FEDERAL COURT OF AUSTRALIA
Parker v Australian Building and Construction Commissioner [2019] FCAFC 56
Appeal from: Australian Building and Construction Commissioner v Parker [2017] FCA 564; 266 IR 340
Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082; 270 IR 165
File number: NSD 2227 of 2017 Judges: BESANKO, REEVES AND BROMWICH JJ Date of judgment: 5 April 2019 Catchwords: INDUSTRIAL LAW – appeal and cross-appeal from liability and penalty judgment of the Federal Court of Australia – where primary judge imposed civil penalties on individuals for breaches of ss 50, 348, 355 and 417 of the Fair Work Act 2009 (Cth) – where legal liability for contraventions of individuals attributed to both the Construction, Forestry, Mining and Energy Union (CFMEU) and CFMEU NSW – whether primary judge had sufficient evidence to establish causal link between site meeting and non-attendance of workers to establish breach of s 417 – whether primary judge impermissibly relied upon conduct of appellants on second day to find industrial action on first day – whether primary judge failed to make findings necessary to conclude there was a breach of s 417 – whether insufficient evidence to find intention to coerce in breach of s 348 and s 355 – whether no obligation for appellants to engage in dispute resolution procedure and primary judge therefore erred in finding contravention of s 50 – held: appeal on liability grounds dismissed
PRACTICE AND PROCEDURE – whether primary judge erred in striking out pleadings on accessorial liability for contravention of s 50 by reason of insufficient clarity – whether failure to address and determine claim that individual appellants had accessorial liability for CFMEU s 50 contravention arising from conduct of those individuals – whether primary judge failed to apply presumption in s 361 when dismissing s 348 claims against individuals – held: cross-appeal upheld in part – primary judge entitled to find pleaded allegation fell short of clarity required but obliged to consider pleaded allegation of accessorial liability for CFMEU contravention – declarations of contravention by individuals made without further penalty being imposed
INDUSTRIAL LAW – whether primary judge erred in rejecting contention there was a single course of conduct at common law or under s 557 – whether primary judge erred in finding penalties imposed on individuals were appropriate in their totality – where primary judge imposed civil penalties in the maximum amount against the CFMEU and 75% of the maximum amount against the CFMEU NSW – whether primary judge should have grouped contraventions of the two Unions – whether penalties imposed on the Unions appropriate in their totality – whether primary judge erred in finding s 545 was a source of power to make publication order – whether s 23 of the Federal Court of Australia Act 1976 (Cth) did provide such a power if s 545 insufficient – whether primary judge erred in exercise of discretion in making publication order as no proper basis and so long after the event – held: appeal on penalty grounds upheld in part – primary judge gave extensive and careful consideration of conduct of individuals but omitted to give adequate attention to totality in relation to Unions – penalties treated attributed conduct as separate events each warranting penalties in the maximum or 75% of the maximum amount – needed to be account given to commonality and overlap of attributed conduct – held: penalties on CFMEU reduced to 75% of the maximum amount – penalties on CFMEU NSW reduced to 40% of the maximum amount – s 23 sufficient source of power to make publication order though regard must be had to the specific legislation giving rise to the seeking of the order – publication order set aside; not appropriate to make a replacement publication order in the circumstances
Legislation: Acts Interpretation Act1901 (Cth) s 2C(1) and s 15AB(1)(b)
Evidence Act 1995 (Cth) s 140(2)
Fair Work Act 2009 (Cth) ss 12, 19(1), 50, 51, 172, 347, 348, 355, 360, 361, 362, 417, 418, 546(1), 550, 556, 557, 793
Federal Court of Australia Act (Cth) s 23
Trade Practices Act 1974 (Cth) 75B (repealed)
Explanatory Memorandum, Fair Work Bill 2008 (Cth)
Cases cited: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 358 ALR 683
Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; 249 FCR 458
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157
Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 277 IR 75
Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088
Australian Building and Construction Commissioner v Parker [2017] FCA 564; 266 IR 340
Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082; 270 IR 165
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560
Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482
Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482
Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2016] FCAFC 184; 247 FCR 339
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298
Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1; 194 IR 461
Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; 262 ALR 417; 191 IR 445
Darlaston v Parker (No 2) [2010] FCA 1382; 200 IR 353
Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118
Director of the Fair Work Building Inspectorate v Robinson [2016] FCA 525; 241 FCR 338
Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
General Manager of the Fair Work Commission v Thomson (No 4) [2015] FCA 1433
House v The King (1936) 55 CLR 499
Johnson v The Queen (2004) 78 ALJR 616; 205 ALR 346
Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14
Nahlous v The Queen [2010] NSWCCA 58; 77 NSWLR 463
Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; 221 FCR 153
Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456; 109 FCR 378
Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41‑076
Wheeler Grace & Pierucci Pty Ltd v Wright [1989] FCA 162; 16 IPR 189
Wright v Wheeler Grace & Pierucci Pty Ltd [1988] FCA 199; [1988] ATPR 40-865
Dates of hearing: 31 May – 1 June 2018 Date of last submissions: 15 June 2018 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment and Industrial Relations Category: Catchwords Number of paragraphs: 385 Counsel for the Appellants/Cross-Respondents: Mr T Game SC with Mr I Latham Solicitor for the Appellants/ Cross-Respondents: Taylor & Scott Lawyers Counsel for the Respondent/ Cross-Appellants: Mr M S White SC with Mr P Herzfeld Solicitor for the Respondent/Cross-Appellants: Minter Ellison
Table of Corrections 15 April 2019 Citation of Veen v The Queen (No 2) (1988) 164 CLR 465 corrected on cover page and at [323]. 1 May 2019 At [348], “is a way that” has been replaced with “in a way that”. ORDERS
NSD 2227 of 2017 BETWEEN: BRIAN PARKER
First Appellant
ROBERT KERA
Second Appellant
DANNY REEVES (and others named in the Schedule)
Third Appellant
AND: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Respondent
AND BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Cross-Appellant
AND: BRIAN PARKER
First Cross-Respondent
ROBERT KERA
Second Cross-Respondent
DANNY REEVES (and others named in the Schedule)
Third Cross-Respondent
JUDGES:
BESANKO, REEVES AND BROMWICH JJ
DATE OF ORDER:
5 April 2019
THE COURT ORDERS THAT:
1.The parties provide, by email to the chambers of Justices Besanko, Reeves and Bromwich, agreed or competing draft orders to give effect to these reasons within 14 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO AND BROMWICH JJ:
INTRODUCTION
[1] THE NATURAL PERSON RESPONDENTS BELOW, NOW APPELLANTS
[11]
OVERVIEW
[12]
Introduction
[12]
The building site, building companies, subcontractors and workers
[16]
Enterprise agreements
[21]
RELEVANT STATUTORY PROVISIONS
[24]
Acts Interpretation Act 1901 (Cth)
[24]
Fair Work Act 2009 (Cth) (Act)
[25]
THE BREACHES ALLEGED
[26]
THE EVIDENCE AT TRIAL
[35]
The case for the Commissioner
[38]
Mr Genovese is suspended
[39]
Blocking Action – first day (24 July 2014)
[46]
The Stop Work Action & the Stop Work Resolution – first day (24 July 2014)
[47]
The Enforcement Action & the events following the meeting
[49]
Events after 9.00 am on the first day (24 July 2014)
[52]
The morning of the second day (25 July 2014)
[53]
The case for the respondents before the primary judge
[55]
Mr Brian Parker, first respondent at trial
[56]
Mr Robert Kera, second respondent at trial
[57]
Mr Danny Reeves, third respondent at trial
[61]
Mr Peter Genovese, fourth respondent at trial [not an appellant]
[63]
Mr Michael Greenfield, fifth respondent at trial
[68]
Mr Luke Collier, sixth respondent at trial
[73]
Mr Darren Greenfield, seventh respondent at trial
[78]
Mr Tony Sloane, eighth respondent at trial
[79]
Mr Darren Taylor, ninth respondent at trial
[81]
Mr Richard Auimatagi, tenth respondent at trial
[84]
THE LIABILITY FINDINGS MADE BY THE PRIMARY JUDGE
[86]
Industrial action
[88]
The Stop Work Employees
[91]
The individual appellants – ss 348, 417 and 355
[92]
Mr Brian Parker
[95]
Mr Robert Kera
[104]
Mr Danny Reeves
[113]
Mr Peter Genovese
[117]
Mr Michael Greenfield
[118]
Mr Luke Collier
[122]
Mr Darren Greenfield
[129]
Mr Anthony Sloane
[133]
Mr Darren Taylor
[137]
Mr Richard Auimatagi
[141]
The basis for liability of the Unions
[146]
The Unions and the Joint Development Agreement
[147]
The liability of the Unions
[148]
THE PENALTY FINDINGS AND ORDERS MADE BY THE PRIMARY JUDGE
[149]
AMENDED NOTICE OF APPEAL, NOTICE OF CROSS-APPEAL AND AMENDED NOTICE OF CONTENTION
[153]
LIABILITY GROUNDS
[156]
The nature of the liability appeal
[156]
Appeal ground 1 (on liability) – asserted error in finding that the nine individual appellants organised industrial action on the second day, 25 July 2014, contrary to s 417 of the Act
[160]
Appeal ground 1A (on liability) – asserted error in finding that the contraventions of ss 348 and 355 took place on the second day, 25 July 2014
[160]
Notice of contention ground 3 (related to appeal ground 1) – sufficiency of evidence to support a finding upon an alternative basis that the nine individual appellants organised industrial action on the second day, 25 July 2014, contrary to s 417 of the Act
[160]
Appeal ground 2 (on liability) – asserted error in taking into account conduct on the second day, 25 July 2014, in making findings as to industrial action on the first day, 24 July 2014
[178]
Appeal ground 3 (on liability) – asserted error failing to make findings that are necessary to conclude that Mr Sloane (and through him, the Unions) had organised industrial action on the first day (24 July 2014), contrary to s 417 of the Act
[189]
Notice of contention ground 1 (related to appeal ground 3) – sufficiency of evidence of Mr Sloane’s involvement to support a finding that he contravened s 417
[189]
Appeal grounds 4, 5 and 6 and notice of contention ground 2, relating to appeal ground 5 on intent to coerce
[195]
Appeal ground 4 (on liability) – asserted error in finding that Messrs Parker, Kera, Reeves and Collier (and through them, the Unions) had intended to coerce the site employees on either day, being a finding required by s 348
[195]
Appeal ground 5 (on liability) – asserted error in finding that Messrs Kera and Reeves (and through them, the Unions) had intended to coerce Lend Lease Building on either day, being a finding required by s 348
[195]
Notice of contention ground 2 (related to appeal ground 5) – sufficiency of evidence to support a finding on an alternative basis that Messrs Kera and Reeves intended to coerce for the purposes of ss 348 and 355
[195]
Appeal ground 6 (on liability) – asserted error in finding that Mr Reeves had intended to intimidate Lend Lease Building via Mr Cleary on the evidence that was accepted by the primary judge
[195]
Appeal grounds 7 and 8 (on liability) – asserted error finding that the CFMEU (ground 7) and Mr Reeves (ground 8) contravened s 50 of the Act by failing to engage in the dispute resolution provision of the enterprise agreement, on the basis that his Honour failed to consider that this provision had not been invoked by anyone to whom it applied
[223]
Cross-appeal grounds 1 and 2 – asserted error in striking out the accessorial pleadings on s 50 contraventions and in failing, as a result, to determine those asserted contraventions
[232]
Cross-appeal ground 3 – asserted failure to address and determine the claim of accessorial liability at [151] of the further amended statement of claim
[241]
Cross-appeal grounds 4-6 – asserted error in dismissing s 348 claims against Messrs Michael Greenfield, Darren Greenfield, Sloane, Taylor and Auimatagi and in not applying the presumption in s 361 of the Act
[252]
Cross-appeal grounds 7 to 9 – asserted error in dismissing the s 417 claim against Mr Michael Greenfield for conduct on the first day (24 July 2014)
[262]
PENALTY GROUNDS
[265]
Appeal ground 9 (on penalty) – asserted error in failing to apply the course of conduct principle (common law or s 557 of the Act) to provisions other than s 417, in relation to the nine individual appellants and the Unions
[267]
Appeal ground 17 (on penalty) – asserted error in finding that the penalties imposed upon the nine individual appellants and the Unions were appropriate in their totality
[289]
Appeal ground 18 (on penalty) – asserted error in not applying s 556 of the Act to find that conduct by Messrs Parker, Reeves, Collier and the Unions had been penalised in relation to other contraventions
[308]
Appeal ground 10 (on penalty) – asserted misapplication of appropriate guiding principles, especially deterrence, in relation to the nine individual appellants and the Unions
[316]
Appeal ground 11 (on penalty) – asserted error in the exercise of discretion by imposing maximum penalties against the CFMEU
[321]
Appeal ground 12 (on penalty) – assertion that the penalties were manifestly excessive in respect of the nine individual appellants and the Unions
[321]
Appeal ground 13 (on penalty) – asserted error in the treatment of past contraventions as recidivism in relation to the Unions
[321]
Appeal ground 16 (on penalty) – asserted error in fixing penalty for CFMEU NSW by reference only to prior contraventions
[321]
Appeal ground 14 (on penalty) – asserted error in relying on the source of funding for penalties when fixing the quantum of penalty for the nine individual appellants and the Unions
[352]
Appeal ground 15 (on penalty) – asserted error in the exercise of discretion by reference to a percentage of the maximum penalty available against CFMEU NSW
[353]
REIMPOSITION OF PENALTIES UPON THE UNIONS ON TOTALITY GROUNDS
[357]
PUBLICATION ORDER GROUNDS
[366]
Appeal ground 19 (on publication orders) – asserted error in finding that s 545 of the Act was a source of power to make a publication order in relation to the nine individual appellants and the Unions
[366]
Notice of contention ground 4 (related to appeal ground 19) – whether if s 545 of the Act was not a sufficient source of power to make the publication order, s 23 of the Federal Court of Australia Act 1976 (Cth) did provide such power
[366]
Appeal ground 20 (on publication orders) – asserted error in basis for making publication order in relation to the nine individual appellants and the Unions
[372]
Appeal ground 22 (on publication orders) – asserted error in making a publication order in relation to the nine individual appellants and the Unions so long after the events
[372]
Appeal ground 21 (on publication orders) – asserted error in finding there was a sufficient evidentiary basis for making the publication order and in drafting that order in relation to the nine individual appellants and the Unions
[380]
CONCLUSION
[382]
INTRODUCTION
In about December 2009, Lend Lease Project Management and Construction (Australia) Pty Limited was engaged by the Barangaroo Delivery Authority on behalf of the Government of New South Wales to develop a building site located at Hickson Road, Millers Point in Sydney. The development was known as the Barangaroo South Redevelopment Project. The Barangaroo Project was carried out through the Lend Lease group of companies.
