JENKINSON v Carter - [2010] FMCA 462

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JENKINSON v CARTER & ANOR

[2010] FMCA 462

INDUSTRIAL LAW – Entry onto premises – notice of entry to be delivered a whole 24 hours previous – physical violence against the Chief Operating Officer – calculation of penalty where violence involved.

Bankruptcy Act 1966 (Cth)
Building and Construction Industry Improvement Act 2004 (Cth)
Fair Work (Registered Organisations) Act 2002 (Cth)
Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (Cth)
Workplace Health and Safety Act1995 (Qld)
Workplace Relations Act 1996 (Cth)

Daniels v Patti & Anor [2001] AIRC 77
John Holland Proprietary Limited v The Construction, Forestry, Mining and Energy Union (No. 2) [2009] FCA 865
Kelly v Fitzpatrick (2007) 166 IR 14
Wilson v Nesbitt [2009] FCA 1574

Applicant:

WAYNE JENKINSON

First Respondent:

WAYNE CARTER

Second Respondent:

CONSTRUCTION FORESTRY MINING AND ENERGY UNION

File Number:

BRG 13 of 2010

Judgment of:

Burnett FM

Hearing date:

8 June 2010

Date of Last Submission:

8 June 2010

Delivered at:

Brisbane

Delivered on:

8 June 2010

REPRESENTATION

Counsel for the Applicant:

Mr A. Horneman-Wren S.C.

Solicitors for the Applicant:

Norton Rose Australia

Counsel for the Respondents:

Mr T. Carmody S.C.

Solicitors for the Respondents:

Quinlan Miller & Treston Lawyers

ORDERS

A declaration that the first respondent has acted in contravention of section 7671 of the Workplace Relations Act;
A declaration that the first respondent has acted in contravention of section 7681 of the Workplace Relations Act;
Impose on the first respondent a penalty of $5500 in respect of the contravention of section 7671 of the Workplace Relations Act pursuant to section 769 and a penalty of $3300 in respect of the contravention of section 7681 of the Workplace Relations Act pursuant to the provisions of section 769.
That the penalties be paid to Commonwealth Australia.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 13 of 2010

