Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (No 2)
[2023] FedCFamC2G 564
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2023] FedCFamC2G 564
File number(s): BRG 81 of 2022 Judgment of: JUDGE EGAN Date of judgment: 29 June 2023 Catchwords: INDUSTRIAL LAW – Imposition of pecuniary penalties – where union official was no longer the holder of a right of entry permit – where union had taken steps to educate its officials as to how to appropriately exercise entry rights – relevant principles – orders accordingly. Legislation: Fair Work Act 2009 (Cth) ss 499, 500, 546, 550, 793.
Work Health and Safety Act 2011 (Cth) ss. 117 and 118.
Cases cited: Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2023] FCA 72
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union(the Titan Cranes Case) [2022] FCA 774
Kelly v Fitzpatrick [2007] FCA 1080
Singtel Optus Pty Ltdv Australian Competition and Consumer Commission [2012] FCAFC 20
Fair Work Ombudsman v AJR Nominees Pty Ltd (No. 2) [2014] FCA 128
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submission/s: 2 June 2023 Date of hearing: 2 June 2023 Place: Brisbane Counsel for the Applicants: Mr M McKechnie Solicitor for the Applicants: K&L Gates Counsel for the Respondent: Mr H Clift Solicitor for the Respondent: Hall Payne ORDERS
BRG 81 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
DEAN LESLEY RIELLY
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
29 June 2023
THE COURT ORDERS THAT:
1.Pursuant to the provisions of sections 546(1) and (3) of the Fair Work Act 2009 (Cth) (FW Act):
(a)The First Respondent pay a pecuniary penalty in the amount of $37,500.00 to the Commonwealth of Australia Consolidated Revenue Fund on or before 4:00pm on 27 July 2023 by reason of its contravention, pursuant to sections 793 and 550(2)(c) of the FW Act, of sections 499 and 500 of the FW Act.
(b)The Second Respondent pay a pecuniary penalty in the amount of $5,500.00 to the Commonwealth of Australia Consolidated Revenue Fund on or before 4.00pm on 27 July 2023 by reason of his contravention of the provisions of sections 499 and 500 of the FW Act.
2.The Applicant have liberty to apply on the giving of two (2) days’ notice by it to the Respondents in the event of any failure on the part of either the First Respondent or the Second Respondent to comply with the orders of the Court as set out in paragraph 1 hereof.
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 EGAN
Introduction
On 21 February 2023, this Court made the following declarations and orders:
IT IS DECLARED THAT:
A.In contravention of section 499 of the Fair Work Act 2009 (Cth) (the FWA), on 1 July 2021 at Lot 3, 142 Albert Street, Brisbane (the Site), Mr Rielly failed to comply with reasonable requests made by representatives of the CBGU JV, the occupier of the Site, to comply with occupational health and safety requirements that applied to the Site, while exercising a State or Territory OHS right, namely to:
(a)sign the Visitor Register;
(b)complete a visitor induction;
(c)not enter the tower crane pad;
(d)leave the tower crane pad;
(e)not enter a restricted area; and
(f)having entered a restricted area, refusing to leave it when requested to do so.
B.In contravention of section 500 of the FWA, on 1 July 2021 at the Site, Mr Rielly acted in an improper manner while exercising or seeking to exercise a right of entry, by:
(a)failing to comply with the Visitor Entry Requirements other than the requirement to make a Covid-19 Mandatory Health Declaration, namely by:
(i)failing to sign the Visitor Register;
(ii)failing to complete a Visitor induction.
(b)failing to comply with the Visitor Conduct Requirements, namely by:
(i)failing to be accompanied by an escort from CBGU JV;
(ii)failing to read and obey all safety signs on the Site; and
(iii)not entering any areas on Site to which access was restricted.
C.By reason of the operation of sections 793 and 550(2)(c) of the FWA, the CFMMEU was directly or indirectly, knowingly concerned in or party to the contraventions set out at paragraphs A and B above and, as a result, the CFMMEU contravened sections 499 and 500 of the FWA.
AND IT IS ORDERED THAT:
3.Pecuniary penalties be imposed upon Mr Rielly pursuant to the provisions of s. 546(1) of the FWA as a result of his contraventions of the provisions of s. 499 and s. 500 of the FWA as set out in paragraphs A and B of the declaratory orders made herein.
4.Pecuniary penalties be imposed upon the CFMMEU pursuant to the provisions of s. 546(1) of the FWA as a result of its contraventions of the provisions of s. 499 and s. 500 of the FWA as set out in paragraphs A and B of the declaratory orders made herein.