On Thursday, 24 July 2014, the federal Construction, Forestry, Mining and Energy Union (CFMEU) and the separate New South Wales union (CFMEU NSW) called a meeting of construction workers early that morning, before the start of the working day, at the building site for the Barangaroo Project. The meeting was called in response to the suspension by a Lend Lease company of Mr Peter Genovese, a union health and safety delegate at the site. Speeches were made at the meeting and a vote taken to go on strike until the following Monday. Following the meeting, a large number of site employees did not attend work that day. During the course of that day, the company obtained orders from the Fair Work Commission requiring a return to work. The next morning, Friday, 25 July 2014, a further vote was taken at a second meeting to return to work. Some workers did not attend work that second day, and others started work late that day.
The regulator, now the Australian Building and Construction Commissioner, subsequently brought a civil penalty proceeding in this Court for contraventions of the Fair Work Act 2009 (Cth) (Act) arising out of the events of 24 and 25 July 2014 (the first day and the second day). The respondents were the two Unions, Mr Genovese, and nine other individuals who were all members of both Unions and held official positions with either or both Unions. The first respondent, Mr Brian Parker, was the NSW Divisional Branch Secretary and State Secretary of the CFMEU and State Secretary of the CFMEU NSW. All 12 respondents at their trial denied that what took place on the two days constituted any contravention of the Act by any of them.
The following provisions of the Act were alleged by the Commissioner before the primary judge to have been contravened by the individual respondents:
(1)s 50, which provides that a person is not to contravene a term of an enterprise agreement – in this case, the conflict resolution provisions in the applicable enterprise agreement;
(2)s 348, which prohibits a person from organising or taking any action with intent to coerce another person to “engage in industrial activity”, as widely defined in s 347 to include “industrial action”;
(3)s 355, which relevantly provides that a person is not to organise or take any action against another person with intent to coerce the other person, or a third person, to take certain actions; and
(4)s 417, which relevantly provides that no officer of an employee organisation covered by an enterprise agreement is to “organise or engage in industrial action”, as defined in s 19(1), from the approval date of that agreement until its nominal expiry date – in this case, there were enterprise agreements covering employees at the building site that had nominal expiry dates in 2016.
The Commissioner alleged:
(1)that the CFMEU and the CFMEU NSW were, by the operation of s 793 of the Act, vicariously liable for the acts of the individual respondents and that each of the individual respondents were also liable as accessories to certain aspects of the conduct of their individual respondent colleagues;
(2)that the activity and action that took place on both the first day and the second day were contrary to conflict resolution provisions in the applicable enterprise agreement reproduced at [23] below, which stipulate that work is to continue while those provisions are put into effect, rather than initiating industrial action or industrial activity that results in work stopping, or not resuming; and
(3)that the means by which the industrial action or activity was brought about and continued, or sought to be continued, was contrary to the abovementioned provisions of the Act that proscribe coercion to bring about such activity and action; and that the very taking of industrial action during the currency of an enterprise agreement was itself a contravention (unless carried out as provided for by the Act).
The primary judge delivered separate liability and penalty judgments: Australian Building and Construction Commissioner v Parker [2017] FCA 564; 266 IR 340; and Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082; 270 IR 165, respectively. The contravention allegations were grouped around events at different points in time in a manner described in the liability judgment as the following three separate, but not entirely distinct, stages, using the definitions deployed by the Commissioner in his pleadings for convenience:
(1)Blocking Action, being action to block access to the site that commenced at about 5.45 am on the first day (24 July 2014), preceding a meeting of workers near the main entrance to the Barangaroo site;
(2)Stop Work Action, comprising a meeting of workers held between about 6.30 am and 7.00 am (Stop Work Meeting) on the first day, and the passing of a resolution to stop work in support of Mr Genovese, who had been suspended, until the following Monday, 28 July 2014 (Stop Work Resolution); and
(3)Enforcement Action, namely conduct that followed the Stop Work Meeting in aid of compliance with the Stop Work Resolution.
On the Commissioner’s case before the primary judge, about 1,000 employees at the site failed or refused to attend for work at all on the first day (24 July 2014) and about 300 employees did the same on the second day (25 July 2014), albeit some for only a short time. Those employees were referred to in the Commissioner’s pleadings as the Stop Work Employees. The usual workforce at the site was in the order of 1,100 to 1,200 workers.
The primary judge struck out a part of the Commissioner’s pleadings, found for the Commissioner on many, but not all, contraventions, dismissed other claims, made declarations of contravention and ordered the payment of penalties ranging from $3,000 to $1,326,000, totalling in excess of $2 million. His Honour also ordered the CFMEU to publish a particular advertisement concerning the conduct that had taken place. Only the case against Mr Genovese wholly failed.
The Unions are now the Construction, Forestry, Maritime, Mining & Energy Union (CFMMEU) and the CFMMEU NSW, following a union merger that took place after the primary judge’s liability and penalty decisions. Despite that change of name, it is convenient in these reasons to refer to each Union by the pre-merger names in use in 2014, at trial and in his Honour’s liability and penalty judgments.
Eleven of the 12 respondents below – that is, apart from Mr Genovese, who was not found liable – appeal from the liability and penalty orders by way of a detailed amended notice of appeal, with 22 grounds of appeal ultimately being pressed. As part of those grounds, the CFMMEU appeals against the publication order made by his Honour. The Commissioner cross-appeals against the striking out of parts of his pleadings, and the dismissal of some of the claims against some of the individual respondents (and consequently against the Unions), and further relies upon a notice of contention to defend certain challenged findings of the primary judge on alternative grounds.
THE NATURAL PERSON RESPONDENTS BELOW, NOW APPELLANTS
The primary judge summarised who each of the 10 natural respondents before his Honour were, including their roles with the Unions, as follows, noting that some took a more active role in the events than others:
Respondent
Positions held
Mr Brian Parker, first respondent (and first appellant)
A member of the CFMEU and CFMEU NSW
State Secretary of the CFMEU NSW
NSW Divisional Branch Secretary and State Secretary of the CFMEU
Divisional Trustee and National Executive Committee member of the CFMEU
Mr Robert Kera, second respondent (and second appellant)
A member of the CFMEU and CFMEU NSW
State Joint Vice-President of the CFMEU NSW
NSW Divisional Branch Assistant Secretary of the Construction and General Division of the CFMEU NSW
Mr Danny Reeves, third respondent (and third appellant)
A member of the CFMEU and CFMEU NSW
A member of the Divisional Management Committee of the CFMEU and CFMEU NSW
An employee of Lend Lease Building Pty Ltd
A delegate of the CFMEU and CFMEU NSW on the Barangaroo Project site
Mr Peter Genovese, fourth respondent (not an appellant as no findings of contravention were made against him, such that there is no fourth appellant)
A member of the CFMEU and CFMEU NSW
A member of the Divisional Management Committee of the CFMEU and CFMEU NSW
An employee of Lend Lease Building, suspended with pay from 26 March 2014
A delegate of the CFMEU and CFMEU NSW on the Barangaroo Project site
Mr Michael Greenfield, fifth respondent (and fifth appellant)
A member of the CFMEU and CFMEU NSW
Held appointment and was employed as an Organiser by the CFMEU and CFMEU NSW
Mr Luke Collier, sixth respondent (and sixth appellant)
A member of the CFMEU and CFMEU NSW
Held appointment and was employed as an Organiser by the CFMEU and CFMEU NSW
Mr Darren Greenfield, seventh respondent (and seventh appellant)
A member of the CFMEU and CFMEU NSW
Held appointment and was employed as an Organiser by the CFMEU and CFMEU NSW
Mr Anthony (Tony) Sloane, eighth respondent (and eighth appellant)
A member of the CFMEU and CFMEU NSW
Held appointment and was employed as an Organiser by the CFMEU and CFMEU NSW
Mr Darren Taylor, ninth respondent (and ninth appellant)
A member of the CFMEU and CFMEU NSW
Held appointment and was employed as an Organiser by the CFMEU and CFMEU NSW
Mr Richard Auimatagi, tenth respondent (and tenth appellant)
A member of the CFMEU and CFMEU NSW
Held appointment and was employed as an Organiser by the CFMEU and CFMEU NSW
OVERVIEW
Introduction
The primary judge described the events as they unfolded over the two days as “tumultuous”, with many workers participating, a number of officials from the CFMEU/CFMEU NSW in attendance, police (to which may be added workplace inspectors) being called and attending, and at least one neighbour in the vicinity being disrupted by the noise created.
Defences were initially filed that claimed privilege against self-incrimination. They were only replaced with amended defences and an evidentiary case for the original respondents after the close of the Commissioner’s case, a stance that the respondents were entitled to take. An unsuccessful stay application was made by Mr Collier by reason of separate criminal proceedings pending against him. Numerous pleading amendment applications were made by the Commissioner, some of which were contested.
The trial ran for 10 hearing days between mid-July and mid-December 2016. The primary judge’s liability reasons were lengthy and detailed, but necessarily could not anticipate every issue now raised in this appeal proceeding. His Honour’s penalty reasons were less detailed but necessarily were to be read with the liability judgment.
The hearing below concerned a confined set of activities over a relatively short period of time that spawned a wide‑ranging and complex dispute, both legally and factually. That has continued in this appeal proceeding. In that context, many of the facts found and findings made by the primary judge require close consideration for the resolution of the competing arguments.