WAYNE JENKINSON

Applicant

And

WAYNE CARTER

First Respondent

CONSTRUCTION FORESTRY MINING AND ENERGY UNION

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

At or about 2.50 pm on 10 December 2008, the first respondent, Wayne Carter, who was then an employee of the Construction, Forestry, Mining and Energy Union; and the second respondent, an officer of that entity, gave an entry notice by facsimile to Procast, which was a company trading as or carrying on business as Procast Australia Proprietary Limited, and carrying on business as a manufacturer of precast concrete panels and prestressed elements from premises at Johnson Road, Heathwood, Queensland. The notice forwarded by the first respondent, Carter, to Procast was a form of entry notice and purported to be in conformity with the requirements of section 378 of the Workplace Relations Act.
The notice stated that the first respondent would seek entry to the premises of Procast on 11 December 2008 and that the organisation in respect of which the permit was issued was the second respondent, that is the CFMEU. The purpose for Carter seeking entry to the premises was for the holding of discussions with eligible employees, pursuant to section 760 of the Workplace Relations Act. The notice identified that he was required to give entry notice at least 24 hours before the entry. On 11 December 2008, sometime shortly before 9.35, that is inside 24 hours after the section 738 notice was delivered, Carter entered the premises of Procast. The entry was in purported exercise of his powers under section 760, that is, to engage with discussion with eligible employees.
By operation of section 763 of the Workplace Relations Act the entry was not authorised: by Division 6 of Part 15 of the Act. Accordingly at the time of entering the premises, Carter did not have any right to enter the premises. At about 9.35 on 11 December, Theresa Moltoni, the industrial relations director, and David Ash, the chief operating officer for Procast met with Carter within the premises at or near the crib room for the companies’ employees.
Ash introduced himself to Carter, and Carter in turn identified himself to Ash as "Junior". Carter did not show Ash or Moltoni his right of entry permit, and a short conversation then took place. Carter said, "I'm from the BLF, and I want to talk to you and your staff." Ash replied, "We have received the right of entry notice, and have indicated to the BLF that you have no right of entry to the premises." Ash then requested that Carter leave the premises. In response to that request, Carter said words to the effect of, "I'm not fucking leaving." Ash then again requested that the respondent Carter leave the premises. After the second request, there was conversation then to the following effect. Carter said, "You don't know the fucking law, arsehole." To which Ash responded, "Well, you might be surprised, but we really need you to leave and leave now."
During the course of these events, there were approximately 20 employees of Procast gathered in the vicinity of the crib room, and by reason of what follows, one assumes they witnessed these events.
Ash had at that time instructed the workers to return to work. Carter followed with words to this effect, "They are not going back to work, they want to talk." At that point, Ash again requested that Carter leave the premises. Following that request, this conversation then occurred, Carter stated, "Well, I’m here on safety grounds." Ash replied, "Well, look, if you're here for safety reasons, well, then, that's fine, but I must really ask you to come into the office, sign in, sit down, and discuss with me what your immediate safety concern is so that we can address it." Carter responded, "I'm not going anywhere, we're going to talk in front of the blokes."
Carter then spoke to the assembled workers saying words to the effect of, "What is he trying to hide if he can't talk in front of you all?" A conversation then ensured between Ms Moltoni and Carter to this effect; Moltoni stated, "What are the details of your safety concern?" Carter responded, "The toilets are unhygienic." Carter then indicated he was returning to his vehicle to retrieve some forms so that he could "write up his safety concerns". As he then left to move to his vehicle, Carter moved past Ash, and as he did so, he dropped his shoulder into Ash's body, pushing Ash back against the safety barrier.
Following that, Carter then proceeded towards his vehicle followed by Ash, and a conversation to the following effect took place; Ash said, "You should put on some PPE," that is, personal protective equipment. Carter responded, "Where's your fucking PPE?" While continuing to walk toward the vehicle, Ash then said, "You need to leave the premises." The exchange was then repeated with Ash saying again, "Look, I really must ask you to leave the site." Carter responded, "And what are you going to do to make me?" Ash said, "Well, what do I have to do to get you to leave the site?" Carter is said to have responded, "Oh, right." He then struck Ash with his shoulder, the impact of which caused Ash to spin about 180 degrees and knock him to the ground and cause his hard hat to be dislodged. It appears that Carter then left the site.
Following these events, which are admitted by the first respondent, a complaint was made to the applicant. The applicant is an Australian Building and Construction inspector appointed pursuant to section 57 of the Building and Construction Industry Improvement Act (BIPCA) and he is a person authorised to make applications under section 769(1) of the Workplace Relations Act, preserved by operation of item 11, schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act (2009) for penalties of the nature sought. Following his initial investigations, he found – and again it is admitted – that the first respondent Carter was an employee of the CFMEU and an officer of that union.[1] He was also the holder of a permit within the meaning provided to that term by section 737 of the Act, being the holder of a permit issued under section 740 of the Act. He was also an authorised representative appointed under section 90D of the Workplace Health and Safety Act (1995) Queensland. Further, the second respondent was, at all material times, an organisation of employees registered under schedule 1 of the Workplace Relations Act, an organisation registered under Fair Work (Registered Organisations) Act (2002), and was capable of suing and being sued in that capacity. He further found, and it is admitted, that Procast Australia Proprietary Limited carried on business as a manufacturer of precast concrete panels from premises at Johnson Road, Heathwood, and that at all material times, Procast used labour at premises which labour was supplied by Workpac Pty Ltd.