5.The date for the hearing of any application for the imposition of pecuniary penalties be adjourned to a date to be fixed.
The conduct giving rise to the making of orders by the Court was undertaken by the second respondent, namely Dean Lesley Rielly (Rielly). It is not without significance that the Court found that requests and requirements made of Rielly ‘ … were treated with disdain and ignored.’ [1]
[1] See [27] of Judgement of the Court handed down on 21 February 2023.
Relevant past conduct on the part of Rielly which needed to be taken into account when assessing pecuniary penalties was as set out in Annexure B to the applicant’s written submissions filed on 4 April 2023, as summarised at [18] of those submissions, as follows:
[18] That timeline can be summarised as follows:
(a)in January to March 2019, Mr Rielly coerced CPB Contractors to take adverse action against Telum Precast (Qld) Pty Ltd at the Coffs Harbour Hospital Project (Coffs Harbour Conduct);
(b)in August 2019, Mr Rielly obstructed a concrete pour on the Woolgoolga to Ballina Pacific Highway upgrade construction project that resulted in the loss of 1.5 working days (W2B Conduct);
(c)in March 2020, proceedings were filed against Mr Rielly in relation to the Coffs Harbour Conduct;
(d)in November 2020, proceedings were filed against Mr Rielly in relation to the W2B Conduct;
(e)in February 2021, the Court found that Mr Rielly was liable for the Coffs Harbour Conduct;
(f)in July 2021, Mr Rielly engaged in the conduct the subject of this proceeding;
(g)in January 2022, the Court imposed a penalty on Mr Rielly for the Coffs Harbour Conduct;
(h)in February 2022, this proceeding was filed against Mr Rielly and the CFMMEU in relation to his conduct on the Cross River Rail Project;
(i)in May 2022, the Court found that Mr Rielly was liable for the W2B Conduct;
(j)in August 2022, the Court imposed a penalty on Mr Rielly for the W2B Conduct (noting that the appeal of that decision was dismissed in March 2023); and
(k)in February 2023, the liability decision was made by the Court in this proceeding.
No doubt with a view to minimise the quantum of any pecuniary penalty imposed upon either the union or Rielly, an affidavit sworn by one Leanne Butkus was filed on behalf of the respondents on 2 May 2023. Ms Butkus deposed such affidavit in her capacity as office manager of the Queensland and Northern Territory Branch of the Construction and General Division of the Construction, Forestry, Maritime, Mining and Energy Union. Paragraphs [4] – [7] of such affidavit relevantly provided information to the effect that Rielly had ceased to hold a right of entry permit under the Fair Work Act 2009 on September 2022, and that he had ceased his employment with the union on 6 September 2022. Those paragraphs were as follows:
[4] I have searched the records of the Union and the CFMEUQ in relation to the employment of the second respondent.
[5]Mr Dean Rielly, the second respondent, ceased to hold a right of entry permit under the Fair Work Act 2009 (Cth) on 2 September 2022 when the application for a new permit was refused by the Fair Work Commission. The permit was then returned by the Union to the Commission.
[6] Mr Rielly ceased his employment with the Union on 6th September 2022.
[7] Mr Rielly is currently employed by the CFMEUQ as an Organiser.
In Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2023] FCA 72 at [55] (CFMMEU v FWO), Rangiah J said as follows:
[55]It was an agreed fact before the primary judge that Mr Ravbar no longer held an entry permit under Pt 3-4 of the Act. In Pattinson (HC), the plurality observed at [47] that a penalty may be moderated by changes in the membership of an industrial organisation which reduce the risk of similar contraventions arising in the future. That Mr Ravbar no longer had an entry permit and could no longer contravene s 500 of the Act was a matter that could bear upon the need for specific deterrence and, consequently, the appropriate penalty. …
Further, the respondents filed an affidavit which had been affirmed by one Brian Lacy who relevantly was a practicing barrister experienced in industrial relations law who had been engaged by the union to provide training to officials of the union who were permit holders. That training was focussed upon:
(a)The principles around the prohibition on acting in an improper manner under s. 500 of the Fair Work Act 2009 (‘FWA’);
(b)The rights of permit holders under s. 118 of the Work Health and Safety Act 2011 (Cth) (‘WHS Act’) when exercising a s. 117 right of entry to investigate suspected contraventions, including in relation to ceasing work where the officials have concerns about whether the employees are exposed to unsafe conditions; and
(c)Alternative options available to permit holders when faced with difficult circumstances on site.