The building site, building companies, subcontractors and workers
The Barangaroo Project, as at July 2014, comprised construction of three commercial office towers, two residential towers and a commercial building. At that time, there were three entities within the Lend Lease group of companies working on the Site:
(1)Lend Lease Building Pty Ltd (defined in the pleadings somewhat ambiguously as Lend Lease), formerly known as Lend Lease Project Management and Construction (Australia) Pty Ltd;
(2)Lend Lease Structures Pty Ltd; and
(3)Lend Lease Infrastructure Services Pty Ltd, known by the time of the trial as Lend Lease Services Pty Ltd.
In addition to the Lend Lease entities, there were also a number of subcontractors engaged on the Barangaroo Project.
The working hours on the site were from 7.00 am to 7.00 pm, Monday to Friday and from 7.00 am to 5.00 pm on Saturdays. There was usually a meeting prior to the start of work, commencing at about 6.30 am or 7.00 am, between management of the Lend Lease entities and construction workers.
More than 1,100 workers were on the site on 23 July 2014, the day before the first day. That attendance figure was one of the numbers of workers on the site used to benchmark the impact of the alleged conduct, in terms of the estimated number of employees at the site not turning up for work.
The main site access point had a covered walkway that led to three turnstiles. It was the only entrance to the site open at 7.00 am. The other access points behind Towers 1, 2 and 3 only opened after 7.00 am. They each had a turnstile, but before 7.00 am the turnstile was blocked by a gate closed with a padlock. It is the main site access point that is referred to in these reasons. The meetings on the first and second day took place just outside the site, near the main site access point.
Enterprise agreements
The employees of Lend Lease Building were covered by an enterprise agreement called the Lend Lease Project Management & Construction/CFMEU Joint Development Agreement Mark 8 2012-2016, also referred to as the “JDA”. The employees of Lend Lease Structures were covered by an enterprise agreement called the Lend Lease Structures Pty Ltd/CFMEU Greenfields Collective Agreement 2012-2016, approved by Fair Work Australia on 7 November 2012 with a nominal expiry date of 1 October 2016.
Clauses 19.1 and 20 of the Joint Development Agreement were relevant to the Commissioner’s case in respect of alleged breaches of that agreement and the contraventions alleged in relation to s 50 and s 347. The Commissioner, as noted above at [6], characterised the conduct on which those allegations were based as Blocking Action, Stop Work Action, the passing of a Stop Work Resolution and Enforcement Action (the latter being conduct which followed the Stop Work Meeting). This conduct was alleged to depart from what was provided for in the agreement in respect of conflict resolution and the continuance of work pending such resolution.
The relevant clauses of the Joint Development Agreement were as follows:
19. Conflict Resolution
19.1The Parties recognise that one of the aims of the Agreement is to eliminate lost time in the event of a dispute and to achieve prompt resolution. The most effective procedure is for the responsibility for resolution to remain as close to the source of the dispute as possible. To this end, the following processes are agreed:
(a) Disputes Procedure
In the event of a dispute occurring, the following procedure will be adopted:
(i)Discussion between those directly affected;
(ii)Discussion on the project between the site management and the Employee affected or a representative nominated by the Employee (including Union delegate);
(iii)Discussion between senior Company management and the Employee affected, or if nominated by the Employee their Representative or appropriate Union official;
(iv)The relevant Union official commits to make him/herself available to be involved at any stage of the procedure as required, or in respect of any potential dispute. The Company agrees to facilitating access to the project for the relevant Union official to represent Employees under this procedure subject to the Union official complying with all site rules and reasonable requests and reasonable directions of site management.
A dispute will not be referred to the next level of the above procedure until a genuine attempt to resolve the matter has been made at the appropriate level.
(b) Reference to the relevant State Board or Panel.
If the dispute occurs in Victoria or Queensland, and still exists after the above disputes procedure either party may refer the dispute to a State Industry Dispute Panel or Board constituted under Australian Government or State law. This sub-clause does not prevent any of the parties to the dispute from referring the dispute to Fair Work Australia (FWA) either before or after any decision or recommendation of the State Board or Panel. If the matter has been referred to a State Industry Dispute Panel or Board constituted under Australian Government or State law, once a decision has been handed down the matter may be referred by either party to FWA within 14 days.
(c) Reference to Fair Work Australia
A dispute may be referred to FWA for conciliation and if required, arbitration, in either of the following circumstances:
(i)If the dispute still exists after the above disputes procedure has been carried out, the dispute may be referred by any of the parties to the dispute to FWA; or
(ii)If any party to the dispute refuses or fails to follow any step of the above disputes procedure the non breaching party will not be obligated to continue through the remaining steps and may immediately refer the matter to FWA.
(d) Notices of Disputes
Should a dispute arise and it does not appear to be one which can be settled immediately, the party raising the matter will notify the other party or parties by telephone within 48 hours of the dispute arising and confirm it in writing.
20. Work Continuity
Work shall continue without interruption or dislocation during discussion and resolution of disputes.
RELEVANT STATUTORY PROVISIONS
Acts Interpretation Act 1901 (Cth)
Section 2C(1) of the Acts Interpretation Act1901 (Cth) provides:
In any Act, expressions used to denote persons generally (such as “person”, “party”, “someone”, “anyone”, “no-one”, “one”, “another” and “whoever”), include a body politic or corporate as well as an individual.
Fair Work Act 2009 (Cth) (Act)
The following provisions of the Act are relevant:
12 The Dictionary
…
enterprise agreement means:
(a) a single-enterprise agreement; or
(b) a multi-enterprise agreement.
…
single-enterprise agreement means an enterprise agreement made as referred to in subsection 172(2). [reproduced below]
...
19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a)the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b)a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c)a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d)the lockout of employees from their employment by the employer of the employees.
Note:In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a)action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c)action by an employee if:
(i)the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3)An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).
50 Contravening an enterprise agreement
A person must not contravene a term of an enterprise agreement.
Note 1: This section is a civil remedy provision (see Part 4‑1).
Note 2:A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).
51 The significance of an enterprise agreement applying to a person
(1)An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.
(2)An enterprise agreement does not give a person an entitlement unless the agreement applies to the person.
172Making an enterprise agreement
…
Single-enterprise agreements
(2)An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single‑enterprise agreement):
(a)with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or
(b)with one or more relevant employee organisations if:
(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and
(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.
Note: The expression genuine new enterpriseincludes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).
347Meaning of engages in industrial activity
A person engages in industrial activity if the person:
(a)becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or
(b)does, or does not:
(i)become involved in establishing an industrial association; or
(ii)organise or promote a lawful activity for, or on behalf of, an industrial association; or
(iii)encourage, or participate in, a lawful activity organised or promoted by an industrial association; or
(iv)comply with a lawful request made by, or requirement of, an industrial association; or
(v)represent or advance the views, claims or interests of an industrial association; or
(vi)pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or
(vii)seek to be represented by an industrial association; or
(c)organises or promotes an unlawful activity for, or on behalf of, an industrial association; or
(d)encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or
(e)complies with an unlawful request made by, or requirement of, an industrial association; or
(f)takes part in industrial action; or
(g)makes a payment:
(i)that, because of Division 9 of Part 3‑3 (which deals with payments relating to periods of industrial action), an employer must not pay; or
(ii)to which an employee is not entitled because of that Division.
348Coercion
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.
Note: This section is a civil remedy provision (see Part 4‑1).
355Coercion – allocation of duties etc. to particular person
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)employ, or not employ, a particular person; or
(b)engage, or not engage, a particular independent contractor; or
(c)allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or
(d)designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.
Note: This section is a civil remedy provision (see Part 4‑1).
360Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
417Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.
No industrial action
(1)A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:
(a)an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or
(b)a workplace determination comes into operation until its nominal expiry date has passed;
whether or not the industrial action relates to a matter dealt with in the agreement or determination.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2)The persons are:
(a)an employer, employee, or employee organisation, who is covered by the agreement or determination; or
(b)an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.
Injunctions and other orders
(3)If a person contravenes subsection (1), the Federal Court or Federal Circuit Court may do either or both of the following:
(a)grant an injunction under this subsection;
(b)make any other order under subsection 545(1);
that the court considers necessary to stop, or remedy the effects of, the contravention.
(4)The court may grant an injunction under subsection (3) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).
(5)Despite subsection 545(4), the court may make any other order under subsection 545(1) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).
Note:Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions.
550 Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note:If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.
793 Liability of bodies corporate
Conduct of a body corporate
(1)Any conduct engaged in on behalf of a body corporate:
(a)by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b)by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2)If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a)that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b)that the person had that state of mind.
Meaning of state of mind
(3)The state of mind of a person includes:
(a)the knowledge, intention, opinion, belief or purpose of the person; and
(b)the person’s reasons for the intention, opinion, belief or purpose.
Disapplication of Part 2.5 of the Criminal Code
(4)Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.
Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.
(5)In this section, employee has its ordinary meaning.
THE BREACHES ALLEGED
The outcome of the proceeding turned largely on the allegations made against the individual respondents, being the wellspring for liability on the part of the two Unions.
As to the Blocking Action, the Commissioner alleged that eight of the 10 individual respondents (excluding Messrs Michael Greenfield and Auimatagi), attended the site as CFMEU officers at approximately 5.45 am on the first day (24 July 2014) and positioned themselves to block access to the site. The conduct was particularised as:
(1)wearing hooded jumpers with CFMEU labels and standing in front of the site access point;
(2)positioning themselves such that employees of Lend Lease Building and of subcontractors, who were defined as site employees, would have to move through that group of CFMEU officers, or in close proximity to them, in order to access the site;
(3)advising employees approaching the site access point, using terms that were pleaded, that the site was shut, that there was no work that day and that there was to be a meeting at a forecourt that was just outside the site (Stop Work Meeting);
(4)effectively dissuading, preventing or obstructing a number of site employees, by nature of the presence of the group of CFMEU officers and the statements made by them, from using the site access point and attending usual pre-start meetings as part of attending for work; and
(5)organising or taking action against the site employees and against Lend Lease Building.
As to the Stop Work Action (comprising the Stop Work Meeting and Stop Work Resolution), the Commissioner alleged that:
(1)between about 6.30 am and 7.00 am on the first day (24 July 2014), all 10 individual respondents, as CFMEU officers, and between 600 and 1,000 site employees, attended a meeting at the forecourt that was just outside the site at approximately 5.45 am;
(2)Messrs Parker, Kera, Genovese and Reeves spoke in favour of stop work action against Lend Lease Building (words to the effect of what was said by Messrs Parker, Kera, Genovese and Reeves were pleaded);
(3)Mr Parker called for a vote by the site employees present on a resolution to the effect that site employees would cease work at the site until the following Monday, 28 July 2014 (Stop Work Resolution);
(4)the stated purpose of the Stop Work Resolution was to support a demand that Mr Genovese be reinstated and to place pressure on Lend Lease Building to reinstate him to his former position and duties;
(5)this was conduct organised or taken against site employees who did not vote for the Stop Work Resolution, and against Lend Lease Building; and
(6)none of the site employees at the meeting, or, alternatively, very few of them, voted against the Stop Work Resolution.
As to the Enforcement Action (comprising conduct to enforce the Stop Work Resolution), the Commissioner alleged that:
(1)after the Stop Work Meeting, all 10 individual respondents acted to ensure that site employees complied with the Stop Work Resolution and to prevent them from acting contrary to that resolution, this being conduct that was particularised as:
(a)a number of CFMEU officers, comprising all 10 individual respondents, stood in front of the site access point;
(b)that positioning meant that site employees would have to move through that group of CFMEU officers, or in close proximity to them, in order to access the site;
(c)when site employees approached the site access, the CFMEU officers questioned them as to where they were going and told them that the site was closed as a result of the Stop Work Resolution; and
(d)some of the site employees were abused, with some of the words uttered having been particularised;
(2)also after the Stop Work Meeting, Messrs Parker and Collier, in the presence of site employees, verbally accosted and abused certain officials visiting the site, being NSW police officers and inspectors from the Fair Work Building Inspectorate, with some of the words uttered having been particularised and Mr Parker’s conduct also having been particularised as loud, aggressive and intimidating;
(3)the above actions were organised or taken against the site employees, the police, the inspectors and Lend Lease Building.
