Fair Work Ombudsman v Albert (No 3)

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FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Albert (No 3) [2023] FCA 220   

File number(s): QUD 656 of 2019
Judgment of: COLLIER J
Date of judgment: 16 March 2023
Catchwords:  INDUSTRIAL LAW – imposition of pecuniary penalties – agreed contraventions of s 500 of the Fair Work Act 2009 (Cth) – determination of appropriate penalty – principles relating to appropriate penalty – whether personal payment order be made against individual respondents – general deterrence – specific deterrence
Legislation:

Fair Work Act 2009 (Cth)

Evidence Act 1995 (Cth)
Cases cited:

ABCC v Holl (The Wheeler Cranes Case) [2021] FCA 1480

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Toowoomba Bypass Case) [2021] FCA 1128

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) (No 2) [2022] FCA 19

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Morphettville Park Case) [2021] FCA 1640

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (the WGC Cranes Case) [2021] FCA 622

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Bendigo Theatre Case) (No 2) [2018] FCA 121

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2022] FedCFamC2G 40

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at 195 [162]; [2018] HCA 3

Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd (No 2) [2021] FCA 1149

Australian Building and Construction Commissioner v Ingham (180 Brisbane Construction Case) (No 2) [2021] FCA 263

Australian Building and Construction Commissioner v Ravbar (No 2) [2019] FCA 522

Australian Competition and Consumer Commission (ACCC) v Construction, Forestry, Maritime, Mining and Energy Union (Adelaide Airport Case) [2021] FCA 951

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25

Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640

Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560

BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2023] FCA 72

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 798

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Mitcham Rail Case) [2015] FCA 1173

Hamberger, Employment Advocate v Construction, Forestry, Maritime, Mining and Energy Union [2002] FCA 586

Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383

Trade Practices Commission…

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Details
Case
[2023] FCA 220
Decision Date

CaseChat Overview and Summary

In the matter of Fair Work Ombudsman v Albert (No 3), the court was required to determine the appropriate pecuniary penalties to be imposed on each of the respondents for their contravention of section 500 of the Fair Work Act 2009 (Cth). The case involved Messrs Albert, Hynes, and Ravbar, officers of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), who had entered a construction site under the guise of their entry permits and allegedly hindered or obstructed certain individuals. The court needed to decide the amount of penalty and whether to impose personal payment orders on the second and third respondents.

The court considered several factors in determining the appropriate penalty, including the nature and seriousness of the contraventions, the need for deterrence, and the personal circumstances of the respondents. The court noted that the respondents had prior contraventions, held senior positions, and their conduct was deliberate. The court also considered the principle of parity, which suggested that it was not appropriate to order personal payment from the second and third respondents. Ultimately, the court imposed pecuniary penalties on each of the respondents, with personal payment orders for the second and third respondents, prohibiting them from seeking or receiving financial benefits related to the penalties from the CFMMEU.

The court's decision was based on the principles of deterrence and the need to ensure compliance with the Fair Work Act. The court emphasised that civil penalties serve primarily to deter repetition of the contravention by the contravenors and others who might be tempted to contravene the Act. The penalties imposed were intended to reflect the seriousness of the contraventions and to promote compliance with the law.

Orders

Orders of the court

1. The first respondent, Mr Te Aranui Albert, pay pecuniary penalties totalling $7,000.00.

2. The second respondent, Mr Blake Hynes, pay pecuniary penalties totalling $12,000.00.

3. The third respondent, Mr Michael Ravbar, pay pecuniary penalties totalling $7,000.00.

4. The fourth respondent, the CFMMEU, pay pecuniary penalties totalling $88,000.00.

5. The pecuniary penalties referred to in orders 1 to 4 above be paid to the Commonwealth of Australia within 28 days of the date of this order.

6. The second and third respondents must pay the penalties imposed upon them by the Orders 2 and 3 personally in that they not, whether before or after the payment of the penalty:

a. seek to have or encourage the fourth respondent in any way whatsoever, directly or indirectly, to pay to them or for their financial benefit in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part; and

b. accept or receive from the fourth respondent in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part.