Paragraphs [6] – [12] of the affidavit of Mr Lacy relevantly provided as follows:
[6]I was instructed that, by conducting the training, the CFMMEU was seeking to ensure that the Officials had access to a formal and structured learning setting to provide them with sufficient knowledge to facilitate their compliance with the law in the future.
[7]The training was conducted in person with the Officials at the CFMMEU offices in Brisbane on Tuesday 13 September 2022. Some of the Officials participated by video.
[8]On 15 September 2022, I provided my report to the CFMMEU on the training and instruction that I gave to the Officials (Report).
[9] Annexed and marked BL-1 is a copy of my Report with attachments.
[10]I made an affidavit in Federal Court proceedings QUD231 of 2021 on 16 September 2022, which was then tendered by the Union in the penalty hearing of that matter.
[11]In preparing the Report I read the Harmonised Expert Witness Code of Conduct and I agree to be bound by it.
[12]I have made all necessary inquiries which I believe desirable and appropriate (save for any matters explicitly identified in the Report) and no matters of significance which I regard as relevant have, to my knowledge, been withheld from the Court.
In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union(the Titan Cranes Case) [2022] FCA 774 at [43] – [47] inclusive, Logan J recognised that the Union understood that there was a behavioural problem on the part of some of its officials which required corrective action. His Honour held as follows:
[43]The acknowledgements of contravention were not made at the earliest possible opportunity. The evolution of the pleadings is eloquent proof of that. But they were made. And they were made before it was necessary for affidavit or other evidence to be prepared and filed. Moreover, I am persuaded that the acknowledgements do carry with them, in the overall circumstances, an element of understanding on the part of the CFMMEU and the individual respondents that their conduct was not just unlawful, for that it certainly was, but completely unacceptable in a society governed by the rule of law.
[44]The reason why I hold that view is apparent in an affidavit made by Mr Brian Lacy AO, which was read on behalf of the CFMMEU. Mr Lacy is a distinguished Australian. He held particular responsible positions, in his youth, in Defence Signals, in which necessarily he must have been invested with a high degree of trust and confidence in respect of our nation’s most sensitive national security classified material. He was admitted to the Bar in later life, with a particular expertise in industrial law. His postnominal AO bespeaks a high recognition in our national honour system. He served a term as a senior deputy president of the Industrial Commission’s predecessor, the Australian Industrial Relations Commission. Moreover, he held, at what must have been a difficult time, the highly responsible position of Administrator of the Christmas Island and Cocos and Keeling Islands territories of the Commonwealth
[45]Mr Lacy was commissioned by the CFMMEU, via its industrial officer, to give very particular training indeed to each of the individual respondents about their industrial law responsibilities. There was some controversy as between the parties about what was or was not relevant or admissible in Mr Lacy’s affidavit. As to that, though, I hold exactly the same view as did Snaden J, who was also the beneficiary of like evidence from Mr Lacy, in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2) [2021] FCA 1101 (the Monash Freeway Widening Case). His Honour observed, at [49] – [59], as follows:
[49]The respondents led evidence in the form of an affidavit affirmed on 7 April 2021 by Mr Brian Lacy AO. Parts of that affidavit were objected to in ways to which I shall shortly come; but, in summary, it attested to some training that the Union engaged Mr Lacy AO to provide to its officials, including Simpson, concerning the nature and limits of the rights of entry conferred by part 3-4 of the FW Act. That training, it was said, reflects some effort on the part of the respondents (and in particular the Union) to understand the limits of those statutory powers and to ensure that they are not breached in the future.
[50]Mr Lacy AO is a barrister and a former presidential member of what is now the Fair Work Commission. He is well known to and well respected by those who have practiced in the field of industrial law over recent decades. His expertise undoubtedly extends to the nature and limits of the rights of entry conferred by part 3-4 of the FW Act. The Commissioner did not contend otherwise.