The Commissioner alleged that on the next, second day (25 July 2014), at about 6.30 am, nine of the 10 individual respondents (excluding Mr Genovese) mustered outside the site access point, resumed blocking access, and called, organised and convened a further meeting of the Stop Work Employees for the purpose of communicating to them the making of s 418 orders by the Fair Work Commission. Seven of those nine individual respondents, being Messrs Parker, Kera, Reeves, Michael Greenfield, Collier, Darren Greenfield and Taylor, continued their conduct from the first day. The Commissioner pleaded particulars of what each was alleged to have said or done prior to and during the meeting by way of invitation, encouragement, intimidation or threats, or vilification or abuse of inspectors lawfully attending the site.
The Commissioner alleged that as a result of the conduct pleaded as described above, many site employees attended the Stop Work Meeting, about 1,000 employees did not attend work on the first day (24 July 2014), and about 300 employees did not attend work on the second day (25 July 2014). As noted above at [19], the number that attended work on 23 July 2014 was about 1,100, although it seems that the total number of employees was at times as many as 1,200. Lend Lease Building was deprived of the work that could have been performed by the absent workers on both days. The Commissioner alleged that the Stop Work Employees contravened the dispute resolution and continuation of work clauses in the Joint Development Agreement.
The Commissioner also alleged that the Stop Work Employees (which included Mr Reeves, who was the only current employee of Lend Lease Building among the individual respondents) engaged in “industrial action”, as defined in s 19(1)(b) and (c) of the Act, and in “industrial activity” by nature of taking part in “industrial action” as per s 347(f), by refusing or failing to attend work and instead attending the Stop Work Meeting, by passing the Stop Work Resolution, which constituted a ban, limitation or restriction on the performance of work at the site by the site employees, and by acting in accordance with the Stop Work Resolution by failing or refusing to attend work or perform any work on both days. The Commissioner alleged that this industrial action took place prior to the expiry of the relevant enterprise agreements.
The Commissioner alleged that the conduct pleaded as described above gave rise to various contraventions of the Act by the individual respondents, accessorial liability for the conduct of each individual respondent in the aid of certain other individual respondents, and contraventions by the Unions as a matter of vicarious or accessorial liability. The precise nature of the alleged individual contraventions depended on the conduct pleaded against each individual respondent by way of their particular participation in the Blocking Action, the Stop Work Action or the Enforcement Action. It also depended on who that pleaded conduct was characterised as being directed to, such as one or more of the site employees, Lend Lease Building, police or inspectors.
The Commissioner alleged against the individual respondents (and the Union respondents by way of vicarious or accessorial liability):
(1)intent to coerce the site employees to engage in unprotected industrial action constituting proscribed industrial activity and/or proscribed industrial action by participating in stopping work, in contravention of s 348;
(2)intent to coerce Lend Lease Building to allocate particular duties and responsibilities to Mr Genovese or to designate Mr Genovese as having particular duties or responsibilities, in contravention of s 355;
(3)organising industrial action by the Stop Work Employees, in contravention of s 417, or, in the alternative, advising, encouraging or inciting the Stop Work Employees to organise or engage in industrial action at the site on 24 and 25 July 2014, and, by reason of s 362, to be taken to have contravened s 355;
(4)failing to initiate and engage in the dispute resolution procedure required by cl 19 of the Joint Development Agreement, breaching cl 20 of the Joint Development Agreement and, thereby, contravening s 50 (as an employee and as a CFMEU official in the case of Mr Reeves, and as a CFMEU official in the case of the other nine individual respondents); and
(5)in the case of Mr Reeves only, because he was the only respondent who was also an employee and who himself did not attend work, engaging in industrial action in contravention of s 417 and, in breaching the terms of the Joint Development Agreement, contravening s 50.
THE EVIDENCE AT TRIAL
The primary judge observed in the liability judgment (at [133]) that:
(1)although the final form of the Commissioner’s pleadings divides the events of the first day (24 July 2014) into:
(a)the Blocking Action, commencing at about 5.45 am;
(b)the Stop Work Action, comprising a Stop Work Meeting held between 6.30 am and 7.00 am, during which a Stop Work Resolution was passed; and
(c)the Enforcement Action, being conduct which followed the Stop Work Meeting,
the evidence did not universally fall neatly into these periods;
(2)individual witnesses did not necessarily allocate the same event to the same time period, but this did not preclude findings being made that satisfied the demands of s 140(2) of the Evidence Act 1995 (Cth); and
(3)such differences in the accounts between witnesses would need to be given scrutiny.
The above approach to fact-finding by the primary judge indicates that this is the sort of case in which the factual findings ultimately made by his Honour, either way, were likely to be in the category of, or analogous to, credit findings that are especially difficult to dislodge on an appeal or cross-appeal, even by way of rehearing, because of the difficulty in demonstrating error rather than mere difference of opinion as between trial and appellate judges on the determination of factual issues for which there is generally no one correct answer.
The approach taken in the primary judge’s liability reasons was to:
(1)consider the evidence of the Commissioner first;
(2)make such uncontroversial findings as his Honour could make based on that evidence alone; and
(3)identify other, more contentious, points that required resolution by reference to the entirety of the evidence.
His Honour then turned to the evidence given by each of the 10 individual respondents, before addressing the contentious findings of fact.
The case for the Commissioner
The following is an outline of what triggered the events in late July 2014 that gave rise to this proceeding.
Mr Genovese is suspended
The fourth respondent before the primary judge, Mr Genovese, was engaged on the Barangaroo Project in the period from 2013 until 26 March 2014, when he was suspended. Prior to that suspension, he had been employed by Lend Lease Building as a level 5 construction worker, and at various times was also the Chairman of the Site Work Health & Safety Committee. As at July 2014 he was also a delegate of the CFMEU and of the CFMEU NSW.
The primary judge drew an account of the events leading to the 26 March 2014 suspension of Mr Genovese from the affidavit of Mr Hensley from Lend Lease Human Resources. In February 2014, there had been a disagreement and a physical altercation between Mr Genovese and the Site Manager for Tower 3 on the Barangaroo Project at the time, Mr Brad Geaney. The dispute between the two men concerned the adequacy of the response to what Mr Genovese considered to be safety issues concerning a walkway at Tower 3. Meetings about the altercation had taken place on 19 February 2014, on about 11 March 2014 and on about 13 March 2014.
The last of these meetings took place between Messrs Genovese, Hensley and Sheppard from Lend Lease Human Resources, and Ms Charlton and Messrs Kera, Reeves and Darren Greenfield from the CFMEU. At that meeting on about 13 March 2014, findings made by Lend Lease concerning the altercation were delivered by Mr Shepherd in a letter. The letter:
(1)described an adverse finding as to Mr Genovese’s conduct in relation to the altercation as being a breach of Lend Lease’s code of conduct and employee conduct guide dealing with harassment and bullying;
(2)required an undertaking that this would not be repeated; and
(3)warned that repetition would lead to disciplinary action.
The letter made provision for it to be signed by Mr Shepherd and by Mr Genovese. Mr Sheppard signed the letter, but Mr Genovese did not.
On the Commissioner’s case, there was a short break in the meeting, after which Mr Kera then re-entered the meeting room and advised that the Union did not agree to the warning, characterising Mr Genovese‘s conduct as part of his job as a delegate, and stating that if the foreshadowed action took place, the Union would dispute it.
A condition of Mr Genovese’s suspension that followed about two weeks later, as set out in a letter dated 26 March 2014 advising of the suspension, was that he “act in good faith and not take any steps that would, or would likely, disparage Lend Lease, discourage clients from dealing with Lend Lease or be contrary to Lend Lease’s interests”.
The Union support given to Mr Genovese was manifested, for example, by way of a poster found at another industrial site in Broadway, Sydney, authorised by Mr Parker as State Secretary of the CFMEU NSW, which said:
The poster also said that “Peter has the 100% support of the CFMEU, its Committee of Management, Delegates and Members”.
Blocking Action – first day (24 July 2014)
On the first day (24 July 2014), a meeting of workers took place near the main site access point to the Barangaroo site. Prior to that meeting taking place, on the Commissioner’s case, steps were taken to secure, or at least encourage, attendance at that meeting, those steps being described in the pleadings as the Blocking Action. The primary judge summarised the evidence of six witnesses on this activity in some detail, including what was said and observed in relation to workers arriving and attending the meeting, including some evidence suggesting intimidation. His Honour described the findings he made to that point, and the findings that needed to be made on the totality of the evidence, as follows (at [156]):
Although much of this evidence was put in issue by the Respondents and has obviously to be assessed in the light of the evidence also adduced by the Respondents, it would seem relatively uncontroversial that prior to 6.30am on 24 July 2014:
•there were some 500 to 600 workers gathered outside the Main Site Access;
•Messrs Parker, Kera, Collier, Reeves, Taylor, Sloane, Genovese and Darren Greenfield assembled outside the Main Site Access;
•these persons assembled together in the company of other persons wearing CFMEU branded clothing; and
•workers attending for work were told that there was to be a meeting across the road.
What was more controversial, and were factual issues which needed to be resolved by reference to the entirety of the evidence, were such matters as:
•whether words sought to be attributed to one or other of the individual Respondents were in fact said;
•the proper character to be ascribed to the language used;
•whether the manner in which the members of the CFMEU assembled could properly be described as intimidating and such that “they would not let people through” onto the Site; and
•whether one of the CFMEU people, albeit a person who was not identified, also told workers words to the effect that there was going to be a meeting “across the road”, that they “shouldn’t enter the site” and that the “site’s shut no work today”.
The Stop Work Action & the Stop Work Resolution – first day (24 July 2014)
The primary judge described the Stop Work Action and the Stop Work Resolution as being events that centred on the meeting of workers that was scheduled to take place at about 6.30 am on the morning of the first day (24 July 2014), with the evidence as to who was present and what was said being more extensive than that available in respect of the Blocking Action. Different witnesses gave varied accounts as to what transpired. His Honour subjected those differing accounts to scrutiny.
The primary judge summarised in some detail the evidence of eight Lend Lease witnesses, four subcontractor witnesses, and a witness from the then regulator, the Fair Work Building and Construction (FWBC), whose function was taken over by the Commissioner part-way through the proceeding before his Honour. This included what was said and observed taking place at the meeting. His Honour (at [174]), noted that there were discrepancies in the accounts given as to the number of workers estimated to have been present, the time at which events took place, and the time at which the meeting was said to have finished, but put those matters to one side at that stage. His Honour described the findings he made to that point, and the findings that needed to be made on the totality of the evidence, as follows (at [175]):
Notwithstanding such discrepancies, and although much of this evidence was again put in issue by the Respondents, it nevertheless emerged that the following findings of fact are relatively uncontroversial, namely:
•there were a number of members of the CFMEU in attendance at the Site, including those who were in attendance prior to 6.30am;
•the communication to the workers that there was to be a meeting “across the road” continued after 6.30am and continued until at least 6.45am;
•the meeting commenced sometime before 7.00am, but not at 6.30am;
•the workers who attended that meeting were addressed on matters including the desire for Mr Genovese to be reinstated; alleged safety breaches; the current rate of site allowance; and the alleged failure on the part of Lend Lease to contribute to the monies being raised in respect to a Site employee killed on Site;
•a motion was put that the workers were to not return to the Site for a period of time; and
•the meeting concluded after 7.00am, most probably after 7.15am.
