING AND ENERGY UNION |
| Second Respondent: | DEREK CHRISTOPHER |
| File Number: | MLG 293 of 2011 |
| Judgment of: | Whelan FM |
| Hearing date: | 20 February 2013 |
| Date of Last Submission: | 20 February 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 20 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Snaden |
| Solicitors for the Applicant: | Minter Ellison |
| Counsel for the first Respondent: | Mr Bakri |
| Solicitors for the first Respondent: | Slater and Gordon Lawyers |
| Counsel for the second Respondent: | Mr Bakri |
| Solicitors for the second Respondent: | Slater and Gordon Lawyers |
ORDERS
The Court declares that on 9 October 2009, at the RMIT Building 13 construction site at 124 La Trobe Street, Melbourne (“the site”), the First Respondent contravened s.348 of the Fair Work Act 2009, in that, by the conduct of its employee, the Second Respondent, it threatened with assault and repeatedly abused with obscene language Hooker Cockram Pty Ltd’s (“HCPL”) site Manager, Mr Paul Quinn, and did so with intent to coerce HCPL into complying with its request that its Site shop steward be permitted to attend Site inductions.
ORDERS BY CONSENT
That a penalty of $10,000.00 be imposed on the First Respondent in respect of the contravention of s.348 of the Fair Work Act 2009 on 9 October 2009.
That the penalty imposed upon the First Respondent under Order 2 be paid into the Consolidated Revenue Fund of the Commonwealth on or before 13 March 2013.
That there be no order as to costs.
That the application otherwise be discontinued by consent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 293 of 2011
| DIRECTOR OF THE FAIR WORK BUILDING INSPECTORATE |
Applicant
And
| CFMEU |
First Respondent
| DEREK CHRISTOPHER |
Second Respondent
REASONS FOR JUDGMENT
(as revised from transcript)
Introduction
This is an application by the DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE (“the Applicant”) for the imposition of a penalty on the CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (“the First Respondent”) for a contravention of s.348 of the Fair Work Act 2009 (“the Act”). No penalty is sought against DEREK CHRISTOPHER (“the Second Respondent”). The facts on which the Applicant relies are contained in a Statement of Agreed Facts filed with this Court on 15 February 2013. The relevant matters are these.
Background
The contravention relates to an incident on Friday 9 October, 2009, which occurred at the Royal Melbourne Institute of Technology (“RMIT”) Building 13 project site, located at 124 La Trobe Street, Melbourne. The principal contractor in charge of the project was Hooker Cochrane Projects Limited (“HCPL”).
Amongst their employees was a Mr FRANK PREVOLSEK (“Mr Prevolsek”), who was also the First Respondent’s site delegate and Mr PAUL QUINN (“Mr Quinn”), who was the HCPL site manager. Prior to 9 October 2010, Mr Prevolsek had been attending inductions in his role as shop steward for the union and health and safety representative. On the morning of 9 October 2010, Mr Prevolsek was informed by the site manager, Mr Quinn, that he was no longer to attend inductions at the site. He contacted the Second Respondent, an Organiser for the First Respondent, who attended at the site some 40 minutes later and met with Mr Quinn.
During the course of the meeting the Second Respondent requested of Mr Quinn that HCPL designate to Mr Prevolsek the duty of attending inductions.
After Mr Quinn refused the request, the Second Respondent moved so that he was standing in very close proximity to Mr Quinn and behaved in an intimidating and abusive manner towards Mr Quinn including by approaching very close to Mr Quinn and threatening him with assault if Mr Quinn did not let Mr Prevolsek attend inductions and using obscene language to repeatedly abuse Mr Quinn in the presence of Mr Prevolsek.
It is conceded that the Second Respondent effected both the threat and the abuse with the intent to coerce HCPL to comply with the request. It is further conceded that the conduct attributed to the Second Respondent was conduct of the First Respondent by reason of s.363 of the Act, given that the Second Respondent was an officer of the First Respondent and was acting in that capacity.
Further, the request was, for the purposes of s.347 of the Act, a request made by the First Respondent and the First Respondent engaged in the conduct attributed to it with the same intent as that with which the Second Respondent engaged in it by reason of s.363(3) of the Act, that intent being to coerce HCPL to comply with the request.
It is therefore conceded that in contravention of s.348 of the Act the First Respondent engaged in the conduct constituted by both the threat and the abuse and threatened to engage in the conduct that was the subject of the threat with the intention of coercing HCPL into complying with the request and thereby engaging in industrial activity within the meaning attributed to that term by s.347 of the Act.
