Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (BBQ Case)
[2023] FedCFamC2G 668
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (BBQ Case) [2023] FedCFamC2G 668
File number(s): BRG 167 of 2022 Judgment of: JUDGE VASTA Date of judgment: 27 July 2023 Catchwords: INDUSTRIAL LAW – penalty hearing – agreed penalties ordered – personal payment order Legislation: Fair Work Act 2009 (Cth): ss 484, 487, 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
CFMMEU v ABCC (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate and Ors [2015] HCA 46
Mason v Harrington Corporation Proprietary Limited t/as Pangaea Restaurant & Bar [2007] FMCA 7
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of last submission/s: 14 July 2023 Date of hearing: In Chambers Place: Brisbane Counsel for the Applicant: Mr Felman of King’s Counsel with Mr Denton Solicitor for the Applicant: Ashurst Australia Counsel for the Respondents: Ms Doust Solicitor for the Respondents: Hall Payne Lawyers ORDERS
BRG 167 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Respondent
MICHAEL RAVBAR
Second Respondent
ANDREW ROBERT BLAKELEY
Third Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
27 JULY 2023
PENAL NOTICE TO THE RESPONDENTS:
·CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION;
·MICHAEL RAVBAR; AND
·ANDREW ROBERT BLAKELEY.
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.
THE COURT DECLARES THAT:
1.On 19 August 2021, the second respondent (Mr Ravbar) contravened s. 500 of the Fair Work Act 2009 (Cth) (FW Act) when he acted in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act at the Gabba Site of the Cross River Rail Project (Project), located between Main Street and Leopard Street, Woollongabba, by:
(a)failing to comply with the notice requirement of s. 487 of the FW Act;
(b)failing to comply with the Project’s requirements to complete a visitor induction;
(c)hosting, or alternatively, participating in, an unauthorised BBQ for the 19 August Workers during ordinary work hours; and
(d)addressing the 19 August Workers during ordinary work hours without authorisation from the Occupier.
2.On 19 August 2021, the third respondent (Mr Blakeley) contravened s. 500 of the FW Act when he acted in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act at the Gabba Site of the Project, located between Main Street and Leopard Street, Woollongabba, by:
(a)failing to comply with the notice requirement of s. 487 of the FW Act;
(b)failing to comply with the Project’s requirements to complete a visitor induction;
(c)directing an unauthorised vehicle and trailer (the BUSSQ vehicle) to enter into a private premises in direct defiance of the wishes of the Occupier;
(d)making physical contact with a representative of the Occupier who was standing in the path of the BUSSQ vehicle;
(e)hosting, or alternatively, participating in, an unauthorised BBQ for the 19 August Workers during ordinary work hours;
(f)addressing the 19 August Workers during ordinary work hours without authorisation from the Occupier; and
(g)refusing and failing to leave the Project when requested to do so by the Occupier.
3.On 24 August 2021, Mr Ravbar contravened s. 500 of the FW Act when he acted in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act at the Roma Site of the Project, located at Roma Street, Brisbane City, by:
(a)failing to comply with the notice requirement of s. 487 of the FW Act;
(b)failing to comply with the Project’s requirements to complete a visitor induction;
(c)hosting, or alternatively, participating in, an unauthorised BBQ for the 24 August Workers during ordinary work hours;
(d)addressing the 24 August Workers during ordinary work hours without authorisation from the Occupier; and
(e)failing to leave the Roma Street Site in the circumstances where he was told by Ms Lauren Mead (on more than one occasion) that he was unauthorised to be on site and to leave.
4.On 24 August 2021, Mr Blakeley contravened s. 500 of the FW Act when he acted in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act at the Roma Site of the Project, located at Roma Street, Brisbane City, by:
(a)failing to comply with the notice requirement of s. 487 of the FW Act;
(b)denying that he was on site pursuant to his right of entry as a permit holder in circumstances where he was so exercising his right of entry;
(c)failing to comply with the Project’s requirements to complete a visitor induction;
(d)hosting, or alternatively, participating in, an unauthorised BBQ for the 24 August Workers during ordinary work hours;
(e)addressing the 24 August Workers with a speech during ordinary work hours as opposed to them performing the building work that they were engaged to perform; and
(f)failing to leave the Roma Street Site in the circumstances where he was told by Mead (on more than one occasion) and told by Mr Gary Lappin that he was unauthorised to be on site and to leave.