What emerged as more controversial factual areas of dispute, and factual issues which needed to be resolved by reference to the entirety of the evidence and particularly that of the Respondents, focussed upon (inter alia):
•whether the motion that was put for the workers to not return to work for a period of time was a motion to not return for 48 hours or until the following Monday;
•the role played by Mr Parker in either himself “putting” the motion or whether he was merely repeating a motion proposed by one of the assembled workers;
•whether the words attributed to Mr Parker (or words substantially to the same effect) by Messrs Lin, Morrison, Smith, Cleary, Baker, Schneidereit, Tekaute and O’Connor were in fact spoken by Mr Parker;
•whether the words attributed to Mr Kera (or words substantially to the same effect) by Messrs Smith and Polsen were in fact spoken by Mr Kera;
•whether the words attributed to Mr Genovese (or words substantially to the same effect) by Messrs Tekaute, Lin, Morrison, Smith, Henson, Cleary, Zoppellaro, Schneidereit, and Polsen were in fact spoken by Mr Genovese; and
•whether the words attributed to Mr Reeves (or words substantially to the same effect) by Mr Lin were in fact spoken by Mr Reeves and that he “basically reiterated” what Mr Genovese had said, as recorded by Mr Baker in his file note.
The Enforcement Action & the events following the meeting
The primary judge referred to the final pleaded case as alleging, in substance, that:
Ÿafter the Stop Work Meeting, [all 10 individual appellants] Messrs Parker, Kera, Taylor, Darren Greenfield, Michael Greenfield, Sloane, Collier, Reeves, Genovese and Auimatagi resumed blocking the Site;
Ÿafter the Stop Work Meeting, Messrs Parker and Collier, in the presence of Site employees, verbally and physically accosted certain officials at Site, being police in attendance and inspectors from the Fair Work Building Industry Inspectorate; and
Ÿmany Site employees failed or refused to attend the Site for work.
With a number of express reservations, the primary judge largely accepted the evidence relied upon by the Commissioner as a factual account of the events as they unfolded. His Honour summarised the evidence of five Lend Lease witnesses, six contractors, an inspector and a police officer as to what they heard by way of conversation and what they observed.
His Honour described the findings he made to that point, and the findings that needed to be made on the totality of the evidence, as follows (at [191]):
Although much of this evidence relied upon by the Commissioner was again put in issue by the Respondents, it nevertheless emerged that the following findings of fact are relatively uncontroversial, namely:
Ÿby the time the meeting commenced, some 800 to 1,200 workers were in attendance – the precise number matters not. What is of importance is that a significant number of the entire workforce attended;
Ÿafter the Stop Work Meeting concluded, members of the CFMEU congregated in the vicinity of the Main Site Access;
Ÿthe workers who had attended the meeting (or, at the very least, the overwhelming number of workers) did not thereafter return to work; and
Ÿthe police attended at the Site.
Again, what was more controversial, and were factual issues which needed to be resolved by reference to the entirety of the evidence, were such matters as:
Ÿthe manner in which the CFMEU persons were assembled and whether (as suggested by the Commissioner) they congregated in a manner which was intimidatory and to give effect to the Stop Work Resolution and to prevent workers who may have wished to attend for work or (as suggested by the Respondents) whether they were simply talking to each other; and
Ÿthe words which were said to workers and others, including the police.
Events after 9.00 am on the first day (24 July 2014)
The primary judge described a number of events that took place after 9.00 am on the first day (24 July 2014) as being of potential relevance. This aspect of his Honour’s reasons was as follows (at [192]-[198]:
First, there were a series of further exchanges between members of the CFMEU and others.
Thus, for example, at about 9.10am on that date, Mr O’Connor was in a reception room at the Site office. He saw Mr Collier come up to the window of the Site office and say words to the effect:
You’re a fucking grub
And:
Fucking dog
After leaving the Site office, and at about 9.18am, Mr Collier again approach[ed] Mr O’Connor and said words to the effect:
You’re a fucking grub, why are you here, go away. You’re lower than a paedophile you grub.
This account given by Mr O’Connor is accepted.
Ms Tadros, an inspector with the Fair Work Building Industry Inspectorate, observed that at about 9.50am there were about 20 people standing in small groups and individually on the footpath towards the Main Site Access. At about that time she saw Messrs Parker, Collier, Sloane, Auimatagi, Michael Greenfield and Kera. She took a photograph on her mobile phone and was able to recognise from that photograph Messrs Parker, Collier, Auimatagi, Kera and Michael Greenfield. Although cross-examined to suggest that one or other of the faces of those persons were either not visible or not clearly visible, there can be no doubting her identification of those persons. Not surprisingly, she maintained that at other times their faces were visible and she recognised some from their build. She had also seen Messrs Sloane and Auimatagi previously and later confirmed their identity by reference to photographs held on record. Her evidence as to identification is accepted.
Mr Armstrong, another inspector employed by the Fair Work Building Industry Inspectorate, was in his office on 24 July 2014 and had a brief discussion with Mr Barr who told him that “1,200 workers have walked off at Barangaroo”. He said that they would have to talk later to discuss whether there was a need to go to the Site the following day. At around mid-morning, Mr Armstrong located the following online news article on the CFMEU website:
Later in the day Mr Barr told a meeting of Fair Work Building Industry inspectors that:
Lend Lease may be going to the Fair Work Commission to seek orders to stop the industrial action and require the CFMEU workers to return to work.
Mr Barr arrived on Site at about 9.45am. As he walked towards the Main Site Access he observed Mr O’Connor and Ms Siciliano speaking to two uniformed New South Wales Police officers. He recognised Messrs Michael Greenfield, Parker and Collier.
Later that day, a Senior Deputy President of the Fair Work Commission (the “FWC”) made an order under s 418 of the Fair Work Act. Section 418(1) provides as follows:
If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
The order was expressed to come into effect immediately and to remain in force for a period of three months. One term of the order required the preparation of a written notice and for it to be signed by an authorised official of the relevant Unions, that notice being in the following form:
The Fair Work Commission has issued a section 418 order to stop or prevent industrial action.
This order is called Lend Lease Building Pty Limited Industrial Action Order July 2014.
The order requires that there be no unprotected industrial action at the Barangaroo South site in the State of New South Wales (Site) (including but not limited to bans, limitations and restrictions on the performance of work).
The order applies to:
Ÿthe following unions:
ŸConstruction, Forestry, Mining and Energy Union;
ŸCommunications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;
including each of their office-holders and those of the unions’ delegates who are Site Employees;
ŸSite Employees.
Accordingly, any direction, advice or authorisation by the Union to members of the Union employed by the Company to engage in industrial action at the Site which is not protected is withdrawn and such action must stop or not occur. Those members should return to work as normal and perform work in the manner in which it is usually performed, without any form of ban, limitation or restriction on the performance of work.
The morning of the second day (25 July 2014)
The primary judge noted that one of the amendments effected by the final form of the pleadings as filed on 14 July 2016, after three of the 10 hearing days had taken place, and one of the principal bases upon which leave to amend was opposed by the respondents before his Honour, was that the modified pleading expressly included an amendment directed to the events of the second day, 25 July 2014. His Honour rejected that opposition from the respondents primarily because the events of 25 July 2014 had always been included in the statement of material facts that had been pleaded, and on the basis that the amendments merely clarified the pleadings on matters that previously may have been uncertain. The amended form of the pleading was summarised by his Honour as alleging:
·at about 6.30 am a “number of CFMEU officials being Parker, Kera, Reeves, Collier, M Greenfield, D Greenfield, Sloane, Taylor and Auimatagi mustered outside the Site Access”;
·“resumed blocking the Site Access”;
·“called, organised and convened a further meeting of the Stop Work Employees for the purposes of communicating to them the making of section 418 orders by the Fair Work Commission”; and
·continued their conduct from 24 July 2014.
The primary judge again summarised the evidence relied upon by the Commissioner, at this point from eight Lend Lease witnesses, six subcontractors, and four inspectors as to what they heard and observed. His Honour described the findings he made to that point, and the findings that needed to be made on the totality of the evidence, as follows (at [227]-[228]):
Although much of this evidence was again put in issue by the Respondents and has obviously to be assessed in the light of the evidence also adduced by the Respondents, it would seem relatively uncontroversial that in relation to the events that occurred on 25 July 2014 that:
Ÿthere was a meeting in the forecourt opposite the Main Site Access which commenced at about 6.30am and finished sometime after 7.00am;
Ÿthere were fewer workers who attended this meeting than the meeting held on 24 July 2014 but the numbers in attendance were no less than about 100;
Ÿthere were in attendance the following members of the CFMEU: Messrs Parker, Collier, Michael Greenfield, Darren Greenfield, Reeves, Kera, Taylor, Sloane, and Auimatagi;
ŸMessrs Parker and Collier addressed the assembled workers; and
ŸMr Parker advised the workers of the order made by the Fair Work Commission on the afternoon of 24 July 2014 requiring the workers to return to work.
There is less controversy in respect to these events than those that occurred on the previous day. To some extent that may be attributable to the fact that there was a video recording of more of these events than was available in respect to the 24 July 2014 events.
What was more controversial, and which necessarily has to be assessed by reference to the entirety of the evidence and, in particular, the evidence of the Respondents themselves, are such facts as:
Ÿwhat was intended to be conveyed to the workers by Mr Parker when he addressed them (if anything) in addition to advising them of the orders made by the Commission;
Ÿwhat was said and done by other members of the CFMEU and what they intended to achieve by making comments to the Fair Work Building and Construction inspectors; and
Ÿwhat happened after the meeting concluded and how many workers attended for work and performed work on 25 July 2014.
The case for the respondents before the primary judge
After the close of the Commissioner’s case, each of the 10 individual respondents waived any privilege against self-incrimination or penalty privilege, gave evidence and was cross‑examined. The primary judge summarised the evidence of each of the individual respondents. Some of that summary, such as for Mr Parker’s evidence, was in considerable detail and was interspersed with reference to parts of the evidence adduced by the Commissioner. His Honour reached a number of factual conclusions.
Mr Brian Parker, first respondent at trial
Mr Parker did not fare well, with reservations being expressed by the primary judge as to the reliability of his evidence. Much of his exculpatory account of events was not accepted. His Honour accepted that the following events and utterances attributed to Mr Parker took place, which was to a substantial degree contrary to his evidence:
(1)At [238], that once the meeting on the early morning of the first day (24 July 2014) started, Mr Parker took a more prominent role and made statements to those present that:
· he was aware of the “findings” of the Lend Lease investigation and that he believed the findings were that “Peter has done nothing wrong”;
· it would take strike action for Lend Lease to reinstate Mr Genovese;
· Mr Genovese should be “reinstated immediately”;
· “enough is enough. We’re going to take on Lend Lease”;
· “who will walk out the gate until Pete G is reinstated? It will take more than just today to send that message to Lend Lease”;
· “you have to start standing up for people like Peter”; and
· “I have no problem going to [gaol] for it”.
(2)At [241], that Mr Parker had displayed a willingness to misrepresent the facts as he presented them to the workers, being a reference to the above statement that the Lend Lease investigation had found that Mr Genovese had done nothing wrong, when he knew that was not the case.
(3)At [243], that, in relation to the passing of the Stop Work Resolution, Mr Parker said words to the effect of:
· “what motion are we going to put forward to get Peter Genovese back to work”;
· “who will walk out the gate until Peter G is reinstated”; and
· “it will take more than just today to send that message to Lend Lease”.
(4)At [246], that Mr Parker’s denial that he attempted to encourage the workers to vote on the Stop Work Resolution as they did should be rejected and, instead, it should be concluded that his intention was in fact to “stir up” the workers and to put pressure on Lend Lease.
(5)At [247], that after the meeting, Mr Parker assembled outside the main site access point and, with some of the other members of the CFMEU, remained there for the next two and half to three hours, during which time other members of the CFMEU were heard to use expressions such as “you’re just a fucking dog”.
(6)At [248], that Mr Parker confronted a female police officer and said “who do you think you are”. She told him to “calm down”, described him as “yelling in a loud voice” and described his conduct as trying “to intimidate me with body language”. His Honour further concluded at [249] that by engaging in this exchange:
… Mr Parker exposed his unwillingness to brook any opposition to the objectives he sought to pursue and, equally of importance, is that it exposes the objective of presenting to the workers in the vicinity that the Union would even take on the police to achieve those objectives. The Union was not going to be intimidated by the presence of the police; it was the Union, it is concluded, that was setting out to intimidate (inter alia) the workers. The exchange with the police Constable formed part of the background factual context in which it can readily be concluded that Mr Parker was deliberately setting out to create an atmosphere of defiance, even as against those charged with enforcing the law.
