Gregor v CFMEU

Case [2011] FCA 808

FEDERAL COURT OF AUSTRALIA

Gregor v Construction Forestry Mining and Energy Union [2011] FCA 808

Citation: Gregor v Construction Forestry Mining and Energy Union [2011] FCA 808
Parties:

MURRAY GREGOR v CONSTRUCTION FORESTRY MINING AND ENERGY UNION, DEREK CHRISTOPHER, MATT HUDSON, SHAUN REARDON, JOHN SETKA, ELIAS SPERNOVASILIS and NOEL WASHINGTON

MICHELLE COZADINOS v CONSTRUCTION FORESTRY MINING AND ENERGY UNION, MATT HUDSON, ADRIAN MCLOUGHLIN, SHAUN REARDON and NOEL WASHINGTON

File numbers: VID 307 of 2010
VID 369 of 2010
Judge: MARSHALL J
Date of judgment: 20 July 2011
Catchwords: INDUSTRIAL LAW – penalty hearing – admitted contraventions of ss 38 and 43 of the Building and Construction Industry Improvement Act 2005 (Cth) – agreed penalty – relevant considerations in assessing appropriateness of agreed penalty
Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 38, 43, 49(6), 57
Crimes Act 1914 (Cth) s 4AA
Cases cited: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426
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
Rural Press v Australian Competition and Consumer Commission (2002) 118 FCR 304
Duffy v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 299
Veen v The Queen (No 2) (1988) 164 CLR 465
Date of hearing: 27 June 2011
Place: Melbourne
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 30
Counsel for the Applicants: Mr J Bourke SC
Solicitor for the Applicants: Freehills
Counsel for the Respondents: Mr C Dowling
Solicitor for the Respondents: Slater & Gordon

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 307 of 2010

BETWEEN:

MURRAY GREGOR
Applicant
AND:

CONSTRUCTION FORESTRY MINING AND ENERGY UNION
First Respondent

DEREK CHRISTOPHER
Second Respondent

MATT HUDSON
Third Respondent

SHAUN REARDON
Fourth Respondent

JOHN SETKA
Fifth Respondent

ELIAS SPERNOVASILIS
Sixth Respondent

NOEL WASHINGTON
Seventh Respondent

JUDGE:

MARSHALL ACJ

DATE OF ORDER:

27 JUNE 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.A penalty of $18,000 be imposed on the Construction Forestry, Mining and Energy Union for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

2.A penalty of $2,000 be imposed on Matt Hudson for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a…

Continue reading Gregor v CFMEU

Sign in free to access the full text

Details
AGLC
Gregor v CFMEU [2011] FCA 808
Case
[2011] FCA 808
Decision Date

CaseChat Overview and Summary

In the Federal Court, Murray Gregor and Michelle Cozadinos brought proceedings against the Construction, Forestry, Mining and Energy Union (CFMEU) and several of its members for contraventions of the Building and Construction Industry Improvement Act 2005 (Cth). The applicants, who are Australian Building and Construction Inspectors, sought penalties for unlawful industrial actions and breaches of certain provisions in the Act. The contraventions in question involved industrial actions at various construction sites in Victoria, including the Royal Children’s Hospital and Victoria Harbour, occurring between October 2008 and February 2009.

The court was required to decide whether the penalties agreed upon by the parties were appropriate. The applicants and respondents had agreed on specific penalties for each contravention. The court considered the nature and extent of the conduct, the circumstances in which it took place, and other relevant factors such as the need for deterrence and compliance with the Act. The court needed to determine whether the agreed penalties were within the permissible range for such contraventions, referencing previous case law on penalty determination.

The court concluded that the agreed penalties were appropriate in all circumstances. The penalties for the CFMEU were in the medium range, reflecting the seriousness of the contraventions. For the individual respondents, the court noted some concerns about imposing penalties on individuals performing their roles in accordance with union policy, particularly in the absence of prior contraventions. However, given the agreement between the parties, the court accepted the penalties as appropriate. The total penalties agreed upon amounted to $415,000, which was deemed suitable considering the nature of the contraventions and the need for compliance and deterrence.

The court ordered specific penalties for the CFMEU and individual respondents for various contraventions, ensuring each penalty was proportionate to the seriousness of the actions. The total penalties were to be paid to the Consolidated Revenue Fund within 28 days of the court's order. The court also noted that each party would bear their own costs for the proceedings.