5.The first respondent (CFMMEU) contravened:
(a)section 500 of the FW Act on 19 August 2021 by reason of the conduct of Mr Ravbar referred to in declaration 1;
(b)section 500 of the FW Act on 19 August 2021 by reason of the conduct of Mr Blakeley referred to in declaration 2;
(c)section 500 of the FW Act on 24 August 2021 by reason of the conduct of Mr Ravbar referred to in declaration 3;
(d)section 500 of the FW Act on 24 August 2021 by reason of the conduct of Mr Blakeley referred to in declaration 4.
THE COURT ORDERS THAT:
1.The first respondent pay the following pecuniary penalties:
(a)$51,000 in respect of its contraventions referred to in declaration 5(a);
(b)$51,000 in respect of its contraventions referred to in declaration 5(b);
(c)$51,000 in respect of its contravention referred to in declaration 5(c);
(d)$51,000 in respect of its contravention referred to in declaration 5(d).
2.The second respondent pay the following pecuniary penalties:
(a)$4,660 in respect of his contravention referred to in declaration 1;
(b)$4,660 in respect of his contravention referred to in declaration 3.
3.The third respondent pay the following pecuniary penalties:
(a)$6,000 in respect of his contraventions referred to in declarations 2;
(b)$6,000 in respect of his contravention referred to in declaration 4.
4.The second respondent pay the penalties required by Order 2 personally in that he not, whether before or after the payment of those penalties:
(a)seek to have or encourage the first respondent in any way whatsoever, directly or indirectly, to pay to him or for his 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 first respondent in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part.
5.The pecuniary penalties referred to in Orders 1, 2, and 3 be paid to the Commonwealth of Australia within 90 days.
6.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 19 April 2022, the Australian Building and Construction Commissioner (“ABCC”) filed an originating application in this Court seeking declarations that the first respondent, Construction, Forestry, Maritime, Mining and Energy Union (“CFMMEU”), the second respondent, Michael Ravbar, and the third respondent, Andrew Robert Blakely, had contravened s. 500 of the Fair Work Act 2009 (Cth) (“FW Act”). The applicant, ABCC, also sought pecuniary penalties against each of the respondents.
The matter was the subject of many case management orders made, by consent, in Chambers and has never resulted in an actual court appearance. The Court ordered that the parties file their material and then participate in a court ordered mediation. That mediation did not resolve the matter.
On 21 October 2022, I ordered that a trial upon liability alone be set for four days duration commencing on 2 May 2023.
On 25 January 2023, I ordered that the name of the applicant be changed to the Fair Work Ombudsman (“FWO”) after legislation abolished the office of the ABCC.
On 27 April 2023, I made consent orders in Chambers vacating the hearing, allowing for amended pleadings to be filed and for outlines of submissions on the question of penalty to also be filed. I ordered that the penalty hearing was to occur not before 11 AM on 7 August 2023.
On 16 June 2023, I made consent orders in Chambers, for the penalty hearing to be vacated and for the FWO to file a further amended statement of claim by 23 June 2023. I also ordered that the parties file an agreed statement of facts as well as submissions going to the topics of agreed penalties and to a specific claim of the FWO. The parties asked for the matter to be determined “on the papers”.
I reserved judgement on 17 July 2023 in accordance with those orders.
The factual matrix
In late 2019, major construction works commenced on the Cross River Rail Project, which is an infrastructure project centred in Brisbane. The project will construct about 10 km of new rail line with approximately 6 km through new tunnels. Relevantly, a new railway station is to be constructed at Woolloongabba as well as a major upgrade to the current Roma Street railway station.
A number of companies under the banner of the CIMIC Group were the contractor for the project and, as such, were “the Occupier” of the worksites for the project, which included the worksites for the railway stations previously mentioned.