(7)At [250], that Mr Parker also took an active role in the events on the morning of the second day (25 July 2014). Further, at [255], that at that meeting, Mr Parker was pursuing the following two objectives when addressing the workers:
(a)informing them of the orders made by the Fair Work Commission and the need to finish the meeting by 7.00 am; and
(b)urging them to continue their strike action;
and that Mr Parker’s denial of urging the strike action to continue should be rejected, with it being concluded that he was setting out to create “an atmosphere of defiance”, particularly “towards the FWBC [Fair Work Building and Construction] inspectors”.
(8)At [256], that the words attributed to Mr Parker and accepted as having been uttered by him at the meeting on the second day (25 July 2014) went well beyond any purpose of simply conveying to the assembled workers the message that the Fair Work Commission had made orders, and should be characterised as an attempt to incite or encourage the workers to continue their existing strike action.
(9)At [259], that Mr Parker’s involvement in the events as they unfolded on both days (24 and 25 July 2014) could not be divorced from the earlier commitment on the part of the CFMEU to having Mr Genovese reinstated, as evidenced by the poster referred to above at [44], authorised by him.
Mr Robert Kera, second respondent at trial
His Honour also expressed reservations as to accepting Mr Kera’s evidence without caution, noting that this evidence was characterised by a failure to answer many of the questions put to him and by an attempt to convey the evidence that he wanted to give.
In respect of Mr Kera’s account of his knowledge of, and involvement in, the allegations against Mr Genovese, his Honour noted the following two things in particular (at [264]-[266]):
(1)While Mr Kera held strong views as to the manner in which Mr Genovese had been treated, those views were not founded on a clear understanding of the basis upon which Lend Lease had made its findings and issued Mr Genovese with a warning letter. Despite having available to him a copy of the statements made concerning the conduct of Mr Genovese, Mr Kera did not seem to be familiar with those statements and did not seem to have taken the time to read them.
(2)Mr Kera accepted having attended two meetings concerning the investigations into the conduct of Mr Genovese. There were, however, two differing accounts in relation to Mr Kera’s attendance. On Mr Kera’s account, he said at one of those meetings words to the effect of “I’m asking Lend Lease to cease this investigation”, and denied saying words to the effect of “I’m telling Lend Lease to cease this investigation”. His Honour found that Mr Kera did, in fact, tell, rather than ask, Lend Lease Building to cease the investigation. That included an acceptance of evidence that Mr Kera stated at the meeting on 11 March 2014 that the CFMEU did not “agree to any warning at all” and that if “it [the investigation] proceeds, we will dispute it”, as well as Mr Kera having said that he was “angry” that the investigation had not already been shut down.
The primary judge considered Mr Kera’s lack of knowledge of the allegations made concerning Mr Genovese, and his anger in response, as forming part of the factual matrix relevant to making findings as to Mr Kera’s “intent” when engaging in conduct. In that regard, his Honour accepted or concluded the following:
(1)At [268], that, with respect to knowledge of the Joint Development Agreement, Mr Kera had more immediate knowledge than Mr Parker, having represented the CFMEU NSW in the negotiations leading to that agreement in 2012, and having accepted in his evidence that that agreement “had a dispute resolution procedure”, but that he did not know its precise content, nor did he have knowledge of cl 20 of the agreement.
(2)At [269], that, with respect to the events of 24 and 25 July 2014, Mr Kera “decided, along with Brian Parker, that we needed to have a communications meeting with the workforce to let them know what was going on”, but did not recall “the steps that I took to organise the communications meeting, but I did organise it”.
(3)At [270], that, prior to the meeting of 24 July 2014 commencing, Mr Kera stood with other union officials “in the general area of the site access point” but there was “no formation or wall of union officials near the entrance”, such that Mr Kera was “not aware that anyone was prevented or blocked from gaining access to the site”. His Honour, in accepting this, noted that the manner in which the CFMEU officials were assembled said “little as to their purpose in being present or the effect that their presence had on workers seeking to gain access to the Site”.
(4)At [271], that Mr Kera, who addressed the workers at the meeting along with Messrs Parker, Reeves and Genovese, could not recall what he said, aside from accepting that he said, “there has been an injustice committed down here at Barangaroo against Peter Genovese”, and something “about a worker who had passed away on the site earlier that year”. Mr Kera made a number of further concessions about what he said in cross‑examination. His Honour concluded from that evidence that Mr Kera was trying to “stir up” the workers by addressing them in this manner, and rejected Mr Kera’s own rejection of having that intent or motive.
(5)At [272], that Mr Kera had told the workers that the “situation with Peter Genovese has got to stop” and that he “must be reinstated immediately as safety committee chairman”.
(6)At [273], that Mr Kera (based on the account of a site manager named Mr Polsen) told workers after the meeting that “the site is closed from the vote”, and that Mr Polsen at that point told Mr Kera that the action being taken was “unprotected action” and that it was “illegal for us to close the site”. His Honour noted Mr Kera’s denial that he said words to the effect of “the site is closed from the vote”, “where are you going fellas?” or “[y]ou had a chance to vote”, or that Mr Polsen, in their conversation, said to him that “this is unprotected action, the site is open”, which Mr Parker also maintained. His Honour accepted Mr Polsen’s account over that evidence.
(7)At [275], that on 25 July 2014, Mr Kera told the assembled workers that inspectors were present; that they were there “to prosecute workers”; that the workers had “the right to go to work and not be prosecuted like dogs”; that he said words to the following effect:
Have a look to your right. There’s three individuals over there. That’s called the FWBC, the Fair Work Building and Construction Commission. They’re here today to monitor what’s going on so they can go around and fight and prosecute workers in Australia. This is fucking Australia in 2014! We’re doing work. We’re not fucking dogs! We’ve got the right to go to work, we’ve got the right to get paid and we don’t have the right to go in there and get prosecuted and put off by those individuals.
and that Messrs Kera, Michael Greenfield and Collier stood in close proximity when Mr Greenfield said to the inspectors, “[a]re you the Lend Lease intimidation squad?”
Thus, the role of any past contraventions is to be no more than a prism through which to view the instant contravention. This enables a court to assess whether, for example, the instant contravention is an “uncharacteristic aberration”, or whether the contravener has, by the instant conduct, manifested “a continuing attitude of disobedience of the law”. If the latter, as is clearly available to be concluded in this case, the heightened need for deterrence may indicate that a more severe penalty is warranted for the instant contravention. Nonetheless, that penalty must still fall within the applicable range that is otherwise considered appropriate for that contravention. If that is not carefully observed, the contravener may suffer the fate of being sanctioned anew for past contraventions, as the above quote from Veen (No 2) makes clear is not permitted.
Veen (No 2) also provides valuable guidance as to the role of the maximum penalty. The High Court’s observations at 478 make it clear that the maximum penalty is reserved for contraventions falling within the worst category of cases for which that penalty is prescribed. This does not require characterisation as the worst possible case. However, a case is not in the worst category merely by reason that the contravener has a history of prior contraventions, although that history may assist in the proper characterisation of the instant contravention. Considerable caution may be required to avoid blurring this distinction. This is especially so when, as in this case, past contraventions are many in number, extend over a protracted period of time and the legislature has not seen fit to provide greater penalties for second and subsequent contraventions.
Applying the foregoing, several aspects of the primary judge’s comments about prior contraventions by the CFMEU require careful consideration. His Honour carefully and extensively considered the conduct of the nine individual appellants, and especially that of the four principal individual appellants, Messrs Parker, Kera, Reeves and Collier, whose conduct gave rise to the attribution of liability on the part of both Unions, making extensive findings of fact and findings of contravention in the liability judgment in relation to each of the individual appellants. The penalties imposed on the nine individual appellants for the s 417 contraventions had quite a wide range of differentiation, ranging from $3,000 to $9,000 out of a maximum of $10,200. The penalties imposed on the four individual appellants for the coercion contraventions (ss 348 and 355) had a lesser degree of differentiation, ranging from $7,000 to $9,200. The primary judge, as a result of his Honour’s factual findings on liability, plainly considered that some contraventions were more serious than others. His Honour varied the penalties imposed on the individual appellants accordingly.
When it came to attribution, with the exception of the s 50 contravention where the CFMEU but not the CFMEU NSW was liable, the attributed conduct giving rise to liability, and thus penalty, was exactly the same. The starting point for the imposition of penalties upon the two Unions was therefore that the basis for attribution (apart from s 50) was the same in the hands of each Union; but the conduct being attributed to each Union in fact differed according to the differential conduct of the individual appellants. These points of difference were important; if they were not to carry through to the penalties imposed for each contravention by each Union, that needed to be explained. Yet, as will be seen, the only identified basis for differentiation that was applied was the difference in the past contravening history of each Union.
Given that the Unions had no capacity to act except through such natural persons, their contravening conduct necessarily did not receive separate consideration at the liability stage beyond the findings made as to the capacity in which the individual appellants were acting. Rather, his Honour, at [537] of the liability judgment made findings of contravention against the CFMEU in relation to the s 50 contravention; and at [540] of the liability judgment made attributed findings of contravention against both the CFMEU and CFMEU NSW. When it came to the evaluation of the conduct of the two Unions for the purpose of imposing penalties upon them, his Honour’s comments as relevant to the conduct of those Unions were either cast at a level as to what had taken place overall, such as the impact of the strike on loss or damage, or were of an evaluative kind. As to that evaluative exercise, his Honour said (in the penalty judgment at [29]-[36]) the following (emphasis added):
In very summary form, the CFMEU has been found in the present proceeding to have contravened ss 50, 348, 355 and 417 of the Fair Work Act. A separate Table prepared by the Commission in respect to contraventions by the Respondents of the Fair Work Act, the Building and Construction Industry Improvement Act 2005 (Cth) and/or the Workplace Relations Act1996 (Cth) (the “Workplace Relations Act”) record over 100 occasions upon which contraventions have been found and/or penalties have been imposed on the CFMEU.
Founded upon this chronology, it is concluded that the CFMEU has long demonstrated by its conduct that it pays but little regard to compliance with the law and indeed has repeatedly sought to place itself above the law.
The CFMEU is to be regarded as a “recidivist” offender: cf. Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226 at [63] per Tracey J. Its conduct has only gone down-hill since his Honour made those observations. It is difficult, if not impossible, to envisage any worse conduct than that pursued by the CFMEU. The CFMEU assumes a prominent role in the industrial affairs of this country and has consistently exhibited a contempt for compliance with the law. The conduct of its officers and employees has consistently shown a total contempt for the rights of occupiers and a total contempt for the constraints imposed by the law. It is difficult to perceive how such conduct can be regarded as in the best interests of the bulk of its members and the workers it supposedly represents. Such conduct may promote the CFMEU as a “militant” union. But the constraints imposed by the law apply to all – including the CFMEU.
It is, with respect, not possible to envisage worse union behaviour. The prior imposition of penalties – some nearing the maximum – against the CFMEU has not deterred it from engaging in clearly unlawful industrial action. Indeed, the conduct for which the CFMEU assumes liability in the present proceeding shows a further and serious contempt for the law. The CFMEU’s conduct exposes a cavalier disregard for the prior penalties imposed by this Court and exposes the fact that such prior impositions of penalties have failed to act as a deterrent against further unlawful industrial action.
The maximum penalty should thus be imposed upon the CFMEU. In the absence of legislative action, it may (regrettably) be expected that even penalties imposed at the maximum now permitted will not act as a deterrent.
The conduct of the CFMEU NSW calls for different considerations. As correctly submitted on behalf of the Respondents, “the contraventions of the federal union should not be visited upon the state union or the personal respondents” as they “all have separate identities”.
A table helpfully included in the Supplemental Submissions in Reply filed by the Respondents on 14 August 2017 identifies 9 occasions upon which the CFMEU NSW has been exposed to penalties, over a period from 2004 to 2011. Its conduct in the past has, accordingly, not attracted findings as to contraventions or resulted in penalties imposed to anywhere near the same extent as the CFMEU. Its conduct nevertheless remains far from satisfactory. But such conduct calls for less than the maximum penalty.
