Radisich v Molina and Ors (No.3)
[2012] FMCA 419
•25 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RADISICH v MOLINA & ORS (No.3) | [2012] FMCA 419 |
| INDUSTRIAL LAW – Civil penalty proceedings – false or misleading statements about membership – principles and considerations relevant to penalty. |
| Evidence Act 1995 (Cth), s.38 Workplace Relations Act 1996 (Cth), ss.3(j), 289P(2), 298SC(c), 778, 779, 789(1)(a) and (2), 790, 807(1)(a) |
| A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8 Draffin v Construction, Forestry, Mining and Energy Union (2009) 189 IR 145; [2009] FCAFC 120 Fair Work Ombudsman v Industrial Roadpavers (WA) Pty Ltd (2010) 194 IR 436; [2010] FMCA 204 Workplace Ombudsman v Golden Maple Pty Ltd (2009) 186 IR 211; [2009] FMCA 664 |
| R Allen, Allen’s Dictionary of English Phrases (London: Penguin, 2006) |
| Applicant: | JEFFREY JOSEPH RADISICH |
| First Respondent: | WALTER VINICIO MOLINA |
| Second Respondent: | CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS |
| Third Respondent: | CONSTRUCTION, FORESTRY, MINING & ENERGY UNION |
| File Number: | PEG 125 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 11 May 2011 |
| Date of Last Submission: | 11 May 2011 |
| Delivered at: | Perth |
| Delivered on: | 25 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr R L Hooker |
| Solicitors for the Applicant: | Lavan Legal |
| Counsel for the First Respondent: | Mr G MacLean |
| Solicitor for the First Respondent: | Mr G MacLean |
| Counsel for the Second and Third Respondents: | Mr J Nicholas |
| Solicitor for the Second and Third Respondents: | Mr J Nicholas, CFMEU |
ORDER
In relation to the declaration of contravention on 11 February 2011:
(a)the first respondent pay a penalty of $660;
(b)the second respondent pay a penalty of $3960; and
(c)the third respondent pay a penalty of $4620.
The penalties in order (1) be paid to the Commonwealth Consolidated Revenue Fund by 22 June 2012.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 125 of 2009
| JEFFREY JOSEPH RADISICH |
Applicant
And
| WALTER VINICIO MOLINA |
First Respondent
| CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS |
Second Respondent
| CONSTRUCTION, FORESTRY, MINING & ENERGY UNION |
Third Respondent
REASONS FOR JUDGMENT
Introduction
In Radisich v Molina & Ors (No. 2)[1] each of the three respondents, Walter Vinicio Molina, the Construction, Forestry, Mining & Energy Union of Workers,[2] and the Construction, Forestry, Mining & Energy Union,[3]were found to have contravened the now repealed s.790(1)(a) of the Workplace Relations Act 1996 (Cth).[4]
[1] [2011] FMCA 66 (“Molina (No. 2)”).
[2] “CFMEUW”.
[3] “CFMEU”. Generally in these Reasons for Judgment “the Union” is used to describe both the CFMEUW and CFMEU, unless differentiation is otherwise required.
[4] “WR Act”.
The applicant, Jeffrey Joseph Radisich,[5] seeks declarations under s.807(1)(c) of the WR Act and the imposition of pecuniary penalties under s.807(1)(a) of the WR Act, in relation to the contravention by Mr Molina and the Union.
Penalty – general principles and considerations
[5] “Mr Radisich”.
General principles concerning penalty
The federal courts have regard to general principles which have been developed in relation to the imposition of penalties in workplace relations matters, including the following:
a)fundamentally, the penalty must be proportionate to the gravity of the contravening conduct;[6]
[6] Attorney-General v Tichy (1982) 30 SASR 84 at 92 per Wells J; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2011] FCA 810 at para.25 per Gilmour J (“ABCC”).
b)penalties are imposed for the following purposes:
i)punishment, proportionate to the offence and according to prevailing standards;
ii)personal or specific deterrence, assessing the risk of reoffending, and general deterrence, as a deterrent to others who might be likely to offend; and
iii)rehabilitation;[7]
c)the sentencing task is one of instinctive synthesis in which the court takes account of all relevant factors and arrives at a single result taking due account of all of those relevant factors;[8]
d)proportionality and consistency are a final check on the penalty assessed;[9]
e)courts may identify a range of factors appropriate to the assessment of penalty, but ought to be wary of the use of check lists which “give rise to the risk of transforming the process of instinctive synthesis into the application of a rigid catalogue of matters for attention”;[10] and
f)courts ought also be wary of comparing penalties from other cases when assessing the amount of penalty to be fixed.[11]
[7] Ponzio v B & P Caelli Constructions Pty Ltd and Ors (2007) 158 FCR 543 at 559-560 per Lander J; [2007] FCAFC 65 at para.93 per Lander J (“Caelli Constructions”); ABCC at para.26 per Gilmour J.