Orders

Orders of the court

1. A penalty of $18,000 be imposed on the Construction Forestry, Mining and Energy Union for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

2. A penalty of $2,000 be imposed on Matt Hudson for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

3. A penalty of $2,000 be imposed on Noel Washington for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

4. A penalty of $2,000 be imposed on Derek Christopher for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

5. A penalty of $2,000 be imposed on John Setka for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

6. A penalty of $2,000 be imposed on Elias Spernovasilis for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

7. A penalty of $2,000 be imposed on Shaun Reardon for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

12 and 15 December 2008 – 52 Flemington Road, Parkville

8. A penalty of $30,000 be imposed on the Construction Forestry, Mining and Energy Union for procuring the stoppage of work on the construction site at 52 Flemington Road, Parkville, Victoria on 12 and 15 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

9. A penalty of $5,000 be imposed on Matt Hudson for procuring the stoppage of work on the construction site at 52 Flemington Road, Parkville, Victoria on 12 and 15 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

10. A penalty of $5,000 be imposed on Noel Washington for procuring the stoppage of work on the construction site at 52 Flemington Road, Parkville, Victoria on 12 and 15 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

12 and 13 February 2009 – 52 Flemington Road, Parkville

11. A penalty of $40,000 be imposed on the Construction Forestry, Mining and Energy Union for procuring the stoppage of work on the construction site at 52 Flemington Road, Parkville, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

12. A penalty of $5,000 be imposed on Matt Hudson for procuring the stoppage of work on the construction site at 52 Flemington Road, Parkville, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

13. A penalty of $5,000 be imposed on Noel Washington for procuring the stoppage of work on the construction site at 52 Flemington Road, Parkville, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

12 and 13 February 2009 – 637 Chapel Road, South Yarra

14. A penalty of $30,000 be imposed on the Construction Forestry, Mining and Energy Union for procuring the stoppage of work on the construction site at 637 Chapel Road, South Yarra, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

12 and 13 February 2009 – Victoria Harbour

15. A penalty of $30,000 be imposed on the Construction Forestry, Mining and Energy Union for procuring the stoppage of work on the construction sites at 800 Collins Street, Docklands, Victoria, 833 Collins Street, Docklands, Victoria and 834 Bourke Street, Docklands, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

16. A penalty of $5,000 be imposed on Derek Christopher for procuring the stoppage of work on the construction sites at 800 Collins Street, Docklands, Victoria, 833 Collins Street, Docklands, Victoria and 834 Bourke Street, Docklands, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

17. A penalty of $5,000 be imposed on Elias Spernovasilis for procuring the stoppage of work on the construction sites at 800 Collins Street, Docklands, Victoria, 833 Collins Street, Docklands, Victoria and 834 Bourke Street, Docklands, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

18. A penalty of $5,000 be imposed on Shaun Reardon for procuring the stoppage of work on the construction sites at 800 Collins Street, Docklands, Victoria, 833 Collins Street, Docklands, Victoria and 834 Bourke Street, Docklands, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

12 and 13 February 2009 – 717 Bourke Street, Docklands

19. A penalty of $30,000 be imposed on the Construction Forestry, Mining and Energy Union for procuring the stoppage of work on the construction site at 717 Bourke Street, Docklands, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

20. A penalty of $5,000 be imposed on Elias Spernovasilis for procuring the stoppage of work on the construction site at 717 Bourke Street, Docklands, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

21. A penalty of $5,000 be imposed on Shaun Reardon for procuring the stoppage of work on the construction site at 717 Bourke Street, Docklands, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

18 February to 2 March – 52 Flemington Road, Parkville

22. A penalty of $40,000 be imposed on the Construction Forestry, Mining and Energy Union for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria between 18 February and 2 March 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

23. A penalty of $5,000 be imposed on Matt Hudson for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria between 18 February and 2 March 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

24. A penalty of $5,000 be imposed on Noel Washington for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria between 18 February and 2 March 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

25. A penalty of $5,000 be imposed on Derek Christopher for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria between 18 February and 2 March 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

26. A penalty of $5,000 be imposed on John Setka for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria between 18 February and 2 March 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

27. A penalty of $5,000 be imposed on Elias Spernovasilis for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria between 18 February and 2 March 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

28. A penalty of $5,000 be imposed on Shaun Reardon for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria between 18 February and 2 March 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

29. The penalties referred to in orders 1 to 28 above be paid to the Consolidated Revenue Fund within 28 days of the date on which this order is made.