[1] There is no explanation as to why Carter announced himself as being from the BLF despite the admission he was an employee and officer of the CFMEU.
The applicant concluded that offences had been committed under section 767(1) and 768 of the Act, and he made this his application. Initially, the applicant made application seeking orders against both Carter and the second respondent, the CFMEU for declarations of contravention of section 767(1) and 768(1) by each of the first and second respondents, and for the imposition of penalties in respect of those breaches.
At the hearing of the application, the court was informed that the applicant no longer seeks declarations and orders against the second respondent. The court was advised last week that the first respondent would not contest the substantive allegations, and that the matter would proceed today by way of penalty hearing only.
Section 767(1) and 768 are each civil remedy provisions of the Workplace Relations Act, which relevantly provides that:
“The court, on application by an eligible person, may make one or more of the following orders in relation to a person (the defendant) who has contravened a civil remedy provision of this Part:
(a) an order imposing a pecuniary penalty on the defendant;
(b) an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention; and/or
(c) any other order that the court considers appropriate.”
Section 769(4) defines an eligible person to include a workplace inspector. Under section 73(1) of the BIPCA, an Australian building and construction inspector is taken to be authorised to make the same applications to a court as a workplace inspector is authorised to make where proceedings relate to a matter that involves a building industry participant or building work. Building work is appropriately defined in the BCIPA to include the prefabrication of made to order components to form part of any building structure or works, whether carried out on site or off site. It is not challenged that the proceeding relates to events which occurred on a site where Procast carried on business as a manufacturer of precast concrete panels and pre-stressed elements.
Accordingly, the proceeding relates to a matter that involves a building work, and the applicant, as the Australian building and construction inspector, is authorised to bring the application brought as under section 769. The maximum penalty for an individual for breach of either section 767(1) or 768(1) is 60 penalty units. At the relevant time, a penalty unit equalled $110, and accordingly the maximum penalty for each contravention in this case is $6600. For the contravention alleged under section 767(1), the applicant seeks a penalty in the range of 5000 to $6000, and for the 768(1), a penalty in the range of or approximating $3000. The respondent contends for a penalty of no greater than $4400 and $1750, respectively, although senior counsel for the respondent, Mr Carmody, in his submissions in respect of penalty for the contravention under section 767(1) conceded that a sum of up to $5000, that is, about 75 per cent of the maximum penalty available, would be in the acceptable range, having regard to the facts of this case.
Before proceeding to address the facts in this case, the guiding principles for the imposition of penalty ought be stated. Before doing so it is also appropriate to make one further observation, and that is that it is contended on behalf of the applicant that only one course of conduct is contended for in respect of each of the contraventions against section 767(1) and 768(1).
The principles to be applied were generally outlined by his Honour Greenwood J in John Holland Proprietary Limited v The Construction, Forestry, Mining and Energy Union (No. 2) [2009] FCA 865, commencing at paragraph 17, where his Honour stated:
“Whilst the discretion is at large and informed by the particular circumstances of a contravention, the discretion should be exercised broadly according to settled principle which nevertheless recognises the important flexibility necessary to adapt the exercise of the discretion to particular conduct, the contextual circumstances of that conduct and any other matter relevant to the exercise of the discretion. Judges of this Court have sought to isolate principles or criteria informing the exercise of the discretion to impose a pecuniary penalty and the quantum of the penalty. The observations of Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231 at [8] are well known and have been applied regularly in this court.”
At paragraph 18, his Honour continued:
“Branson J, in formulating observations at [8] in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No. 2), recognised that the list of factors her Honour took into account was not intended to comprise an exhaustive list. Tracey J in Kelly v Fitzpatrick and Stewart-Maloney v Construction, Forestry, Mining and Energy Union formulated a potentially relevant checklist of considerations. These considerations are useful but the overriding principle is that identified by Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [91] in these terms:
“Checklists of this kind can be useful providing they do not become transformed in to a rigid catalogue of matters for attention. At the end of the day the task of the court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations.””
At paragraph 19, his Honour continued:

