Fair Work Ombudsman v Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia (443 Queen St Case)
[2023] FedCFamC2G 957
•26 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia (443 Queen St Case) [2023] FedCFamC2G 957
File number(s): BRG 368 of 2022 Judgment of: JUDGE VASTA Date of judgment: 26 October 2023 Catchwords: INDUSTRIAL LAW – Contraventions of Fair Work Act 2009 (Cth) – pecuniary penalty – agreed penalties ordered Legislation: Fair Work Act 2009 (Cth): s 500, 550, 793 Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate and Ors [2015] HCA 46 (The Agreed Penalties Case)
Mason v Harrington Corporation Proprietary Limited t/as Pangaea Restaurant & Bar [2007] FMCA 7
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 9 October 2023 Date of hearing: In Chambers on the papers Place: Brisbane Solicitor for the Applicant: Ashurst Australia Solicitor for the Respondents: Hall Payne Lawyers ORDERS
BRG 368 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Second Respondent
WENDEL MOLONEY
Fourth Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
26 OCTOBER 2023
PENAL NOTICE TO THE RESPONDENTS:
·COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA; AND
·WENDEL MOLONEY
IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
A.REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR
B.DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
BY CONSENT, THE COURT DECLARES THAT:
1.In contravention of section 500 of the Fair Work Act 2009 (Cth) (“FW Act”), on 15 December 2021 at the Project, Wendel Moloney acted in an improper manner while exercising, or seeking to exercise, a right of entry under Part 3-4, Division 3 of the FW Act by:
(a)failing to report to the Site office; and
(b)failing, when requested, to produce his entry permit and thereafter exercising a State or Territory OHS right.
2.By the operation of sections 793 and 550(2)(c) of the FW Act, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”) was directly or indirectly, knowingly concerned in or party to the contravention set out in declaration 1 and, as a result, the CEPU contravened section 500 of the FW Act.
BY CONSENT, THE COURT ORDERS THAT:
1.Wendel Moloney pay a pecuniary penalty of $3,200 to the Commonwealth of Australia for the conduct referred to in Declaration 1.
2.CEPU pay a pecuniary penalty of $24,000 to the Commonwealth of Australia for the conduct referred to in Declaration 2.
3.The pecuniary penalties referred to in Orders 1 and 2 be paid within 28 days.
4.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
On 1 September 2022, the applicant, Australian Building and Construction Commissioner, asked this Court to, inter-alia, make declarations that the second respondent, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”), and the fourth respondent, Wendel Moloney, had contravened the Fair Work Act 2009 (Cth) (“FW Act”). The applicant also asked that pecuniary penalties be imposed because of those contraventions.
There were other parties originally involved in this action. The matter came into my docket after filing, however, I did not have to have a directions hearing in relation to the matter. This is because the parties presented draft orders by consent and sent them to Chambers. I made such orders on 18 October 2022. I later made amendments to those orders, by consent, on three occasions.
By that time, the applicant had ceased to exist and the application was taken over by the new applicant, Fair Work Ombudsman (“FWO”).
The essence of those orders, that I made by consent, were that the parties would file their material and then participate in a mediation. The mediation occurred on 28 April 2023.
On 16 May 2023, the applicant discontinued the proceedings against the other parties. On 19 May 2023, by consent, I made further orders in Chambers which included making trial directions and setting a trial for two days to commence on 19 October 2023.
In early October, my Chambers were contacted by the parties to say that the matter had been resolved. On 3 October 2023, I made orders, by consent in Chambers, vacating the trial dates and giving the parties leave to file amended pleadings and submissions as to penalty. I noted that the parties had agreed to the penalties that ought to be imposed.
Notwithstanding that agreement, the Court must still bring an independent mind as to whether the penalties are appropriate. I have come to the view that the penalties are appropriate, but I feel that I need to explain my reasoning.
Background
On 15 December 2021, Probuild Constructions Pty Ltd (the occupier) was constructing a 264 apartment residential tower at 443 Queen Street, Brisbane. Part of the building site was on Queen Street. This was demarcated and in control of the occupier. Temporary fencing and hoarding prevented access to the site. On this date there were three “gates” in use to access the site.
Each of the gates had signage on it directing visitors to report to the site office. The occupier had subcontracted different areas of work to third-party subcontractors. Some of those workers were eligible to be members of the second respondent.
The incident
On 15 December 2021, at about 6:30 AM, there was a safety incident on the project. A crane was lowering a load onto a truck. The crane crew unhooked the load. When they did this part of the load rolled off the side of the truck and fell into the loading zone.
Around 7:30 AM that day, a meeting was held, in the shed on the worksite, between the occupier and the subcontractor employees. That meeting discussed the incident from a safety perspective. After the meeting had concluded, employees started leaving the shed to return to work. They were called back by a Construction, Forestry, Maritime, Mining and Energy Union site delegate who asked the subcontractors to return.
At this time, the fourth respondent, who is an organiser for the second respondent, entered the site and walked towards the shed where the safety meeting was being held. He did not report to the site office upon, or after, entering the site.
