Hadgkiss v Aldin

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FEDERAL COURT OF AUSTRALIA

Hadgkiss v Aldin [2007] FCA 2068

INDUSTRIAL LAW – breaches of s 38 Building and Construction Industry Improvement Act 2005 (Cth) by unlawful industrial action – breaches of order made under s 127 (pre-reform) Workplace Relations Act 1996 (Cth) by unlawful industrial action – whether penalties should be suspended in whole or in part and for how long – whether declarations should be made explaining basis of imposition of penalties – principles of cumulation, concurrence and totality in fixing penalties – whether declarations should be made by reference to admitted facts.

Building and Construction Industry Improvement Act 2005 (Cth), ss 3, 5, 36, 37, 38 and 49
Crimes Act 1914 (Cth), s 4C
Workplace Relations Act 1996 (Cth), ss 127, 178, 187AA, 187AB, 298K, 643(1)
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Workplace Regulations 2006 (Cth), reg 2.19  

ACCC v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 applied
Australian Competition and Consumer Commission (ACCC) v IPM Operations Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11 referred to

BHP Steel (AIS) Pty Ltd v CFMEU [2000] FCA 1908 referred to

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No.2) (1999) 94 IR 231 applied
Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 cited
Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 referred to
Metropolitan Fire and Emergency Services Board v United Firefighters’ Union of Australia (2005) 148 IR 242 applied
Mill v R (1988) 166 CLR 59 cited
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 referred to
Pearce v R (1998) 156 ALR 684 applied

Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 discussed

Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 applied
The Community and Public Sector Union (CPSU) v Telstra Corporation Ltd (2001) 108 IR 228 cited
Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 applied

Trade Practices Commission v Pye Industries Sales Pty Ltd (1978) ATPR ¶40-089 cited

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 applied

NIGEL HADGKISS v GORDON WILLIAM ALDIN
WAD 185 OF 2006

GILMOUR J
20 DECEMBER 2007
PERTH



IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 185 OF 2006

BETWEEN:

NIGEL HADGKISS
Applicant

AND:

GORDON WILLIAM ALDIN
First Respondent

ROBERT PETER ALIVOJVODIC
Second Respondent

BRUCE JAMES ALLSOPP
Third Respondent

STEPHEN BANKS
Fourth Respondent

RICHARD JOHN BECK
Fifth Respondent

NATHAN RYAN BENNETT
Sixth Respondent

ROBERT BIONDILLO
Seventh Respondent

ROBERT NEIL BRADBURY
Eighth Respondent

JOHN FRANCIS BRADLEY
Ninth Respondent

JAMIE BREARLEY
Tenth Respondent

TIM HUGH BROWN
Eleventh Respondent

GREG JAMES BROWN
Twelfth Respondent

MATHEW BRUCE
Thirteenth Respondent

MICHAEL BURKE
Fourteenth Respondent

JOHN JOSEPH BYRNE
Fifteenth Respondent

DAVID BARRIE CAMERON
Sixteenth Respondent

TERRY ALLAN COLLINS
Seventeenth Respondent

MARTIN RASHLEIGH CORBETT
Nineteenth Respondent

GRAEME COWLING
Twentieth Respondent

ROBERT JOHN COYLE
Twenty First Respondent

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Details
Case
[2007] FCA 2068
Decision Date

CaseChat Overview and Summary

The case of Hadgkiss v Aldin involves a dispute regarding the reinstatement of Mr Peter Ballard, whose dismissal was perceived by the respondents to be unfair or unlawful. The applicant, an inspector under the WR Act, sought to recover a penalty imposed under the Act for the contraventions. The respondents argued that the primary consideration in imposing penalties should be deterrence, both specific and general. The court was required to determine the appropriate penalty for the contraventions and consider various factors, including the nature and extent of the unlawful industrial action, the circumstances in which the conduct took place, and the consequences of the conduct.

In assessing the penalty, the court considered the relevant principles identified in previous cases, such as the judgments of French J in Trade Practices Commission v CSR Ltd and Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd. The court also considered additional factors suggested by Ryan J in Metropolitan Fire and Emergency Services Board v United Firefighters’ Union of Australia, such as the absence of any basis for misapprehension about what the order commanded and the need to deter participants in industrial relations from disregarding orders of the AIRC.

After considering the evidence and arguments presented, the court found that the primary consideration in imposing penalties should be deterrence. The court accepted that general deterrence is more important than specific deterrence in this case. The court determined that the maximum penalty that may be imposed for the breach of a s 127 Order is 60 penalty units, or $6,600.