7. A copy of these orders be served by the applicant on:

(a) Each of the first to third respondents in accordance with rule 10.01 of the Federal Court Rules 2011 (Cth); and

(b) The fourth respondent in accordance with rule 10.04 of the Federal Court Rules 2011 (Cth).

8. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Plainly, given the agreed contraventions, remaining for determination by the Court is the imposition of penalty on each of the respondents, including the amount of the penalty and whether a personal payment order be imposed on the second and third respondents. BACKGROUND This matter originally came before me for hearing on liability on 2, 3, 4, 5 and 22 March 2021. The trial was to resume before me on 2 August 2021 for a further period of 2 weeks. By Order of 27 July 2021 the trial was vacated, with further hearing to be fixed in consultation with the parties. The matter was then set to recommence on 27 April 2022 until 11 May 2022. On 19 April 2022 the parties resolved the issue of liability and returned before me on 11 May 2022 for hearing on penalty. By a second further amended statement of claim (statement of claim) and amended defence the facts in this matter were agreed. On 11 May 2022 the parties filed a provisionally agreed statement of facts to be read in conjunction with the statement of claim. I will return to this document later in these reasons. Relevant facts are as follows. Messrs Albert, Hynes and Ravbar, (collectively the Officials) were, at all material times, officers of the fourth respondent (the CFMMEU) and acting on behalf of the CFMMEU within the scope of their actual or apparent authority. Each of the Officials held a Federal Entry Permit and State Entry Permit within the meaning of s 12 the Fair Work Act and Part 7 of the Work Health and Safety Act 2011 (Cth) (WHS Act) for the relevant dates of entry. It is not in dispute that the Officials had valid entry permits. Fulton Hogan Construction Pty Ltd (Fulton Hogan) and Seymour Whyte Constructions Pty Ltd (Seymour Whyte) formed Fulton Hogan Seymour Whyte JV (ABN 23 446 040 210) to undertake the upgrade of the Bruce Highway, from Caloundra Road to the Sunshine Motorway (the Project). Relevant to this matter, the Project site included:·Construction of a bridge referred to as “Bridge 21” (Bridge 21 Site);·A site along Caloundra Road where widening works were taking place (Caloundra Road Widening Site); and ·A site along the Bruce Highway (Bruce Highway Site). At all material times the following persons were employed by either Fulton Hogan or Seymour Whyte in relation to the Project works:(1)Mr Adriaan Barendsen - Nightshift Health, Safety and Environment Adviser;(2)Mr Dareen Steen Andrew - Area Manager/Senior Project Engineer for Structures;(3)Mr Sean Cuffe - Safety Manager; (4)Mr Michael Fischer - Nightshift Supervisor; and (5)Mr Kurt Vorgias - Structures Supervisor. Entry on 23 July 2018 On 23 July 2018 at approximately 8.20pm, the Officials attended the site office at the Project site (Site Office). Upon attending the Site Office the Officials informed Mr Barendsen that they were authorised to enter the Project site pursuant to their respective permits and written entry notices, and requested to be taken to the Bridge 21 Site where a suspected contravention or contraventions of the WHS Act had or were occurring.