[51]By a report that he provided to the Union after conducting his training session with Simpson, Mr Lacy AO recorded that:
(1)he met with Simpson on 18 January 2021 for the purposes of administering that training;
(2)that meeting lasted for approximately 65 minutes;
(3)during their session, he explained to Simpson why his conduct at the Eumemmering Creek Site on 29 and offended ss 499 and 500 of the FW 30 April 2017 Act;
(4)further, he explained to Simpson why his conduct at the Gate 3 Site on 9 May 2017 contravened s 500 of the FW Act;
(5)during and/or as a result of the training he undertook, Simpson:
(a) agreed that “...it is important that he [Simpson] has a good knowledge and understanding of his responsibilities and obligations under industrial and work health and safety laws”;
(b)stated that he appreciated the opportunity to undertake training in order that he might “...better understand those responsibilities and obligations”;
(c)appeared, to Mr Lacy’s AO observations and from comments that he (Simpson) made during their discussions (but upon which Mr Lacy AO did not elaborate), to understand “...why his conduct contravened sections 499 and 500 of the FW Act”;
(d)struck Mr Lacy AO as “...contrite about the events of April/May 2017 and genuinely committed to compliance in future”; and
(e)appeared to understand “...the steps he needs to take to ensure he does not contravene right of entry provisions in future”.
[52]Before preparing his report, Mr Lacy AO “...read, understood and complied with[,] and agree[d] to be bound by the [Federal Court of Australia] Expert Evidence Practice Note (GPN-EXPT)”.
[53]Attached to Mr Lacy’s AO expert report was correspondence that the Union sent to him on 22 December 2020, by which it requested that he provide training to Simpson. Amongst other things, that correspondence recorded that:
(1) the Union wished to retain Mr Lacy AO to provide to Simpson training “...about his responsibilities and obligations under workplace laws”;
(2) the purpose of that training was “...to ensure Mr Simpson understands and has a good knowledge of his responsibilities and obligations under applicable industrial and work health and safety laws, to assist him to comply with these laws in future”;
(3)the Union wished “...to ensure that Mr Simpson has sufficient knowledge to facilitate his compliance with the law in the future”;
(4)Mr Lacy AO was asked, in particular, to focus upon the circumstances of this case and:
(a)why Simpson’s conduct on 29 and 30 April 2017 was found to have contravened ss 499 and 500 of the FW Act;
(b)why Simpson’s conduct on 9 May 2017 was found to have contravened s 500 of the FW Act; and
(c)what steps Simpson needs to take in future “...to ensure that contraventions of ss 499 and 500 do not occur”;
(5)Mr Lacy AO was requested to prepare a report in respect of the training provided to Simpson; and
(6)any report so prepared would be provided to the court in connection with the penalty hearing that took place on 28 April 2021.
[54]The Commissioner objected to the passages of Mr Lacy’s report that purported to record Simpson’s state of mind or the matters that he appeared, to Mr Lacy, to “understand”. He submitted that those observations were expressions of opinion that did not fall within Mr Lacy’s AO field of expertise and that the court should take no account of them. Broadly, those objections were fairly advanced. To the extent that Mr Lacy AO purported to state in his report what he thought Simpson understood or believed, he trespassed beyond his acknowledged expertise and, respectfully, little if anything can be made of his opinions. To the extent that his observations were products of what Simpson told him, they are admissible under s 66A of the Evidence Act 1995 (Cth) as exceptions to the rule against hearsay. It is difficult to ascertain into which category some of Mr Lacy’s AO observations fall. They are of limited, if any, assistance presently.
[55]It doesn’t much matter. Respectfully, the Commissioner’s objections are largely a distraction. The state of Simpson’s knowledge or understanding after having completed his training is one thing; his apparent willingness to undertake it speaks also to the deterrent effect that the setting of penalties in the present case must strive to achieve. Likewise, it is clear from the brief given to Mr Lacy AO that the Union, having orchestrated the training, should be understood to have exhibited a desire to ensure that Simpson and its other organisers conduct themselves lawfully in the future.
[56]The Commissioner urged the court to approach the training provided by Mr Lacy AO with some caution. It was, he said, comprised of a single, hour-long training session and was, on the documentation available, designed and intended to assist the Union in proceedings such as this one. He described it as an exercise in self-interest.
[57]With respect, that is undoubtedly so; but so to observe is not to acknowledge any relevant want of sincerity on the respondents’ part. The respondents were entitled to take steps to educate themselves with a view to ensuring, first, that they in future avoid the predicament in which they currently find themselves; and, second, that they (and the Union, in particular) can demonstrate why penalties to be imposed upon them in the present circumstances needn’t be as high as they might otherwise need to be (for example, in the Union’s case, because the attitude of belligerence that its history of statutory non-compliance demonstrates is ameliorated, at least to some extent, by a contemporary willingness to ensure that its officials adhere to the requirements of the law).