An official from the occupier spoke to the fourth respondent asking him to sign the site visitor register and asking whether he had his permits (under Queensland workplace health and safety legislation). The fourth respondent did not respond to the official but entered the area and spoke to the workforce.
After this, the fourth respondent left the site. Later that day the fourth respondent sent a text message to the official which contained his entry notice under the Queensland legislation.
Contravention
The applicant contends that the fourth respondent contravened the FW Act. In failing to report to the site office and failing to produce his permits when requested, the fourth respondent acted in an improper manner in exercising his State OHS right. This is a contravention of s. 500 of the FW Act. The applicant contends that the second respondent was a party to the conduct of the fourth respondent and therefore, by virtue of ss. 550 and 793 of the FW Act, has also contravened s. 500 of the FW Act.
The second respondent and the fourth respondent have admitted this contravention.
Having made that admission, it falls to the Court to determine what, if any, pecuniary penalty would be appropriate.
Pecuniary penalties
The law in relation to assessment of pecuniary penalties has really been laid down quite comprehensively. The High Court, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3, said, at paragraph 116 of that judgment:
As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. According to orthodox sentencing conceptions as they apply to the imposition of civil pecuniary penalties, specific deterrence inheres in the sting or burden which the penalty imposes on the contravener. Other things being equal, it is assumed that the greater the sting or burden of the penalty, the more likely it will be that the contravener will seek to avoid the risk of subjection to further penalties and thus the more likely it will be that the contravener is deterred from further contraventions; likewise, the more potent will be the example that the penalty sets for other would-be contraveners and therefore the greater the penalty's general deterrent effect. Conversely, the less the sting or burden that a penalty imposes on a contravener, the less likely it will be that the contravener is deterred from further contraventions and the less the general deterrent effect of the penalty. Ultimately, if a penalty is devoid of sting or burden, it may not have much, if any, specific or general deterrent effect, and so it will be unlikely, or at least less likely, to achieve the specific and general deterrent effects that are the raison d'être of its imposition.
The High Court reaffirmed that principle very recently in the matter of Australian Building and Construction Commissioner v Pattinson [2022] HCA 13. The High Court said, at paragraph 46:
[46]It is important to recall that an “appropriate” penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. …
[47]The penalty that is appropriate to protect the public interest by deterring future contraventions of the Act may also be moderated by taking into account other factors … where those responsible for a contravention of the Act express genuine remorse for the contravention, it might be considered appropriate to impose only a moderate penalty because no more would be necessary to incentivise the contravenors to remain mindful of their remorse and their public expressions of that remorse to the court. Similarly, where the occasion in which a contravention occurred is unlikely to arise in the future because of changes in the membership of an industrial organisation, a modest penalty may be appropriate having regard to the reduced risk of future contraventions.
[48]It is not necessary to multiply examples further. It is sufficient to say that a court empowered by section 546 to impose an “appropriate” penalty must act fairly and reasonably for the purpose of protecting the public interest by deterring future contraventions of the Act.
In Mason v Harrington Corporation Proprietary Limited t/as Pangaea Restaurant & Bar [2007] FMCA 7, which is known as the Pangaea case, the Court went through, in effect, a number of factors the Court should be mindful of when imposing pecuniary penalties. One must be careful, though, in looking at the Pangaea case (Supra), that one does not simply look at those matters as some form of checklist to see whether or not the facts of the case with the particular factors either aggravate or mitigate the penalty. As such, the list compiled in Pangaea (Supra) is extremely useful, but it should not be a formula used by the Court to slavishly come up with some sort of almost mathematical guide for the imposition of penalties.
Notwithstanding what has been said in Pattinson, the principles in Pangea are still apposite when looking at the circumstances of the contravention as well as the circumstances of the contravenor.
Agreed penalties
My task, in assessing pecuniary penalties, has been made very easy because the parties have come to an agreement as to what the penalties should be. In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate and Ors [2015] HCA 46 (The Agreed Penalties Case), the High Court said at paragraph 57:-
More generally, it is entirely consistent with the nature of civil proceedings for a court to make orders by consent and to approve a compromise of proceedings on terms proposed by the parties, provided the court is persuaded that what is proposed is appropriate.
At paragraph 58, the High Court said:-
Possibly, there are exceptions to the general rule. There is, however, no reason in principle or practice why civil penalty proceedings should be treated as an exception. Subject to the court being sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty. To do so is no different in principle or practice from approving an infant's compromise, a custody or property compromise, a group proceeding settlement or a scheme of arrangement.
It seems to me that, unless I am of the view that there is something unacceptable about the penalties arrived at by the parties, I should accept that the penalties are appropriate.
Assessment
The parties have agreed to a pecuniary penalty of $24,000 for the second respondent and $3,200 for the fourth respondent.
I am of the view that these penalties do meet the need for deterrence as espoused by the High Court. The penalty strikes the balance between being oppressive and providing sufficient “sting” to deter in both a specific and general sense.
Order
Having come to that conclusion, I will make orders in terms of the suggested form submitted by the applicant in their written submissions and order that the second respondent pay a pecuniary penalty of $24,000 and the fourth respondent pay a pecuniary penalty of $3,200.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 26 October 2023
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