Evidence

Evidence Before The Court

It followed that, had this been a case where the Court made findings on liability and the applicant’s contention regarding evidence was correct, it would then be at liberty to file further material relevant to that which had already been the subject of the Court’s ruling. There was no suggestion that matters contained in the affidavits on which the applicant sought to rely could not have been pleaded, and that by seeking to rely on the evidence at this point in time the applicant was inviting the Court to make further findings of fact. In particular, the respondent relied on the observations of Bromberg J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859 as follows:[8]At a pre-trial conference in the week before the trial, I granted leave to the CFMEU to substantially amend its Defence in the proceeding, such that the issues remaining in dispute narrowed significantly. By its Further Amended Defence, the CFMEU admitted all of the material facts pleaded in the Commissioner’s Further Amended Statement of Claim. In substance, what remained of the CFMEU’s case was the denial that BPM’s actions may be characterised as “industrial activity”. …[10]As I have indicated, all of the material facts relied upon by the Commissioner in his Further Amended Statement of Claim have been admitted by the CFMEU in its Further Amended Defence. The Commissioner nevertheless elected to lead evidence in support of his case, including by calling two witnesses. Neither of the Commissioner’s witnesses were cross-examined by the CFMEU, and the subject of the evidence tendered was otherwise uncontroversial.[11]However, it was precisely because the evidence was uncontroversial that the CFMEU objected to its tender. It was said that evidence going to a fact which had been admitted was not evidence going to a fact in issue, and was therefore not relevant and inadmissible.[12]Rather than dealing with the objections to the evidence on a case by case basis at the time, it was agreed between the parties that all of the Commissioner’s evidence would be admitted subject to that overarching objection. The Commissioner accepted that in dealing with the evidence in this way, he would be more strictly confined to the case put in his Further Amended Statement of Claim. First, the Commissioner would foreclose any opportunity to amend his Further Amended Statement of Claim if evidence were later found not to go to any material fact in issue. Second, it would also follow that where a matter had not been pleaded, the Commissioner could not later contend on the basis of evidence the subject of objection that the matter was nevertheless “in the ring”.[13]With all of this in mind, I propose to recount the background facts below taking into account all of the evidence not objected to. I shall address some specific issues that arise under the objection or in relation to the pleadings in the course of my consideration of each of the claims, but broadly speaking it has not been necessary to take into account the evidence the subject of objection. If it had been necessary to do so I would have upheld the CFMEU’s objection on the basis that the evidence travelled beyond the facts in issue as identified on the pleadings.(emphasis added)

Decision

Reasons for decision

I am satisfied that it is appropriate in this matter to make personal payment orders against Mr Hynes and Mr Ravbar for the following reasons: ·They both have prior contraventions of s 500 of the Fair Work Act; ·I understand that at the time of the contraventions they both held senior positions at the CFMMEU;·That they ceased to hold an entry permit does not in and of itself negate the need for specific deterrence in circumstances where they are at liberty to apply for an entry permit at a future point in time;·That Mr Hynes is no longer employed by the CFMMEU (but rather the CFMEUQ) does not negate that need for deterrence; and ·Their conduct was deliberate.CONCLUSION I have made the declarations on which the parties have agreed. I also make orders penalising the three Officials and the CFMMEU in the sums mentioned, such penalties to be paid to the Commonwealth within 28 days.

Ratio Decidendi

Legal Principle Established

In summary, the respondent submitted:·Despite the applicant’s submission that there were four courses of conduct pleaded against the CFMMEU, the events of 23 July 2018 constituted one course of conduct, and the events of 24 July 2018 constituted a second course of conduct for the union;·The course of conduct before the Court was not part of a campaign, capable of being contrasted with the “no ticket, no start” strategy as found in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13.·The Court should take a similar approach to that in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Toowoomba Bypass Case) [2021] FCA 1128;·When considering prior contravening conduct of Mr Ravbar, it should be noted that Mr Ravbar has been employed by the CFMMEU for 32 years. In those 32 years Mr Ravbar had (excluding a contravention that occurred after the facts in this case) 2 prior contraventions, in 1999 and 2012. The Court should not find this previous conduct as a continued defiance of the law given Mr Ravbar’s lengthy career; ·On the basis of the evidence before the Court, the harm suffered could not be categorised as extensive, nor having significant impact on the objective gravity of the conduct;·The respondents ought not be criticised for the late admissions. There had been a corresponding abandonment by the applicant of aspects of its claim in reaching a consensus on liability;·The first to third respondents were no longer in a position to repeat the conduct in question given that they no longer held federal entry permits; and·On the principle of parity, it was not appropriate for the Court to order personal payment from the second and third respondents.CONSIDERATION Section 546 (1) of the Fair Work Act vests in this Court the power to impose civil penalties referrable to a contravention of a civil remedy provision. It provides: Pecuniary penalty orders(1) The Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision. The contraventions in this matter concern s 500 of the Fair Work Act, as follows:Permit holder must not hinder or obstruct A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.Note 1: This section is a civil remedy provision … Principles relevant to the imposition of penalties are well-known. In Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13, the majority explained at [15]:15 Most importantly, it has long been recognised that, unlike criminal sentences, civil penalties are imposed primarily, if not solely, for the purpose of deterrence. The plurality in the Agreed Penalties Case said:"[W]hereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance: 'Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act] … The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.'"(emphasis added, footnotes omitted)