As at August 2021, those worksites were known as “the Gabba worksite” and “the Roma Street worksite”. The hours of work at those worksites, at that particular time, varied, however it is common ground that work would have commenced at both sites by 6:30 AM on work days.
Workers at those sites included members of the first respondent as well as persons who are eligible to be members of the first respondent.
As is usual for such worksites, any visitors to those worksites were required to complete the visitors’ safety induction and to sign in to the site.
19 August 2021 - Gabba worksite
At about 5:45 AM on 19 August 2021, a vehicle with a trailer from the Building Unions Superannuation Scheme Queensland (“BUSSQ”) arrived at the gate of the Gabba worksite. A traffic controller at the worksite approached the vehicle and an occupant of the vehicle told the traffic controller that they were at the worksite for a barbecue (“BBQ”).
The site supervisor then came to the gate at about the same time that the second respondent and the third respondent arrived. The third respondent directed the BUSSQ vehicle to come onto the site but the supervisor placed himself between the vehicle and the boom gates in an attempt to block the vehicle from entering the site.
The third respondent then made physical contact with the supervisor during which the supervisor moved out of the path of the BUSSQ vehicle. The third respondent then continued directing the vehicle through the boom gates and down the site haul road whilst the second respondent followed the vehicle on foot.
Neither the second respondent, nor the third respondent, provided any notice to the Occupier that they would be attending the Gabba worksite; and neither the second respondent, nor the third respondent, completed the visitors’ induction nor did they sign in.
At about 6 AM, the second respondent and the third respondent supervised the persons who had entered the site in the BUSSQ vehicle as they began to set up a BBQ on the site.
At this time, the industrial relations manager for the Occupier approached the third respondent and said words to the effect that “your access is unauthorised and you need to leave”. The third respondent did not respond.
The Occupier’s safety lead then approached the third respondent and told him that he was not authorised to be on site and that he had not signed in as a visitor. The manager again approached the third respondent and said “this is an unauthorised access to site and you need to pack up and leave site”.
Suffice it to say that the Occupier had not organised, or authorised, a BBQ to take place that morning and did not have any advance knowledge that anyone would attempt to organise a BBQ that day.
At about 6:20 AM, there were 50 workers, who had attended the worksite to perform building work that day, who had gathered around the BBQ. At about 6:35 AM, the second respondent addressed the workers for about 10 minutes speaking about the following topics:-
·Covid-19
·how work had stopped at another worksite on the project because there weren’t sufficient wash facilities or amenities
·that he, personally, had met with the State’s Chief Health Officer
·that the position of the first respondent was that vaccines should not be mandatory for construction sites
·that the occupier had to repay millions in wrongly claimed JobKeeper payments
Following this speech, the BUSSQ representatives addressed the workers. After this the third respondent addressed the workers about safety on site and work conditions.
At 7:05 AM, the workers posed for a photo with the Eureka flag as well as a BLF and a CFMEU flag. The workers then began to eat the food cooked at the BBQ.
At about 7:30 AM, the second respondent and the third respondent left the project. About five minutes later, the workers who had attended the BBQ walked back to the crib rooms on site and then started work for the day.
Consequences
The conduct of the second respondent and the third respondent meant that work was delayed from the 6:30 AM pre-start by at least one hour. This delayed all other work on the worksite for at least one hour and it meant that the work that was scheduled to be completed in the morning was not able to be completed as planned.
Both the second respondent and the third respondent entered the Gabba worksite for the purpose of holding discussions with workers who wished to participate in those discussions as per s. 484 of the FW Act. Both the second respondent and the third respondent were exercising rights in accordance with Part 3-4 of the FW Act.