[58]It may be that history vindicates the Commissioner’s scepticism that the union’s poor record of compliance with the right of entry provisions of part 3-4 of the Fair Work Act continues unabated, and that the training provided by Mr Lacy is exposed over time as something of a stunt designed to dupe the court into imposing lower penalties than might otherwise have been thought appropriate. If that occurs, it might well serve as a circumstance of which future courts take account in assessing the level of penalty necessary to deter repetition of statutory misconduct.
[59]For now, however, I do not share the Commissioner’s cynicism. The training that Mr Lacy AO has administered can only be seen as a welcome development, and as one that reflects well on the union for organising it and on Mr Simpson for agreeing to take it. It reflects an acknowledgment, on the respondents’ part, of wrongdoing – of a problem requiring corrective action. It weighs against other considerations, most obviously, the union’s poor history of statutory contravention, which, in the balance, inform the deterrent effect that the court must strive to achieve through the imposition of penalties in this case.
[46]Making due substitution for the reference by Snaden J, in the passage quoted to Mr Simpson, to the individual respondents in this case, and due amendment of relevant dates, I respectfully agree with everything that his Honour has stated in relation to the evidence of Mr Lacy and regard it as exactly applicable in the present case.
[47]Once again, in the present case, the training which Mr Lacy has administered to each of Mr Seiffert, Mr Murdoch and Mr Rapata can only be seen as a welcome development, or perhaps more aptly, a further welcome development. It is a development that reflects well on the CFMMEU for organising it, and it reflects well on Mr Seiffert, Murdoch and Rapata for agreeing to undertake it. I accept it reflects an acknowledgement on the part of both the individual respondents, as well as the CFMMEU of a problem requiring corrective action. As in the case before Snaden J, it weighs against other considerations, once again, and most obviously, the CFMMEU’s shameful history, as I once observed in Broadway on Ann, of statutory contravention.
Consideration of Submissions as to Penalty
In Kelly v Fitzpatrick [2007] FCA 1080 at [28], Tracey J said as follows:
[28]The respondents have expressed contrition and have put in place mechanisms which are designed to ensure that there will be no repetition of the breaches which have led to the present proceeding. Specific deterrence does not, therefore, loom large as a consideration in determining penalty. It does not follow that the need for general deterrence may be disregarded. As Finkelstein J said in CPSU v Telstra Corporation Limited[2001] FCA 1364; (2001) 108 IR 228 at 231: "even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law’s disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct ..." No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction "must be imposed at a meaningful level": see Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd[2001] FCA 383; [2001] ATPR 41-815 at [13].
It is relevant to consider whether there is evidence of contrition on the part of the wrongdoer, something most often seen by the taking of steps to alleviate any wrongdoing, and the taking of steps with a view to preventing any future contraventions. [2]
[2] ACE Insurance Ltd v Trifunovski (No. 2) [2012] FCA 793 at [113] – [114] per Perram J.
Though any penalty ought to be commensurate with the seriousness of the conduct engaged in, any such penalty should not be crushing or oppressive. [3]
[3] Fair Work Ombudsman v Promoting You Pty Ltd [2012] FMCA 58.
In the present matter, there was no evidence of loss or damage having been suffered by any of the contractors or members of the consortium. In Singtel Optus Pty Ltdv Australian Competition and Consumer Commission [2012] FCAFC 20, the Full Court observed that the absence of loss or damage is a circumstance which usually gave rise to the imposition of a less severe penalty than in circumstances where significant harm had been established. The Court has had regard to such principle.
The Court also has been mindful of the fact that Rielly is no longer a relevant permit holder, and therefore would be unable in the future to be involved in conduct of the kind giving rise to the current litigation. The Court has also been mindful of what was held by Rangiah J in CFMMEU v FWO at [63] – [65] where it was said:
[63]In Pattinson (HC), the plurality held that the purpose of a civil penalty under the Act is “primarily, if not solely”, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act: at [9]. The power conferred by s 546 of the Act is not subject to constraints such as a notion of proportionality drawn from the criminal law: at [10]. Section 546 of the Act does not require that the maximum penalty be reserved for the most serious examples of misconduct: at [49].
[64]The plurality held that what is required is that there be some reasonable relationship between the theoretical maximum and the final penalty imposed: at [10], [53]. That relationship is established where the maximum penalty does not exceed what is reasonably necessary to achieve the purpose of s 546: deterrence of future contraventions of a like kind by the contraveners and others: at [10].