In the circumstances, it is considered that a penalty in the amount of 75% of the maximum should be imposed on the CFMEU NSW.
As already noted above, in order to impose the maximum penalty for a civil penalty contravention, it is not necessary that it be more than in the worst category. Yet his Honour went further and said in relation to the conduct attributed to the CFMEU that it was “difficult, if not impossible, to envisage any worse conduct” and that “it was not possible to envisage worse union behaviour”, for which the maximum penalty should apply for each attributed contravention. This was despite the attributed conduct being of differential seriousness as reflected in the different penalties imposed on the individual appellants. Except for the s 50 contravention which only applied to the CFMEU, his Honour described exactly the same attributed conduct in the hands of the CFMEU NSW as being conduct that deserved the lesser characterisation of being “far from satisfactory”, and called for “less than the maximum penalty”, being 75% of the maximum. This was again despite each attributed contravention being of differential seriousness as reflected in the different penalties imposed on the individual appellants.
This approach of no differential between the attributed conduct despite there being differential seriousness in the hands of the individual appellants, and a substantial differential as between the two Unions despite the attribution as between them being the same, the only material difference between them being their past contravening history, entails:
(1)treating attributed conduct on the part of the individual appellants, which was at least to some degree different, as though it was the same; and
(2)treating attributed conduct in the hands of the two Unions, which was by precisely the same process of attribution and therefore was relevantly the same, as though it was different in a manner that went over and above a proper regard to different contravening histories.
As the above discussion of Veen No. 2 demonstrates, while the role of past conduct informs the need for deterrence, that cannot be used to change the character of the instant contravention. Without an explanation as to how it was possible to treat attributed contraventions that were the same in the hands of the Unions differently, and attributed contraventions that were different as to their source in the same way, it is impossible to avoid the conclusion that past contraventions have been inadvertently used by his Honour in a way that goes beyond a prism through which to view the instant contraventions. Thus in this way, which is hard to quantify, the principles in Veen (No 2) have been breached. That error in approach means that the exercise of the discretion by imposing uniform maximum penalties against the CFMEU has miscarried as a matter of process, rather than necessarily the result. Thus ground 11 should succeed, and upon that basis, as for totality, the penalties imposed on the two Unions should be set aside and the penalty imposition exercise for each carried out afresh.
The result of manifest excess beyond the totality findings already made out is not established. Ground 12 does not succeed.
Nor was there any separate error in finding that past contraventions were reflective of recidivism in the hands of the CFMEU. No other rational conclusion can be reached in light of that Union’s contravening history, at least in the construction industry. However that only heightens the need for caution in the application of Veen (No 2). No such finding of recidivism was made in respect of the CFMEU NSW. Ground 13 must fail.
The penalty imposed on the CFMEU NSW was not fixed by reference only to prior contraventions. It was fixed by the attribution of responsibility for the conduct of the individual appellants who were themselves found to have contravened. Ground 16 must fail.
Appeal ground 14 (on penalty) – asserted error in relying on the source of funding for penalties when fixing the quantum of penalty for the nine individual appellants and the Unions
Ground 14 of the amended notice of appeal was abandoned following the decision of the High Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157.
Appeal ground 15 (on penalty) – asserted error in the exercise of discretion by reference to a percentage of the maximum penalty available against CFMEU NSW
Ground 15 of the amended notice of appeal on parity states:
The primary judge erred in the exercise of his discretion at [36] of Parker (No 2) by determining penalty by reference to a percentage of 75% of the maximum penalty available against the CFMEU NSW.
Particulars
(i)The primary judge erred in not assessing the principles of parity between the CFMEU and the CFMEU NSW.
(ii)The capacity of the CFMEU NSW to operate in the federal sphere was necessarily limited;
(iii)The CFMEU NSW did not act independently of the CFMEU;
(iv)The CFMEU NSW did not provide different instructions to the individual appellants from those provided by the CFMEU;
(v)Every individual appellant was an officer of both the CFMEU and the CFMEU NSW;
(vi)The finding was arbitrary and the primary judge provided no reasoning for the conclusion.
The substance of the appellants’ complaint is that the primary judge treated the CFMEU NSW as if it were as equally culpable as the CFMEU, and then reduced its penalty by 25 per cent by reason of its substantially better record of contravention, including its avoidance of penalties since 2011. This is argued to be a failure by his Honour to have regard to parity as between the two Unions. The appellants rely upon the fact that the CFMEU NSW is a union registered under the Industrial Relations Act 1996 (NSW), with a limited role that has arguably been confined since the introduction of the WorkChoices legislation in 2005, which amended the Workplace Relations Act 1996 (Cth), to investigating and enforcing state occupational health and safety legislation. Such matters were not the subject of this case. The appellants submit that the CFMEU NSW performed no action independent of the CFMEU and provided no directions to its officers and members that were different from those provided by the CFMEU. As such, its role was nominal and no more than a nominal penalty was appropriate.
The Commissioner counters by submitting that the conduct of the individual appellants was found to have been engaged in by both the Union appellants, that Union officials are taken to have acted in accordance with the policies of the Unions, and that the Unions must therefore assume responsibility for their acts. The task of the primary judge was therefore to attribute to each of the Unions the responsibility that each must bear for those who acted on their behalf and in their scope of employment by the Unions, citing Darlaston v Parker (No 2) [2010] FCA 1382; 200 IR 353 at [53]-[56] (a prior decision of the primary judge). The Commissioner effectively asserts that the appellants now attempt to run a case on appeal that was not run below. That is because the appellants assertedly did not adduce any evidence at trial of the particulars to ground 15 now relied upon, which suggest that if parity is about applying treatment of like contraveners in a like manner, then the CFMEU NSW should be penalised in the same way as the CFMEU, citing Postiglione v The Queen (1997) 189 CLR 295 at 301-302. However, the Commissioner submits that the two Unions were not entirely alike, with the primary judge being aware, for example, that the CFMEU NSW was not found responsible for the contravention of s 50. The Commissioner submits that his Honour applied the relevant penalty principles in fixing the CFMEU NSW’s penalty at 75% of that of the CFMEU, with the appellants’ apparent complaint being the weight given to the relevantly different situation of the CFMEU NSW.
While at first blush the penalty imposed on the CFMEU NSW does appear harsh, the appellants have not demonstrated error of the kind that is necessary to permit intervention upon this basis, independently of the intervention that will now take place upon the basis of totality. The outcome complained of is a direct consequence of the legal structure that the CFMEU chose to adopt, the officials it chose to have appointed jointly with the CFMEU, the effect of s 793 and the case that it ran on penalty. This ground of appeal must therefore fail.
REIMPOSITION OF PENALTIES UPON THE UNIONS ON TOTALITY GROUNDS
It is important to remember at the outset that the totality adjustment exercise now to be carried out does not entail any finding that individual sanctions imposed, or to be imposed, are in isolation excessive, let alone manifestly so. Rather, it is directed to the overall impact of the accumulated effect of otherwise acceptable penalties to ensure that the whole is not greater than the sum of the parts. In criminal sentencing when gaol terms are involved, that can be achieved by way of a degree of concurrency, so that an offender is serving all or part of two more sentences at the same time, reducing the impact of what might otherwise be perfectly permissible cumulative sentences for conduct that is otherwise separate and distinct.
Because of the nature of the totality exercise, especially in the context of appellate intervention adjustment for totality, it can be acceptable for this to be carried out in a somewhat mathematical way in order to arrive at a just result. In that way, the same effect may be achieved as partial concurrency of gaol terms. It is ultimately an impressionistic exercise, akin to the instinctive synthesis final stage of criminal sentencing. In this case, this is done in lieu of, for example, attempting to address the error arising from the use of the prior contraventions, on any view a very difficult exercise for an appeal court to carry out in a manner that genuinely reflects the nuanced differences between the attributed contraventions of the nine individual appellants.
Dealing first with the maximum penalty of $51,000 imposed upon the CFMEU in respect of the s 50 contravention via the eight individual appellants apart from Mr Reeves, once it is realised that all eight bases for direct liability have been treated by the primary judge as a single contravention, there is an insufficient basis to intervene. There was a reasonable measure of leniency in proceeding in that way. The s 50 penalty imposed on the CFMEU of $51,000 should not be disturbed.
Turning then to the remaining 25 contraventions by the CFMEU and the 25 contraventions by the CFMEU NSW, across ss 348, 355 and 417 of the Act by way of totality adjustment, both sets of 25 contraventions should simply be reduced to some lesser percentage of the maximum to account for the overlap of the attributive conduct of the individual appellants. While it would be possible to reduce the percentage differentially as between the two days and/or differentially as between s 348 and s 355 on the one hand, and s 417 on the other, it is not necessary to make it that complicated. Totality is all about the end result, with the reduced individual penalties reflecting that holistic view, rather than the appropriateness of those individual penalties taken out of that context.
An appropriate course is to consider and thereby to evaluate a number of possible reductions to the penalties imposed on the two Unions as an exercise in totality adjustment:
(1)reducing the 100% maximum for each of the remaining 25 contraventions by the CFMEU to somewhere between 50% and 90% of the maximum for each contravention, such that the overall penalty for these contraventions (that is, apart from s 50) would be reduced from $1,275,000 to a figure between $637,500 to $1,147,500, with an intermediate figure of $956,250 (75%);
(2)reducing the 75% maximum for each of the 25 contraventions by the CFMEU NSW to somewhere between 20% and 60% of the maximum for each contravention, such that the overall penalty imposed would drop from $956,250 to a figure between $255,000 to $765,000, with a midpoint of $510,000 (40%);
(3)thereby making the aggregate penalty for the 25 contraventions across the two Unions drop from $2,231,250 to between $892,500 and $1,912,500.
While the lower end of these ranges is an excessive downward adjustment having regard to the factual findings of the primary judge, which in the greater part have not been challenged, the upper end does not entail a sufficient adjustment when the conduct is considered globally with a weather eye on deterrence. This was large scale, planned and skilfully executed illegal industrial activity, carried out by combined actions to maximise the prospects of success.
The aspect of Veen (No 2) which acknowledges that intractable behaviour may require a greater degree of deterrence is more pertinent for the CFMEU because of its more substantial contravening history. This history casts a much more adverse view of the contraventions in its hands than in the hands of the CFMEU NSW. When the greater need for deterrence arising from the instant contravening is properly considered, there is no element of imposing new sanctions for past contraventions. Instead, the prism of the past informs acutely the view to be taken of the conduct in contemplation. It was this sort of reasoning that enabled Mr Veen to have a life sentence for manslaughter upheld, despite having earlier received a sentence from the High Court of 12 years’ imprisonment for a substantially similar prior act of manslaughter, albeit with protection of the public rather than deterrence as the governing consideration, and an absence of provocation for the second offence.
This leads to the conclusion that a reduction for the CFMEU from 100% to 75% of the maximum penalty for each of the 25 contraventions to $956,250, and a reduction for the CFMEU NSW from 75% to 40% of the maximum penalty for each of the 25 contraventions to $510,000, produces a just, parity influenced, result. The combined total of $1,466,250 will also deliver a significant measure of general deterrence.