The second respondent acted in an improper manner, on that day, in that he:-
·failed to comply with the notice requirement in s. 487 of the FW Act
·failed to comply with the Gabba worksite’s requirements to complete a visitor induction
·hosted or participated in an unauthorised BBQ for the workers during ordinary work hours
·addressed the workers during ordinary work hours without authorisation from the Occupier
The third respondent acted in an improper manner, on that day, in that he:-
·failed to comply with the notice requirement in s. 487 of the FW act
·failed to comply with the Gabba worksites requirements to complete a visitor induction
·directed an unauthorised vehicle and trailer to enter into a private premises in direct defiance of the wishes of the occupier
·made physical contact with the representative of the Occupier who was standing in the path of the BUSSQ vehicle
·hosted or participated in an unauthorised BBQ for the workers during ordinary work hours
·addressed the workers during ordinary work hours without authorisation from the Occupier
·refused to leave the Gabba worksite when requested to do so by the Occupier
The actions of the second respondent amount to a contravention of s. 500 of the FW Act. The actions of the third respondent amount to a contravention of s. 500 of the FW Act.
24 August 2021 - Roma Street worksite
At about 6 AM on 24 August 2021, the same BUSSQ vehicle and trailer entered the Roma Street worksite without authorisation from the Occupier. At some time before 6:20 AM, both the second respondent and the third respondent entered the Roma Street worksite.
Neither the second respondent, nor the third respondent, had provided any notice to the Occupier that they would be attending the Roma Street site that day. Neither the second respondent, nor the third respondent, completed the visitors’ induction nor did they sign in to the site.
At about 6:17 AM, the third respondent spoke to various workers next to a BBQ that had been set up by occupants of the BUSSQ vehicle. About this time, the industrial relations manager for the occupier approached the third respondent and asked whether he was at the worksite “on a permit”. The third respondent answered “no, I’m just here for the BBQ”.
The manager again asked “so you’re not here on a right of entry?” to which the third respondent answered “no”.
The Occupier had not organised, or authorised, a BBQ to take place at the Roma Street worksite on this day.
The manager told the second respondent and the third respondent, on more than one occasion, that they were unauthorised to be on site and that they should leave the site. Neither the second respondent, nor the third respondent, did so.
Another official of the occupier also told the third respondent that he was unauthorised to be on site and asked him, more than once, to leave the site. The third respondent answered that he would leave the site by 6:30 AM as he “just wanted to talk “super” with the boys”. That official replied “I can live with that”.
At about 6:44 AM, about 25 workers were crowded around the BBQ area. The second respondent addressed the workers about Covid-19 and how the occupier didn’t care about safety or doing the right thing by workers. The third respondent then addressed the workers. The BUSSQ representatives then addressed the workers.
The workers then began eating from the BBQ at about 7:15 AM. This continued until 7:30 AM. The second respondent and the third respondent then left the Roma Street worksite, and the workers then began work for the day.
Consequences
The conduct of the second respondent and the third respondent delayed work on the Roma Street worksite by at least one hour and did not allow for work to be completed in the morning as planned.
Both the second respondent and third respondent were exercising rights in accordance with Part 3-4 of the FW Act.
The second respondent contravened s. 500 of the FW Act in that he:-
·failed to comply with the notice requirement in s. 487 of the FW Act
·failed to comply with the Roma Street worksite’s requirements to complete a visitor induction
·hosted or participated in an unauthorised BBQ for the workers during ordinary work hours
·addressed the workers during ordinary work hours without authorisation from the Occupier
·failed to leave the Roma Street worksite when asked to do so
The third respondent contravened s. 500 of the FW Act in that he:-
·failed to comply with the notice requirement of s. 487 of the FW Act
·denied that he was on-site pursuant to his right of entry as a permit holder in circumstances where he was exercising his right of entry
·fail to comply with the worksite’s requirement to complete a visitor induction
·hosted or participated in an unauthorised BBQ for the workers during ordinary work hours
·addressed the workers with a speech during ordinary work hours as opposed to them performing the building work that they were engaged to perform
·failed to leave the Roma Street worksite when asked to do so
Liability of the first respondent
Both the second respondent and the third respondent are officers of the first respondent. Pursuant to s. 793 of the FW Act the actions and conduct of both the second respondent and the third respondent were also the actions and conduct of the first respondent. It also means that the first respondent possessed the same state of mind as the second respondent and the third respondent in relation to their actions and conduct.