In this case the parties have reached an agreed penalty. The Court’s approach to agreed penalty is summarised in the case of Minister for Industry, Tourism and Resources v Mobil Oil Australia Proprietary Limited.[1] It may generally be said that while the Court is not bound by the agreed penalty proposed by the parties, provided that penalty is within the permissible range, in that the penalty is not manifestly excessive or manifestly inadequate, then the Court ought to apply that penalty. The determination of what is the appropriate range, and therefore what is manifestly inadequate or manifestly excessive, is assisted by a consideration of the maximum penalty available for the contravention and the facts and circumstances of the case.
[1] Minister for Industry, Tourism and Resources v Mobil Oil Australia Proprietary Limited (2004) ATPR 41-993; [2004] FCAFC 72 at [53].
In exercising that discretion, the Courts have identified a range of relevant factors to consider in assessing penalties. Those factors are not necessarily mandatory. The overriding principle is to ensure that the penalty is proportionate to the gravity of the conduct concerned.
The Applicant in this case has identified a number of matters which the Applicant considers to be relevant to the determination of an appropriate penalty. Those are:
·the nature and circumstances of the First Respondent’s conduct;
·the impact of the contravention;
·the First Respondent’s admission of guilt;
·the First Respondent’s cooperation in preparation of the Statement of Agreed Facts;
·the need for general and specific deterrence; and
·the prior contraventions of the First Respondent.
Likewise, the Respondents have also provided a similar although more extensive list of considerations, some of which overlap. Those include:
·the nature and extent of the conduct;
·the circumstances in which the conduct took place;
·the period of the conduct;
·the nature and extent of any loss or damage sustained as a result of the conduct;
·whether the conduct was deliberate;
·the size of the contravener;
·whether there has been similar previous conduct by the Respondent;
·whether the contraventions arose of one course of conduct;
·whether senior management was involved in the conduct;
·whether there has been any contrition exhibited;
·whether the Respondent has taken corrective action;
·the cooperation of the Respondent; and
·the need for specific and general deterrence.
In considering the nature and circumstances of the conduct of the First Respondent, the Applicant places emphasis on the intimidating and abusive behaviour of the First Respondent through the conduct of the Second Respondent, constituted by a threat of assault and the repeated use of obscene language with intent to coerce HCPL to comply with an industrial demand. It describes the context by reference to the following:
·the practice of HCPL to conduct site and safety inductions for each worker prior to the start of working on the site;
·the attendance prior to 9 October 2009 at the inductions of the First Respondent’s shop steward, Mr Prevolsek;
·on 9 October the communication between Mr Prevolsek by HCPL’s site manager, Mr Quinn, of the decision that Mr Prevolsek was no longer to attend inductions on the site;
·the contact between Mr Prevolsek and the Second Respondent and his attendance at the site within 40 minutes to meet Mr Quinn;
·a request made by the Second Respondent to Mr Quinn that he permit Mr Prevolsek’s attendance at the induction; and
·the refusal of Mr Quinn to accede to that request.
The Applicant submits that the coercive behaviour involved the use of unlawful or illegitimate means, namely intimidation by a threat to assault Mr Quinn, and that the Court should place emphasis on those matters.
The Respondents in also addressing the question of the conduct and the circumstances in which it took place consider that the Court should note the following:
·the conduct can properly be characterised as an officer of the First Respondent attending at the site to make an appropriate and reasonable request for Mr Prevolsek to attend inductions as had previously been the practice, but doing so in an unlawful manner;
·the conduct was of a short compass;
·the conduct was by a single person;
·after the conduct, steps were taken by the First Respondent to restore their good relationship with HCPL and to make the request for Mr Prevolsek to attend inductions in a lawful manner;
·the conduct occurred in a context in which the Second Respondent was concerned and Mr Prevolsek was being, in the First Respondent’s terms, unreasonably kept from attending site inductions;
·the conduct occurred in a context in which the First Respondent on their submission believed that having Mr Prevolsek attending inductions was in the interests of the workers on the site; and
·the conduct occurred during a conversation which lasted for only a few minutes.
In relation to the question of the impact of the contraventions, the Applicant submits that the conduct was bound to have an obvious impact on Mr Quinn. The Respondents submit that there is no evidence of any loss or damage sustained as a result of the conduct. The Respondents further submit that the nature of the First Respondent’s contravening conduct was such that the Second Respondent’s conduct was conduct which he engaged in himself and was not part of an industrial strategy or agreement at the highest level of the First Respondent. There is no evidence of involvement of officers of the First Respondent other than the Second Respondent in the incident. However, nor is there any evidence that his actions were not part of an industrial strategy condoned by the First Respondent and I therefore do not give weight to that matter as submitted.