[8] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at 567-568 per Gray J and 572 per Graham J; [2008] FCAFC 8 at para.27 per Gray J and para.55 per Graham J (“Australian Ophthalmic Supplies”); Wong v The Queen (2001) 207 CLR 584 at 611-612 per Gaudron, Gummow and Hayne JJ; [2001] HCA 64 at paras.74-76 per Gaudron, Gummow and Hayne JJ; ABCC at para.27 per Gilmour J.
[9] Australian Ophthalmic Supplies FCR at 572 per Graham J; FCAFC at para.54 per Graham J; ABCC at para.28 per Gilmour J.
[10] ABCC at para.30 per Gilmour J; Australian Ophthalmic Supplies FCR at 579-580 per Buchanan J; FCAFC at paras.89-91 per Buchanan J.
[11] NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 295 per Burchett and Kiefel JJ; ABCC at para.31 per Gilmour J.
General considerations relevant to assessment of penalty
Considerations which may be taken into account in assessment of penalty are well established and have been consistently applied by this Court,[12] but are not fixed or immutable.[13] Broadly, the relevant factors can be listed as follows:
[12] Examples include: Mason v Harrington Corporation Pty Ltd [2007] FMCA 7; Olsen v Sterling Crown Pty Ltd (2008) 177 IR 337; [2008] FMCA 1392 (“Sterling Crown); Construction, Forestry, Mining and Energy Unionv Austral Bricks (Qld) Pty Ltd (2009) 178 IR 470; [2009] FMCA 143; Workplace Ombudsman vGolden Maple Pty Ltd (2009) 186 IR 211; [2009] FMCA 664 (“Golden Maple”); Fair Work Ombudsman v Industrial Roadpavers (WA) Pty Ltd (2010) 194 IR 436; [2010] FMCA 204 (“Industrial Roadpavers”).
[13] Australian Ophthalmic Supplies FCR at 580 per Buchanan J; FCAFC at para.91 per Buchanan J; Golden Maple IR at 224 per Lucev FM; FMCA at para.11 per Lucev FM.
a)the nature and extent of the conduct which led to the contraventions;
b)the circumstances of the conduct (including deliberate defiance or disregard of Commonwealth workplace relations legislation);
c)the consequences of the contravening conduct;
d)the objects of Commonwealth workplace relations legislation;
e)whether the contraventions are distinct or arise from a single course of conduct;
f)deterrence, both general and specific;
g)relevant record of civil penalty contraventions;
h)the size and financial resources of the contravener;
i)co-operation with regulatory authorities (if any);
j)the contravener's contrition (if any);
k)the size of the prescribed penalty, and any recent increases to that prescription; and
l)the totality principle.
A number of the factors are relevant to the present matters and are therefore considered below.
Nature and extent of conduct
Mr Radisich’s submissions
Mr Radisich submits that:
a)the starting point for the considerations of pecuniary penalties is the nature and extent of the conduct constituting the contraventions. A number of findings of fact made in Molina (No. 2) on the evidence led at trial are relevant;
b)on the morning of 19 March 2008, Mr Molina:
i)was on a site known as the Coles-Myer Regional Distribution Center at Horrie Miller Drive, Perth Airport,[14] wearing CFMEU emblazoned clothes;[15]
[14] “the Site”.
[15] Citing Molina (No. 2) at para.28 per Lucev FM. The Court did not find that Mr Molina’s clothes were “emblazoned”, but rather that Mr Molina was “wearing a shirt and jacket each of which bore logos of the CFMEU”: Molina (No. 2) at para.28 per Lucev FM. Inflating the Court’s findings is not likely to be helpful or persuasive.
ii)held a conversation with certain persons working for Southern Wire in the Site sheds,[16] which included Mr Andrew Bella and Mr Bradley Douthie;[17] and
[16] “Site Sheds”.