Pursuant to s. 550 of the FW Act, the first respondent was knowingly concerned in the conduct of the second respondent and the third respondent. Therefore, the first respondent was “involved in” the contraventions of the FW Act committed by the second respondent and the third respondent.
This means that the first respondent contravened s. 500 of the FW Act on four occasions by reason of the actions of the second respondent and the third respondent on 19 August 2021 and the actions of the second respondent and the third respondent on 24 August 2021.
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 contavenor.
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.
The maximum penalty for a contravention of s. 500 of the FW act is $13,320 for an individual and $66,600 for a body corporate. This means that the maximum penalty that the second respondent is facing is $26,640 and the maximum penalty that the third respondent is facing is also $26,640. The maximum penalty that the first respondent is facing is one of $266,400.
The parties have agreed that the first respondent should pay a penalty of $51,000 for each contravention which is a total of $204,000. The parties agree that the second respondent should pay a penalty of $4,660 for each contravention which is a total of $9,320. The parties agree that the third respondent should pay a penalty of $6,000 for each contravention which is a total of $12,000.
These totals are different to the totals that I may have imposed but I cannot say that the penalties are inappropriate or unacceptable.
I note that there has been a great deal of cooperation between the three respondents and the FWO. The conduct of the matter has proceeded by way of consent orders from the beginning. There has not been any wastage of court resources in managing the matter through to conclusion. The first time that the matter will be mentioned in court is when I deliver these orders.
I also note that the second respondent and the third respondent no longer have entry permits.
But most impressively, I note that the first respondent enlisted the services of Mr Brian Lacy AO to conduct training for permit holding officials of the first respondent on, specifically, s. 500 of the FW Act. Such training occurred on 13 September 2022. It is actions such as these, from the first respondent, that are concrete demonstrations of remorse and contrition.
Having noted those matters, I am of the view that the agreed penalties are acceptable and appropriate.
Personal payment order
The FWO has asked that I impose a personal payment order upon the second respondent. The second respondent resists such an order.
The second respondent does have prior contraventions of s. 500 of the FW Act. The second respondent is the secretary of the Queensland and Northern Territory Divisional Branch of the Construction and General Division of the first respondent. He is the public voice of the first respondent in Queensland.
However, the second respondent no longer has an entry permit. Objectively, his behaviour was not as serious as that of the third respondent. It may be that the FWO is not seeking a personal payment order against the third respondent, but that has little relevance. The principles in criminal cases where offenders may have “a justifiable sense of grievance” at lower, or different, penalties given to co-offenders, does not apply to a civil penalty regime where, as the High Court has made clear, the only objective is that of deterrence.
There is no doubt that a personal payment order will hit the second respondent in a much harder way than if such an order is not made. The question really is whether such an order is necessary as a deterrent, both specifically to the second respondent (given his position in the ranks of the first respondent) and more generally to the senior officials of the first respondent or any other industrial body who blatantly contravenes the FW Act.
In CFMMEU v ABCC (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 at paragraph 40, the Court said:-
The Union acts through its officials, of whom Mr Myles was, and is, one. The penalty against the individual must be a burden or have a sting to be a deterrent. The history of contravening by the Union, all undertaken through its officials, reflects a willingness to contravene the Act and to pay the penalties as a cost of its approach to industrial relations. Mr Myles has a history of significant contravention. A personal payment order of the kind to which we will come will bring home to him, and others in his position, that he, and they, cannot act in contravention of the Act knowing that Union funds will always bale him, or them, out.
In my view, the position of the second respondent is one where he should have been setting an example of adherence and compliance with the law. The actions of the second respondent were bad enough on 19 August 2021 and, there is little doubt that, he would have known that he had just contravened s. 500 of the FW Act.
To then blatantly contravene in the exact same manner some five days later, illustrates why the deterrent aspect of the imposition of the pecuniary penalty must contain the necessary sting or else it will not be an effective deterrent at all.
For those reasons, I will impose a personal payment order upon the second respondent.
I will make all other orders that have been agreed to by the parties.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 27 July 2023
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