“The considerations that seem to me to be important in the exercise of the discretion to determine whether and if so in what amount a pecuniary penalty ought to be imposed upon any of the present respondents, are these:
(1.     )    The structure of the statutory regime including the nature of the civil penalty provisions and the statutory context and purpose of the legislation.
(2.)    The elements of the contravening conduct.
(3.)    The circumstances in which the conduct took place.
(4.) Whether the contraventions form part of one course of conduct.
(5.)    The place where the conduct occurred, and the nature of the facility that the officials sought to enter.
(6.)    The “counter-factual”, that is, the steps that might reasonably have been adopted by the Unions rather than entry to the premises… and whether those steps would have avoided the contravening conduct or would have been likely to avoid the contravening conduct.
(7.)    The position and experience of the individual officials involved in the contravention.
(8.)    The consequences of the conduct.
(9.)    The need for either general or specific deterrence.
(10.) Whether a respondent has previously engaged in a contravention of these civil penalty provisions… of these proceedings.
(11.) Whether a respondent has previously engaged in a contravention of a provision of the Act which reflects either the statutory purpose of the provisions in issue or other provisions of the Act which reflect the essential character of the provisions contravened. …”

Then at 20, his Honour stated:

“In addition, the Court will have regard to the totality principle in determining the quantum of any penalty.”

Considering, then, each of those matters. Firstly the structure of the statutory regime, including the nature of the civil penalty provisions and the statutory context and purpose to the legislation.
As earlier noted, Carter was an employee and officer of the CFMEU at the material time, and a permit holder within the meaning given to that term by section 737 of the Act, being the holder of a permit issued pursuant to section 740. Permit holders have certain rights and responsibilities which are set out at length in Part 15 of the Act. Section 736 of the Act provides that, in addition to the general objects of the Act, Part 15, which relates expressly to the right of entry. Part 15 also has objects which include, particularly (a):
“Establishing the framework that balances the rights of organisations to represent their members in the workplace, hold discussions with potential members, and investigate suspected breaches with the right of occupiers and employers to conduct their business or their businesses without undue interference or harassment.”
And (b):
“To ensure that permits to enter are held only by persons who understand their rights and obligations under part 15, and who are fit and proper persons to exercise those rights.”
One of the stated purposes of the Work Choices amendments stated in the Workplace Relations Amendment (Work Choices) Bill 2005 Explanatory Memorandum at page 27 in respect of the right of entry included that quote:
“Instances of systematic abuse of right of entry laws will be limited. The AIRC will be given the ability to make orders if it is satisfied that a union or one of its officials has engaged in improper conduct –“
Before entry permits are issued the registrar is required to have regard to many matters, including whether the individual has received appropriate training about the rights and responsibilities of being a permit holder and whether a prospective permit holder is a fit and proper person to hold a permit. The nature of the powers given to permit holders under Part XV of the Act is significant. Permit holders in that capacity are exercising a public right and duty and due diligence and avoidance of obstruction is to be expected. The privilege of those permits imposes heavy responsibilities in return.
The submission was made that the conclusion ought to be drawn, is that it was the legislature’s intention that a permit holder should uphold a certain standard of proprietary. I accept that submission. This is certainly a matter considered when Greenwood J considered penalty in a similar factual context in the decision of John Holland v CFMEU (No 2.). There in that context his Honour stated at paragraph 30:
“These provisions recognize that although a right of entry to premises is conferred upon a permit holder by Part 15, according to the terms of that part, the permit holder must be astute to his or her rights and responsibilities when exercising a right of entry to premises and when on premises.”
It was contended on behalf of the applicant that Carter did not exercise his entitlements with care or uphold a standard of proprietary. First, in contravening section 767(1) Carter’s conduct included assaulting a representative of Procast twice. That, it is submitted, constituted a total lack of proprietary on Carter’s behalf. Secondly, it was contended that in contravening section 768(1) Carter’s conduct included exercising an unauthorised right of entry and repeatedly asserting that his entry was authorised in circumstances where a representative of Procast repeatedly informed him that his entry was unauthorised, that is, not only on 11 December 2008 but also through the CFMEU on 10 December 2008.