The court ultimately imposed a penalty on the respondents for their contraventions of the WR Act and the BCII Act. The penalty was determined to be sufficient to deter repetition by the contravener and by others who might be tempted to engage in similar contravening conduct. The court's decision highlights the importance of deterrence in imposing penalties for industrial relations matters and the need to give effect to the statutory purposes underpinning the relevant Acts.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant, being an “inspector” within the meaning of that term in the WR Act, has standing pursuant to s 178(5)(a) to sue for and recover a penalty imposed under s 178(1). BACKGROUND TO THE CONTRAVENTION Peter Ballard It is an agreed fact that the respondents’ objective in the contravening conduct was to achieve the reinstatement of Mr Peter Ballard, whose dismissal they perceived to be unfair or unlawful. The circumstances of Ballard’s appointment and later dismissal were set out in the affidavit of Mr Douglas Bevan affirmed 17 October 2007. Bevan is the Employee Relations Manager for Leighton Contractors Pty Ltd throughout Western Australia including, at all material times, the construction of the Project. The respondents accept the facts deposed to by Bevan. Ballard had been appointed as a Shop Steward following negotiations for the Certified Agreement at the CFMEU’s offices in East Perth on 12 May 2004. Between then and 24 May 2004, when Ballard was appointed, there were discussions involving Leighton Contractors representatives and Ballard, during which he was informed as to how the dispute resolution procedure would work and the procedure that he would have to follow if there was any dispute on site. Ballard had given assurances to Bevan that he would follow the dispute resolution procedure. It was as a result of those assurances that LKJV agreed to employ Ballard. His appointment was in accordance with clause 7.2 of the Certified Agreement which provided for an employee to be elected to the position of job representative. On 29 June 2004, LKJV received a letter from Mr Kevin Reynolds, the State Secretary of the CFMEU, advising that at a meeting of its members that Ballard had been elected as Shop Steward to represent members of the CFMEU employed on the Project. On 14 February 2006, Ballard had told the workforce to stop work due to hot weather and on 15 February Ballard told the workforce to stop work due to wet weather. On both occasions he had failed to go through the inclement weather process set out in a Certified Agreement. Mr Robert John Wallwork, the Project Director told Ballard that he had until 10.00 am on Monday 20 February 2006 to sign an undertaking confirming that he would adhere to the terms of the Certified Agreement and that if he did not sign the undertaking, his employment with LKJV might be terminated. Reynolds offered to give the undertaking in his capacity as Secretary of the CFMEU but Wallwork told him that as Ballard was an employee of LKJV, Ballard himself would be required to give the undertaking. Reynolds said he would take legal advice as to whether Ballard should sign such an undertaking. On 22 February 2006, Wallwork and Bevan met with Ballard at his office at the Esplanade site compound. Wallwork asked Ballard whether he was going to sign the undertaking. He told them that if he did not, his employment would be terminated in writing by the LKJV. Ballard replied in words to the effect “you will do what you have to” and “as one door closes another opens”. Later that day, there was a further meeting during which Ballard asked Wallwork, in effect, where his termination letter was. Wallwork again asked him if he would give the undertaking which had been requested.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GILMOUR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GILMOUR J

The maximum penalty that may be imposed for the breach of a s 127 Order is 60 penalty units, or $6,600. That follows from s 178(4)(a)(ii) of the WR Act, this being an “other case” not covered by the preceding provisions of s 178(4).RELEVANT CONSIDERATIONS IN THE ASSESSMENT OF PENALTY The leading cases concerning the factors that are relevant to the assessment of civil penalties are the judgments of French J in Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 and Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231. The principles identified in those cases have been applied to determining penalties under the BCII Act. Relevant considerations to the Court’s assessment of penalties in this case include:(a)the nature and extent of the unlawful industrial action;(b)the circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act);(c)the likely deterrent effect (both specific and general) of any civil penalty imposed;(d)the consequences of the conduct found to be in contravention of the BCII Act and the WR Act, including the amount of any loss or damage caused, as well as less tangible effects on the building and construction industry and the public generally;(e)the period over which the contraventions extended;(f)the extent of co-operation with regulatory authorities and any acknowledgement of wrongdoing;(g)the need to give effect to the statutory purposes underpinning the BCII Act and the relevant part of the WR Act; and(h)the respondents’ past record of statutory contraventions and other conduct in industrial relations. In addition, Ryan J’s judgment in Metropolitan Fire and Emergency Services Board v United Firefighters’ Union of Australia (2005) 148 IR 242 (“United Firefighters”), suggests that, in the context of the imposition of penalties in respect of a contravention of an order of the AIRC under s 127 of the WR Act, the following additional factors are relevant:(a)an absence of any basis for misapprehension about what the Order commanded;(b)whether a party in breach has previously contravened an order under s127; and(c)the need to deter participants in industrial relations administered under the WR Act from flouting or disregarding orders of the AIRC, “especially where those orders have been made after a full hearing of both sides and have been tailored to meet the exigencies of a particular industrial dispute”.Deterrence The respondents submitted that, in this case, the primary consideration is deterrence and in that regard general deterrence is more important than specific deterrence. The applicants’ submissions were to the same effect. I accept this submission. This is not to say that specific deterrence is not of importance. This approach is consistent with the main object of the Act to which I have referred. In Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 “(Mobil Oil”) the Full Federal Court acknowledged that deterrence is “one of the principal justifications, if not the only justification for imposing civil penalties” at [53]. In Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317, which involved industrial action on the very project that is in issue in this case, Le Miere J, said putting it in a more limited way [74]:“The penalties should be sufficiently high to deter repetition by the contravener and by others who might be tempted to engage in contravening conduct. Deterrence is a primary objective of penalties.”