The issue of a previous conduct by the First Respondent has also been raised as a factor in this matter. The First Respondent admits that there have been prior convictions. The First Respondent also admits that those are relevant and justify a higher penalty than would be for a respondent with no prior convictions. However, the First Respondent submits, the fact that there are prior convictions cannot be given such weight as to lead to the imposition of a penalty that is disproportionate to the gravity of the contravention being dealt with in this matter. The Applicant submits that the First Respondent has a deplorable record of contraventions of federal workplace relations legislation and has been penalised on many occasions. The Applicant cites that in the last decade there have been 44 cases in which the First Respondent has been found by this Court and others to have contravened workplace laws.
I accept the First Respondent’s submission that the list of 44 cases does not add to the case. The list of itself does not establish similar prior conduct and some cases post-date the conduct. Nevertheless, it is conceded by the Respondents that the previous convictions of the First Respondent do go to the question of whether the penalty is an appropriate one. Both the Respondents and the Applicant also refer to the question of whether the Respondents’ admission and cooperation in the preparation of the Agreed Facts should be taken into account and how that should be regarded. The Applicant submits that the Respondents’ admissions and co-operations are not a demonstration of contrition, however, does accept that by reaching agreement as to penalty that this has avoided the cost and expense of a contested hearing and that is a matter which should be taken into account.
The Respondents place the conduct of the First Respondent slightly higher in terms of how that matter should be dealt with. The First Respondent submits that the admission of the contravention and the assistance in drafting the Statement of Agreed Facts is indicative of contrition. It further submits that the involvement of the First Respondent in the meeting in the week or weeks after the conduct to lawfully discuss and negotiate the request demonstrates a level of contrition for the actions of the Second Respondent on the day in question. The fact that this meeting occurred, in my view, does not provide evidence of contrition, but it does indicate that both parties wish to move on from the incident and the attendance of both Mr Quinn and the Second Respondent at that meeting would seem to support that conclusion.
In relation to the need for specific and general deterrence the Respondents accept that prior convictions are usually an indication of a need for specific deterrence and also accept that it is important for the outcomes of proceedings such as these to send a message to others by way of general deterrence. The Applicant, again, puts this slightly higher in terms of the need for specific deterrence in this case based on the First Respondent’s prior history and a need for general deterrence in order to secure the objectives of the Act such that a penalty should demonstrate the seriousness of the offence so as to deter others from contravening the relevant provisions.
Conclusions
A building site is not a childcare centre. Both employers and employees and those who represent them may from time to time engage in robust exchanges and even heated disagreement about industrial matters in that context. All employees are, however, entitled to the benefit of a safe workplace. This includes a workplace which is free from abuse, threats and intimidation. The Second Respondent’s actions on 9 October 2009 were totally unacceptable in any workplace. As an officer of the First Respondent he would be aware that his actions were attributable to the First Respondent. It is understandable that the apparent change of policy on the part of the employer communicated to Mr Prevolsek by Mr Quinn would cause concern to the First Respondent and a wish on its part to see that decision reversed. The Second Respondent’s actions, however, were not the right way to go about achieving that aim.
The First Respondent has acknowledged that the Second Respondent was acting in his capacity as an officer of the First Respondent and that by his actions the First Respondent engaged in the conduct and, therefore, contravened s.348 of the Act. The conduct of the Second Respondent was clearly unnecessary and unacceptable. It is instructive that it did not have the desired results where negotiations involving more senior officials of both parties were able to conclude an acceptable outcome. While the action undoubtedly had an impact on Mr Quinn, there was no evidence of any loss or damages to the employer arising from the action.
The Respondents did cooperate with the Applicant in the preparation of the Statement of Agreed Facts and by making concessions which have saved the cost and expense of a contested hearing. At the same time, as emphasised by the Applicant, the First Respondent is what might be called a repeat offender. These were, however, the one off actions of an individual, albeit one acting in his capacity as an official of the First Respondent.
The parties have reached agreement on a penalty to be imposed in the matter. By its submission the Applicant has shown that it has given consideration to the matters which are relevant to determining an appropriate penalty. Likewise, the Respondents have also addressed those considerations. Applying the approach taken by the Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Proprietary Limited, the Court needs to consider if the penalty agreed is in the permissible range and is neither manifestly excessive or manifestly inadequate.
On the material before the Court I am satisfied that in the circumstances of this case the agreed penalty is neither excessive nor inadequate and the Court should, therefore, make the declarations and orders as sought. The Court, therefore, declares that on 9 October 2009 at the RMIT Building 13 construction site at 124 La Trobe Street, Melbourne, the First Respondent contravened s.348 of the Act, by the conduct of its employee, the Second Respondent, who threatened with assault and repeatedly abused with obscene language HCPL site manager, Mr Quinn, and did so with intent to coerce HCPL into complying with its request that its shop steward be committed to attend site inductions.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 7 March 2013
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