The conduct constituted a total disregard for due diligence in exercising his entitlements. It was contended that Carter could not have been in doubt that his entry was not authorised at the time at which he sought to exercise his right of entry to the premises, particularly given that he had issued the entry notice at 2.50 pm on 10 December and it is accepted, as is pleaded in the statement of claim, that he had faxed it at that time. In the notice he recited his obligation to give 24 hours notice of entry. Thus, it follows, it is submitted, he could not have been in any doubt that at about 9.35 on 11 December 24 hours notice had not expired and that on that basis his entry was therefore unauthorised. The facts underlying that submission are not in contest and I accept the submission necessarily follows from an admission of those facts.
It is submitted on behalf of the applicant that in respect of those factors the penalty should particularly reflect the flagrant disregard of care and proprietary. In that regard the applicant referred me to the observations of Munro J in Daniels v Patti & Anor[2] where his Honour stated:
“…Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility and avoidance of unnecessary obstruction in the exercise of powers under Division 11A are not only to be expected, they are a statutory condition of the powers being retained. It is yet to be seen what may be said to justify a union representative indulging in alleged conduct that may leave him open to the accusation that he acted like a union goon, or set up a fracas and commotion by barking like a dog, or whatever. But whatever may be said, very little justification for such conduct could be expected to apply to an agent exercising a public power and duty under the Act. The proposition needs only to be put for one point to be relatively obvious. If Ms Daniels, who has similar powers, an officer of the Australian Taxation Office, or the like official so conducted themselves in the exercise of their respective inspectorate and investigative powers, there would be little expectation of justification being made out.”
[2] [2001] AIRC 77
Further, in support of that approach, the applicant observed his Honour proceeded to note:
“While some tolerances must be expected for occasional clashes of temperament and style a permit holder is obliged to conduct himself or herself with proprietary when exercising the right of entry power under the Act.” [3]
[3] See the unreported transcript of the decision at paragraphs 34, 35 and 67.
Next are the circumstances in which the conduct took place and the nature and extent of the conduct. The applicant contends that matters to which the court should have particular regard relevant to the determination of penalty include the nature of the circumstances of the particular contraventions. At the outset I outlined those matters. It is contended that the conduct by Carter was extreme and completely unacceptable. I accept that submission. In contravening section 767(1) Carter’s conduct included assaulting a representative of Procast twice and it also included encouraging employees not to return to work as required by their employment contracts and as instructed by the representative of Procast. In contravening section 768(1) Carter’s conduct included exercising an unauthorised right of entry and repeatedly asserting that entry was authorised in circumstances where Procast’s representative repeatedly informed him that his entry was unauthorised, repeatedly requested him to leave and in circumstances where Carter knew or ought to have known that 24 hours had not elapsed since he issued the notice.
In response the respondent particularly relies upon this consideration in his submissions. He submits that the range of penalty proposed by the applicant as appropriate leaves little scope for latitude in more egregious instances, for instance, an occasion that invokes bloodshed. I note that observation and accept the submission that to some extent it is necessary to make some allowance for the relativity of this conduct. He correctly notes it is necessary to allow some latitude for potentially more egregious contraventions that may arise. In general terms the applicant referred me to a number of cases which involved instances of a similar kind and while the observations in those cases has been instructive and useful, I accept them as providing guidance only.
The applicant on this point, however, submits that in respect of the first contravention the conduct which constitutes the contravention should be classified as being toward the higher end of the scale on the basis that it approaches the worst possible case. While I certainly accept that it is at the higher end, a penalty of the top end of the range submitted by the applicant does not leave much scope for what can conceivably be more egregious instances than that which occurred here without to any extent intending to diminish what I regard as the serious conduct in this instance.
So far as the second contravention is concerned again having regard to the factors in this case, the applicant contends the penalty range should be in the midrange, which submission I think is entirely reasonable.
Next is the one course of conduct submission. It is not contended by the applicant and not opposed by the respondent that the contraventions have essentially arisen out of one course of conduct. Accordingly, although there are notionally multiple contraventions of each of section 767(1) and 768(1), the penalties should be approached upon the basis that they arise from that one course of the conduct.