The penalties both retained and freshly imposed will be as follows:
1st day (24 July 2014) 2nd day (25 July 2015) s.417 s.50 Total s.348 s.355 s.348 s.355 CFMEU $51,000 x 4 x 75% = $153,000 $51,000 x 4 x 75% = $153,000 $51,000 x 4 x 75% = $153,000 $51,000 x 4 x 75% = $153,000 $51,000 x 9 x 75% = $344,250 $51,000 $1,007,250 CFMEU NSW $51,000 x 4 x 40% = $81,600 $51,000 x 4 x 40% = $81,600 $51,000 x 4 x 40% = $81,600 $51,000 x 4 x 40% = $81,600 $51,000 x 9 x 40% = $183,600 $510,000 Mr Parker $9,200 $9,200 $9,000 $9,000 $9,000 $45,400 Mr Kera $8,250 $8,250 $8,250 $8,250 $8,250 $41,250 Mr Reeves $7,000 $7,000 $7,500 $7,500 $7,000 $5,000 $41,000 Mr Collier $8,000 $8,000 $8,200 $8,200 $8,000 $40,400 Mr Michael Greenfield $3,000 $3,000 Mr Darren Greenfield $5,000 $5,000 Mr Sloane $5,500 $5,500 Mr Taylor $4,500 $4,500 Mr Auimatagi $3,000 $3,000 Overall total: $1,706,300 PUBLICATION ORDER GROUNDS
Appeal ground 19 (on publication orders) – asserted error in finding that s 545 of the Act was a source of power to make a publication order in relation to the nine individual appellants and the Unions
Notice of contention ground 4 (related to appeal ground 19) – whether if s 545 of the Act was not a sufficient source of power to make the publication order, s 23 of the Federal Court of Australia Act 1976 (Cth) did provide such power
Ground 19 of the amended notice of appeal states:
The primary judge erred in finding at [78] and [79] of Parker (No 2) that s 545 of the FW Act gave a source of power to make a publication order.
Ground 4 of the Commissioner’s notice of contention states:
The primary judge’s findings at paragraphs [78] and [79] of the 13 September 2017 judgment that the Court had power to make the publication orders should be affirmed on the ground that if section 545(1) did not provide that power, section 23 of the Federal Court of Australia Act 1976 (Cth) did provide such power.
The primary judge expressly said of the publication order that his Honour made that it was intended to serve the purpose of deterrence and, perhaps incidentally, a separate educative purpose in relation to members of the CFMEU, the public and the building industry more generally: see penalty judgment at [81]. A little earlier in his Honour’s penalty reasons (at [79]), his Honour identified the source of the power to make the order as being s 545 of the Act and, if necessary, s 23 of the Federal Court of Australia Act 1976 (Cth).
The appellants focus on his Honour’s primary reliance on s 545, and the decision of the High Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 (Section 545 Powers Case) at [23], to argue that the provision is not directed to the subject of penalties, and at [25] of that decision, to argue that the terms of s 545(2) were directed to preventing contraventions or addressing or remedying the effects of a contravention, including compensation. The appellants also rely upon the Chief Justice’s additional (minority) conclusion that s 545 was not directed to deterrence, agreeing that it only supported the making of preventative, remedial or compensatory orders. The appellants therefore assert that there was no power to make the order and that it should therefore be set aside.
The Commissioner necessarily accepts the limitation imposed by the High Court on the operation of s 545 in the Section 545 Powers Case, but seeks to sidestep it in two ways. The first is to characterise the prevention of contraventions as being, in substance, the same as deterrence. The Commissioner submits that the limitation imposed on s 545 was a denial by the High Court that the power is available for the imposition of penalties, but that a publication order is not penal. The Commissioner submits that the objective that the primary judge had in mind was “protective deterrence”.
The second sidestep by the Commissioner is a reliance on the alternative source of power in s 23 of the Federal Court of Australia Act, either because that was adverted to by the primary judge, or by reason of ground of contention 4. The appellants contest the availability of s 23 as a source of power, but do not adequately explain why the broad scope of that power cannot be brought to bear so as to make a publication order. The terms of s 23, whilst not at large, are substantially unfettered in relation to matters in which this Court has jurisdiction, as the Court thinks appropriate. In those circumstances, it is sufficient to source the power to make the publication order in s 23, and therefore to dismiss this ground of appeal based on the Commissioner’s notice of contention. In those circumstances it is neither necessary, nor desirable, to decide whether s 545 would have remained a sufficient source of power, not least because the reasons for making the order would need to be recast by reference to the objectives approved of by the High Court of being preventative or perhaps remedial orders.
Appeal ground 20 (on publication orders) – asserted error in basis for making publication order in relation to the nine individual appellants and the Unions
Appeal ground 22 (on publication orders) – asserted error in making a publication order in relation to the nine individual appellants and the Unions so long after the events
Ground 20 of the amended notice of appeal states:
The primary judge erred in finding at [75] and [76] of Parker (No 2) that the purpose of better informing members of the CFMEU as to how the fees paid by its members were being expended was a basis for the making of a publication order.
Ground 22 of the amended notice of appeal states:
The primary judge erred in the exercise of his discretion in making a publication order so long after the event. There was no utility in making the orders at such a late stage and any such orders would only serve as instruments of embarrassment in circumstances where the conduct was not continuing and where the publication did not rectify the contravention: see Construction, Forestry, Mining and Energy Union v Hadgkiss [2009] FCAFC 17 (26 February 2009), 174 FCR 237 at [104], [105], [159].
These grounds are advanced upon the alternative basis that even if there was power to make the publication order, there was either no proper basis for making it, or the events to which it would relate were by then too stale as to justify the order.
The appellants’ first objection via ground 20 is an assertion that the reasons given by the primary judge were not relevant considerations in the sense of being appropriate to take into account, without going so far as to assert that they are irrelevant in the sense of being, as matter of statutory construction, forbidden. The stated secondary basis for making the orders was in truth the primary basis, being that of a separate educative purpose in relation to members of the CFMEU, the public and the building industry more generally. It was only through that pathway that the stated primary purpose of deterrence was able to be advanced; there was no stand-alone basis upon which the orders could deter.
Even with the wide powers available under s 23, due and primary regard should be had to the specific legislation giving rise to the seeking of the order in the first place. That is not to fetter the breadth of the power in s 23, but rather to appropriately confine and restrain its exercise. Section 23, even though available as a source of power, should not lightly be used to bypass the limitation of the specific statutory power available. That is not to say that the wider power should never be used in that way, but rather that to do so requires proper justification, especially in light of the High Court’s decision in the Section 545 Powers Case. Reasons need to be given to bypass specific limitations of that kind. Of course, the primary judge cannot be criticised for failing to consider a limitation which did not exist until described by the High Court, at least not in those terms.
Given that the ground has shifted in such an important way, with the benefit of the Section 545 Powers Case it may be seen that the exercise of the power has miscarried. The order should be set aside. In those circumstances it is not necessary to consider the alternative utility argument raised by ground 22, cast in terms of the circumstances that existed at the time that the primary judge made the order. Rather, it can be considered in the context of the fresh exercise of discretion.
The appellants’ argument, recast in terms of the fresh exercise of discretion, asserts that there is no utility in making the publication order now, with the events having occurred so many years ago. Against that, the Commissioner’s at least implicit argument is that the conduct of the CFMEU has continued, and numerous decisions of this Court have indicated that penalties alone, even very severe penalties, have not been effective in having a readily measurable effect. On the Commissioner’s argument, while the conduct may now be stale, the penalties that will have to be paid as a result of that conduct will occur in the immediate future, and thus be fresh and not stale. Given that the reasons of this Court are publically and easily available, the members of the CFMEU who are interested will have no difficulty in obtaining a copy and can be as well-informed as any publication order will achieve. In those circumstances, it is difficult to see what real or substantial additional deterrent value the publication order would provide beyond the fact of the penalties being imposed and being required to be paid. This is quite unlike a case in which a regulator is concerned to ensure that members of the public who might otherwise never chance upon a particular decision of this Court of potential importance to them in their capacity as, for example, consumers of goods or services the subject of the decision, orders and declarations made are informed of the existence and content of the case.
The appellants have succeeded in having the publication order set aside. While such an order may be appropriate in a future case in which either s 545 is squarely sought to be engaged with the limitations properly addressed, or a sound basis for going beyond s 545 and exercising the wider power under s 23 is made out, no such sufficient basis has been put before the Court. Accordingly, no replacement publication order should be made.
Appeal ground 21 (on publication orders) – asserted error in finding there was a sufficient evidentiary basis for making the publication order and in drafting that order in relation to the nine individual appellants and the Unions
Ground 21 of the amended notice of appeal states:
The primary judge erred in rejecting the submissions that there was not a sufficient evidentiary basis for the making of the order. The primary judge erred when drafting the publication order:
(i)in finding that Kera abused ABCC inspectors;
(ii)in finding that Parker, Kera and Michael Greenfield continued to urge workers to take unlawful industrial action on 25 July;
(iii)in repeating the other errors set out in this notice of appeal at Grounds 1 - 18.
This ground is concerned with factual errors in the publication orders, certain of those errors being accepted by the Commissioner. This is not a matter that would independently warrant the orders being set aside, as opposed to varied. This ground should be dismissed.
CONCLUSION
The parties are to furnish agreed or competing draft orders to give effect to these reasons within 14 days.
I certify that the preceding three hundred and eighty-two (382) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko and Bromwich. Associate:
Dated: 4 April 2019
REASONS FOR JUDGMENT
REEVES J:
I have had the advantage of reading the reasons for judgment of Besanko and Bromwich JJ. I am in agreement with their Honours’ reasons and the conclusions they have reached. I wish only to add two observations with respect to the penalty orders they have proposed.
First, none of the appellants’ grounds of appeal on liability sought to challenge the primary judge’s finding that the conduct of the individual appellants attributed to the two union appellants under s 793 of the Act did not result in them being liable for each of the contraventions concerned. Secondly, while the appellants’ grounds of appeal on penalty did raise course of conduct and totality arguments in respect of the penalties imposed as between the individual appellants and the two union appellants (grounds of appeal 9 and 17), they did not argue that any distinction should be drawn between the various contraventions for which the union appellants were held liable, based on differences in the nature of the conduct of the individual appellants which conduct was attributed to those two appellants.
In the absence of these arguments being advanced, I also agree with the penalty orders proposed by their Honours.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 4 April 2019
SCHEDULE OF PARTIES
NSD 2227 of 2017 Appellants
Fourth Appellant:
[There is no fourth appellant]
Fifth Appellant:
MICHAEL GREENFIELD
Sixth Appellant:
LUKE COLLIER
Seventh Appellant:
DARREN GREENFIELD
Eighth Appellant:
ANTHONY SLOANE
Ninth Appellant:
DARREN TAYLOR
Tenth Appellant:
RICHARD AUIMATAGI
Eleventh Appellant:
CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION
Twelfth Appellant:
CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION (NEW SOUTH WALES BRANCH)
Cross-Respondents
Fourth Cross-Respondent:
[There is no fourth Cross-Respondent]
Fifth Cross-Respondent:
MICHAEL GREENFIELD
Sixth Cross-Respondent:
LUKE COLLIER
Seventh Cross-Respondent:
DARREN GREENFIELD
Eighth Cross-Respondent:
ANTHONY SLOANE
Ninth Cross-Respondent:
DARREN TAYLOR
Tenth Cross-Respondent:
RICHARD AUIMATAGI
Eleventh Cross-Respondent:
CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION
Twelfth Cross-Respondent:
CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION (NEW SOUTH WALES BRANCH)
- AGLC
- Parker v Australian Building and Construction Commissioner [2019] FCAFC 56
- Case
- [2019] FCAFC 56
- Decision Date
CaseChat Overview and Summary
The court examined whether the primary judge erred in finding that the conduct of the appellants constituted industrial action and whether there was sufficient evidence to conclude that the appellants intended to coerce. The court also reviewed the primary judge's findings on the necessity for the appellants to engage in a dispute resolution procedure. The appeal on liability grounds was dismissed, but the cross-appeal was upheld in part regarding the clarity of pleadings on accessorial liability and the presumption in s 361. The court found that the primary judge erred in rejecting the contention of a single course of conduct and in the imposition of penalties. The penalties were deemed excessive when not considering the commonality and overlap of the conduct attributed to the Unions.
In conclusion, the court reduced the penalties on CFMEU to 75% of the maximum amount and on CFMEU NSW to 40% of the maximum amount. The publication order was set aside as it was not appropriate to make a replacement order in the circumstances. The parties were instructed to provide agreed or competing draft orders within 14 days to give effect to these reasons.
Orders
Orders of the court
1. The parties provide, by email to the chambers of Justices Besanko, Reeves and Bromwich, agreed or competing draft orders to give effect to these reasons within 14 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.