[65]The plurality also observed that where it is evident that a contravention has occurred as a matter of industrial strategy pursued without regard for the law, it is open to a court to reasonably conclude that no penalty short of the maximum would be appropriate: at [67]. Section 546 requires the court to ensure that the penalty strikes a reasonable balance between deterrence and oppressive severity: a penalty greater than is necessary to achieved deterrence would be oppressive: at [40]–[41]. The plurality described the “real task” under s 546 as “fixing the penalty which [the Court] considers fairly and reasonably to be appropriate to protect the public interest from future contraventions of the Act”: at [71].
The fact that Mr Lacy had been engaged by the union to appropriately educate union officials was a step in the right direction in terms of the union recognising that ongoing disobedience evidenced by contraventions of the FWA was widely accepted by the community at large as unacceptable. Due credit ought to be given to the union in that regard, as was acknowledged by Logan J in the Titan Cranes Case.
It was submitted on behalf of the applicant that penalties to be imposed ought to approach the maximum for the union, in part because of the long history of contraventions by the uinion as set out in Annexure B to the applicant’s written submissions. The identified contraventions exceeded 200 in number, with increasing frequency, over a 22 year period.
It was further submitted on behalf of the applicant that a penalty of $6,930.00 – $8,190.00 would be an appropriate penalty for Reilly. The applicant submitted that there was a disconnect between Reilly attending on site purportedly for the carrying out of a safety inspection which in itself resulted in he and others being exposed to safety hazards by his unsupervised attendance on site. Though a clear contravention in doing so, the Court finds that the attendance on site by Reilly did not endanger either himself or others. The evidence before the Court satisfied the Court that to the extent that Reilly was unsupervised, no aspect of the site terrain or traffic constituted a real hazard to him, or otherwise resulted in any other person being endangered. It had been raining on the day in question, and work had largely ceased on site. The machinery present on site was not being operated and therefore could not realistically have constituted a danger to either Reilly or those who were present at the time of his inspection. The Court acknowledged in its reasons for judgement handed down on 21 February 2023 that there was a possibility of injury being sustained by Reilly by reason of his unauthorised entry upon the site, but the Court does not put any such possibility of injury as being other than remote. The attempt to characterise Reilly’s presence on site as dangerous was unmeritorious.
It was submitted on behalf of the respondents that any penalties ought to be at “the lower end of the scale” because Reilly no longer held a right of entry permit, and because Mr Lacy had been engaged to educate officials of the union as to how they ought to appropriately engage when seeking to exercise rights of entry under the FWA. There is merit in those submissions.
Reilly’s conduct was not coercive in nature, but rather might best be characterised as high-handed and arrogant. The Court finds that Reilly’s contraventions were the result of his own exercise of will, rather than constituting part of an orchestrated union ploy to disrupt work on site. There was no evidence that either senior management of the union, or any other union official, counselled or procured Reilly’s contraventions. There was no evidence of other similar contravening conduct by Reilly on the day.
The Court accepts that the engagement of Mr Lacy constituted evidence of contrition on the part of the union. The union had attempted to take corrective action to prevent the behaviour of Reilly being repeated in the future.
There is nonetheless a requirement that any penalty act as a deterrent to dissuade others from being involved in conduct of the kind evident in the current matter. It was accepted by the respondents that the respondents had not co-operated with enforcement authorities. [4]
[4] Paragraph [23] of the Respondents’ written submissions on penalty filed on 2 May 2023.
Penalty
It was admitted by the union that Rielly was relevantly involved in the relevant contraventions, and that it was accessorily liable by reason of such contraventions.
The maximum penalties able to be imposed for a contravention of s. 499 of the FWA at the relevant time were the sum of $63,000.00 for the Union, and the sum of $12,600.00 for Rielly. In this matter, the penalties to be imposed have not been discounted by reason of the fact that the respondents had not co-operated with the enforcement authority. [5]
[5] Fair Work Ombudsman v AJR Nominees Pty Ltd (No. 2) [2014] FCA 128 at [51] per Gilmour J.
Having had regard to all of the submissions made on behalf of both the applicant and the respondents, and the evidence before the Court, the Court is of the view that pecuniary penalties ought to be respectively imposed as follows:
(a)As Against The Union $37,500.00
(b)As Against Rielly $5,500.00
And it is so ordered.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 29 June 2023
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