Next is the counterfactual issue. As I have earlier noted by reference to John Holland v Construction, Forestry, Mining and Energy Union (No. 2), in considering a penalty for a contravention of section 768 Greenwood J put weight on the fact that rather than exercise a contended right of entry a union official might have avoided the events by determining, through discussions with Procast, whether in all the circumstances section 760 of the Act conferred a right of entry to him. Likewise in this case Carter could have avoided these events which led to the contraventions if he had acceded to Mr Ash’s and Ms Moltoni’s requests to discuss issues with them in a civilised manner, instead of belligerently refusing such requests and proceeding to assert that which he ought to have known was an incorrect position. Clearly, if he had taken those steps, it is likely that the contravening conduct would not have followed.
Next are the consequences of the conduct. Carter’s conduct had significant consequences, particularly for the chief operating officer, Mr Ash, whom he assaulted twice. Perhaps most significantly was the second assault where Mr Ash was thrown to the ground by the force of Carter’s push. That assault caused Mr Ash some injuries to his wrist. Other factors relevant to that assault are that this occurred in a very public situation in the presence of the employees of the company. In an industrial context it does not favourably bespeak of a civilised approach to the resolution of workplace conflict in circumstances where union officials behave in an offensive and heavy-handed manner toward management in the presence of employees.
Next is the matter of deterrence. There is a need for both specific and general deterrence. The penalties imposed on Carter must be sufficient to deter others from engaging in similar conduct and I think that is an appropriate submission in this case. The conduct by Carter was extreme and, in my view, completely unacceptable. Courts have previously stressed the need for such behaviour by union organisers to be deterred and I accept those observations as guiding in this instance. I note, for instance, the observations made by Dowsett J in Wilson v Nesbitt[4] where his Honour made such statements. That is consistent with my findings here. The conduct was quite extreme and completely unacceptable. The court must demonstrate its disapproval of that conduct by fixing a penalty which will operate as a deterrent to others. I accept the applicant’s submission that it is important to deter permit holders from engaging in assault and flagrant misuse of their entitlements, particularly considering the high standard expected of permit-holders consistent with the objects of the Act as I have earlier noted.
[4] [2009] FCA 1574.
Next is the matter of contrition. It was submitted, on behalf of the respondent that the fact of the plea in this instance is consistent with contrition. The applicant says that in this instance there is no contrition and no allowance should be made for it. He pointed, for instance, on behalf of the applicant, to the observations in Mornington Inn (supra) where an employer admitted liability for a breach of sections 400 subsection (5) and 792 of the Act where the parties in that instance put an abridged statement of facts to the court for the purpose of penalty, with the judge in that instance having been notified about two weeks before the trial, but well after the respondent had seen the applicant’s evidence, of the change in attitude.
In that instance the court quantified the discount for a penalty plea of 10 per cent. The matter went on appeal and on appeal the Full Court noted that it would have been open to the primary judge, at least in its view, to refuse any discount for the admission of liability. It was further noted that the court contended that a discount – that is, for an early plea of guilty in civil penalty proceedings – should not be available simply because the respondent has spared the community the cost of a contested trial. Rather the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability has indicated an acceptance of wrongdoing, and a suitable and credible expression of regret and/or (b), has indicated a willingness to facilitate the course of justice.
The applicant contended that in this case, as in the Mornington Inn case, Carter’s conduct does not indicate an acceptance of wrongdoing or regret and a willingness to facilitate the course of justice. It was noted that Carter only changed his position two days before the trial well after he had seen the applicant’s evidence, and it followed that only modest allowance ought be made for the first respondent’s admission. He otherwise contends, as earlier noted, that there should be no allowance made for contrition as there is no evidence of contrition or remorse. As I have noted, Mr Carmody, for the respondent, says that the plea itself is evidence of contrition.