Note:

15 and 16 October 2008 – 52 Flemington Road, Parkville

1. A penalty of $35,000 be imposed on the Construction Forestry, Mining and Energy Union for engaging in unlawful industrial action on the construction site at 52 Flemington Road, Parkville, Victoria on 15 and 16 October 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

2. A penalty of $5,000 be imposed on Shaun Reardon for engaging in unlawful industrial action on the construction site at 52 Flemington Road, Parkville, Victoria on 15 and 16 October 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

3. A penalty of $5,000 be imposed on Matt Hudson for engaging in unlawful industrial action on the construction site at 52 Flemington Road, Parkville, Victoria on 15 and 16 October 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

15 and 16 October 2008 – Victoria Harbour

4. A penalty of $20,000 be imposed on the Construction Forestry, Mining and Energy Union for engaging in unlawful industrial action on the construction sites at 800 Collins Street, Docklands, Victoria, 833 Collins Street, Docklands, and 1 Encounter Way, Docklands, Victoria on 15 and 16 October 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

5. A penalty of $5,000 be imposed on Adrian McLoughlin for engaging in unlawful industrial action on the construction sites at 800 Collins Street, Docklands, Victoria, 833 Collins Street Docklands, and 1 Encounter Way, Docklands, Victoria on 15 and 16 October 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

6. A penalty of $5,000 be imposed on Derek Christopher for engaging in unlawful industrial action on the construction sites at 800 Collins Street, Docklands, Victoria, 833 Collins Street Docklands, and 1 Encounter Way, Docklands, Victoria on 15 and 16 October 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

28 and 29 November 2008 – 52 Flemington Road, Parkville

7. A penalty of $30,000 be imposed on the Construction Forestry, Mining and Energy Union for engaging in unlawful industrial action on the construction site at 52 Flemington Road, Parkville, Victoria on 28 and 29 November 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

8. A penalty of $5,000 be imposed on Matt Hudson for engaging in unlawful industrial action on the construction site at 52 Flemington Road, Parkville, Victoria on 28 and 29 November 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

9. The penalties referred to in orders 1 to 8 above be paid to the Consolidated Revenue Fund within 28 days of the date on which this order is made.

Note:

Background

Background to the litigation

On 27 June 2011, I made the Orders set out in the orders pages of this judgment. What follows are my reasons for doing so.BACKGROUND The proceeding brought by Murray Gregor in VID 307/2010 (‘the Gregor proceeding’) and the proceeding brought by Michelle Cozadinos in VID 369/2010 (‘the Cozadinos proceeding’) relate to the same interests and events. It is convenient to deal with the two matters together. Murray Gregor and Michelle Cozadinos (“the applicants”) seek orders imposing pecuniary penalties on the first respondent, the Construction, Forestry, Mining and Energy Union (‘CFMEU’) and the other respondents, who are all CFMEU employees, organisers and/or members, for contraventions of ss 38 and 43 of the Building and Construction Industry Improvement Act 2005 (Cth) (‘the BCII Act’). The applicants are Australian Building and Construction Inspectors appointed under s 57 of the BCII Act, and they are therefore entitled to bring proceedings pursuant to s 49(6) of the BCII Act. On 25 May 2011, the applicants filed a joint Statement of Agreed Facts and Admissions, submitting that a number of contraventions should be found to have been committed by the relevant respondents. The Statement of Agreed Facts and Admissions is attached to this judgment as Annexure 1 (“Annexure 1”). Annexure 2 is a table that sets out the relevant agreed contraventions and penalties for each separate respondent (“Annexure 2”). The matters proceeded by way of admitted contraventions and agreed proposed penalties.CONTRAVENTIONS OF THE BCII ACT In the Cozadinos proceeding, the contraventions involve the following:·unlawful industrial action at the Royal Children’s Hospital site on 15 and 16 October 2008;·unlawful industrial action at building sites at Victoria Harbour on 15 and 16 October 2008; and·unlawful industrial action at the Royal Children’s Hospital site on 28 and 29 November 2008.The contraventions which are admitted in the Cozadinos proceeding involve contraventions of s 38 of the BCII Act. In the Gregor proceeding, the contraventions involve the following:·a block blockade of the Royal Children’s Hospital on 12 December 2008; ·industrial action at the Royal Children’s Hospital on 12 and 15 December 2008; ·industrial action at the Royal Children’s Hospital on 12 and 13 February 2009; ·industrial action on 12 and 13 February 2009 at the Olsen building site; ·industrial action on 12 and 13 February 2009 at Victoria Harbour; ·industrial action on 12 and 13 February 2009 at the Robin building site; and ·a blockade at the Royal Children’s Hospital between 18 February and 2 March 2009.The contraventions which are admitted in the Gregor proceeding concern s 43 of the BCII Act.THE PENALTY PROVISIONS Section 38 of the BCII Act provides that “a person must not engage in unlawful industrial action”. Conduct is unlawful industrial action if it is industrially motivated, constitutionally connected action and is not excluded action.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The positions held by the above named respondents are to be taken into account, though it is likely that some of these parties may not have been acting autonomously in contravening the BCII Act, but carrying out their roles in accordance with CFMEU policy.CONCLUSION In view of considerations discussed the agreed penalty is in the medium range for the contraventions by the CFMEU. The penalty agreed is appropriate in all the circumstances. With regard to the individual respondents, I consider the agreed penalties to be in the medium range. I note, however, that I have some concerns about imposing a monetary penalty on the individual respondents for performing their jobs in accordance with the approach to industrial relations taken by their employer, in circumstances where that respondent has had a monetary penalty imposed on it. Absent the parties agreement I may not have imposed penalties in the same range, particularly given that in some instances the individual named respondents have had no prior contraventions found against them. COSTS The parties have agreed that each should bear his and its own costs of the proceeding.

Ratio Decidendi

Legal Principle Established

In summary, the applicants and respondents agree that the appropriate penalties for the various contraventions (set out in Annexure 2) are:·$303,000 for the CFMEU (for 10 contraventions, representing 27.5% of the maximum penalty); ·$22,000 for the Mr Reardon (for five contraventions, representing 20% of the maximum penalty); ·$27,000 for Mr Hudson (for five contraventions, representing 24.5% of the maximum penalty); ·$5,000 for Mr McLoughlin (for one contravention, representing 22.7% of the maximum penalty); ·$17,000 for Mr Christopher (for four contraventions, representing 19.3% of the maximum penalty);·$17,000 for Mr Washington (for four contraventions, representing 19.3% of the maximum penalty); ·$7,000 for Mr Setka (for two contraventions, representing 31% of the maximum penalty); and·$17,000 for Mr Spernovasilis (for four contraventions, representing 19.3% of the maximum penalty). The total penalties agreed between the parties amount to $415,000. CONSIDERATION In light of the parties’ agreement as to the appropriate penalties to be imposed, the relevant question for this Court is whether the agreed penalty is “appropriate in all the circumstances”; see Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 per Branson, Sackville and Gyles JJ at [51]. This reasoning was adopted from NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285. As pointed out in Mobil Oil, the determination of penalties in the context of such agreement is not an exact science. The question is not whether the Court would have arrived at the same precise figure for the penalties in the absence of the agreement of the parties. Rather, the question is whether the penalty agreed by the parties is within the permissible range of penalties for such contraventions; see Mobil Oil at [51] and [54]. The factors relevant to the determination of an appropriate penalty for a contravention of the Act have been examined by this Court. By way of example, in Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 at [40] Tracey J referred to the relevant and applicable considerations. These include:·the nature and extent of the conduct which led to the breaches; ·the circumstances in which that relevant conduct took place; ·the nature and extent of any loss or damage sustained as a result of the breaches; ·whether there had been similar previous conduct by the respondent; ·whether the breaches were properly distinct or arose out of the one course of conduct; ·the size of the business enterprise involved; ·whether or not the breaches were deliberate; ·whether senior management was involved in the breaches; ·whether the party committing the breach had exhibited contrition; ·whether the party committing the breach had taken corrective action; ·whether the party committing the breach had cooperated with the enforcement authorities; ·the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and·the need for specific and general deterrence. This list is of course not exhaustive, and as Buchanan J noted in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at 580, the overall concern is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred. THE NATURE, CIRCUMSTANCES AND PERIOD OF THE CONTRAVENING CONDUCT