He acknowledged the fact that there had been a late change of plea and that there should be small discount allowed, particularly because of the sparing of trial expense, and, of course, the tribulation of trial for all those involved. However, I accept that there was no evidence of contrition. For instance, there is no evidence of a formal apology having been made by Carter to Mr Ash, in particular, given that he was the subject of this assault. But notwithstanding those matters I am inclined to allow, at least, some small component, no greater than five per cent – if it must be quantified – for the purpose of the respondent’s conduct in the conduct of the trial to date.
Next, whether the party committing the breach had taken corrective action. It is contended, on behalf of the applicant, as I have already noted, that there has been no corrective action. There has been no apology and that much, I think, is beyond dispute.
Finally, there is no evidence before the court concerning a financial incapacity on the part of the respondent, Carter, to pay any penalty in a range advanced by either the applicant or the respondent and from that failure I infer he is able to pay penalties in the range that are contended for.
It follows that in summary these two contraventions arise in circumstances occasioning serious concern. The section 767(1) contravention arises in circumstances warranting a penalty at the higher end of the penalty spectrum. Carter had no power to enter the site. He had not given 24 hours notice. He knew or ought to have known of that matter because he was the person who gave the entry notice. In purporting to exercise his rights he initially acted in a bullying and intimidatory manner. He was unreasonably and excessively belligerent and offensive by his initial conduct and use of language, even allowing for the robust discourse that often passes as appropriate in such an environment. There was simply no justification for this egregious behaviour. Nor were his comments limited to exchanges between he, and the chief operating officer and the industrial relations officer.
This exchange occurred in the presence of the employees, and, on one occasion, was directed to the employees and was unnecessarily confrontational. To add to this conduct, he proceeded to assault the chief operating officer by shoving him on two occasions, once with such force that he caused the chief operating officer to fall to the ground with such force that he dislodged the chief operating officer’s hardhat. His conduct, in my view, was disgraceful and casts in a poor light the efforts of other trade union officials who worked assiduously to adopt a professional conciliatory but forceful approach to the advocacy of their members’ rights. Unchecked, this behaviour could lead both sides of the workplace voting table into a belief that the old days of industrial bullying and intimidation are back and remain alive and well. Nothing could be further from the truth and the penalty needs to reinforce that position. There is no place in the workplace for this style of conduct.
Having regard to the matters I have earlier addressed, I regard this breach of s.767(1) a serious contravention and worthy of a penalty of the higher end of the range. I have allowed a small discount for the plea but overall I consider it a penalty of 50 penalty units, or $5500, to be appropriate in this instance. Concerning the section 768(1) contravention, I accept this is an offence which warrants a penalty in the mid-range. It was, as I have earlier noted, aggravated by the initiating factors associated with the first contravention. The respondent knew, or ought to have appreciated, he had no right of entry. He could readily have taken positive action and avoided the difficulties if he had heeded the complaints made by the employer. He did not.
All up again, having regard to the matters that I have earlier identified, I am of a view that a penalty in the order of 30 penalty units is appropriate, that is $3300. In total, that brings both penalties to $8800. In considering the overall penalty, one must then have regard to the totality of the penalties as discussed by Tracey J in Kelly v Fitzpatrick[5], in particular, at paragraph 30. His Honour stated:
“Another factor which must be taken into account in fixing of pecuniary penalties for multiple breaches of statutory stipulations is the totality principle. This principle is designed to ensure that the aggregate of the penalties imposed is not such as to be oppressive or crushing. Different views have been expressed as to the manner in which the principle ought properly to be applied. On one view the starting point should be the determination of an appropriate total penalty. That figure would then be divided by the number of breaches to produce a penalty for beach breach. The orthodox position, however, which I consider should be adopted, is that the starting point is the determination of appropriate penalties for each contravention of the statutory norm. The aggregate figure is then considered with a view to ensuring that it is an appropriate response to the conduct which led to the breaches. This approach was recently described, in the criminal context from which the totality principle is derived, as “the orthodox, but not necessarily immutable, practice” adopted by sentencing courts.”
[5] (2007) 166 IR 14
Having regard to the approach which has been articulated by Tracey J in Kelly v Fitzpatrick, I am satisfied that the penalty in totality is not, in this instance, of such a quantum as to be oppressive or crushing and that in total it affords an appropriate penalty, having regard to the facts of the case.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date: 6 July 2010