[17] “Mr Bella” and “Mr Douthie” respectively, citing Molina (No. 2) at para.31 per Lucev FM (“Site Shed Conversation”).
iii)during the course of the Site Shed Conversation, made false and misleading statements about Mr Bella and Mr Douthie’s obligation to join the Union;
c)consequently, Mr Bella rang the Site Foreman, a Mr Edwards, who was not on Site, but who told him to phone Mr Orso, the Site Manager. Mr Edwards told Mr Bella to:
Just wait there until Jason [Mr Orso] comes, and he’ll sort it out;[18]
[18] Citing Molina (No. 2) at para.36 per Lucev FM.
d)Mr Orso arrived some 45 minutes later.[19] Mr Bella asked Mr Orso if he could return to work, to which Mr Orso said he could;[20]
[19] Citing Molina (No. 2) at para.37 per Lucev FM.
[20] Citing Molina (No. 2) at para.67 per Lucev FM.
e)Mr Bella went to return to work, and Mr Molina then said words to the effect of “come back fucking here”[21] or “fucking come back I haven’t finished”;[22]
[21] Citing Molina (No. 2) at para.67 per Lucev FM.
[22] Citing Molina (No. 2) at para.65 per Lucev FM.
f)the Court:
i)considered Mr Bella a central and reliable witness, who was ‘“straightforward and honest” and was not a partial witness” which it was able to rely upon[23] in relation to the Site Shed Conversation; and
[23] Citing Molina (No. 2) at para.85 per Lucev FM.
ii)was persuaded that Mr Molina made the remarks attributed to him by Mr Bella during the Site Shed Conversation;
g)Mr Bella gave evidence to the effect that, during the Site Shed Conversation, Mr Molina made the following relevant statements:
i)the Site was a “union site”[24] and “you’ve got to join the union”;[25] and
[24] Citing Molina (No. 2) at para.33(e) per Lucev FM.
[25] Citing Molina (No. 2) at para.35 per Lucev FM.
ii)“I don’t want you to go back to work until we sort it out”;[26]
[26] Citing Molina (No. 2) at para.39 per Lucev FM.
h)in Molina (No. 2), the Court noted that Mr Douthie had a poor recollection of events, but found it significant that:
i)Mr Douthie had maintained the truth of what was said in the transcribed record of interview[27] was true; and
[27] “ROI”.
ii)Mr Douthie’s answers recorded in the ROI were consistent with Mr Bella’s evidence as to the statement made by the first respondent in respect of the Site Shed Conversation;[28]
[28] Citing Molina (No. 2) at para.46 per Lucev FM.
i)Mr Douthie’s ROI[29] records the following:[30]
49. MR WOLSONCROFT: Can you recall what he said to you with regards to joining a union on that day?
50. MR DOUTHIE: When I was there, he asked if we were with the union. We all said, “No”, and then he told us that we had to join or we weren't allowed to work on-site.
51. MR WOLSONCROFT: Can you recall the exact words that he used?
52. MR DOUTHIE: Yeah, that’s it, that’s it: “You guys need to join or you can’t work on this site”.
53. MR WOLSONCROFT: Right.
54. MR DOUTHIE: And we said, “Well, we don’t need to actually join. It’s our choice”, and he goes, “No, no, you have to join to work on this site”, and then I was just saying, “Well, you contradicted yourself there, mate. Like, you can’t make us join, but you are saying you need to join to stay on the site”, and then after I said that, he goes, “Yeah, they’re holes in your boots, mate”, and I said “Yeah”. He goes, “Well, you can’t work with these boots”, so I just stood up then and said, “Well, I’ll go and buy some more”, and went off and bought some boots and that, and that’s it, yeah.”; and
j)the conduct of Mr Molina as summarised occurred in his capacity as an officer and agent of the Union and was conduct of the Union.[31]
[29] Which was admitted into evidence under s.38 of the Evidence Act1995 (Cth): Radisich v Molina & Ors [2009] FMCA 1121.
[30] Citing Molina (No. 2) at para.44 per Lucev FM.
[31] Citing Molina (No. 2) at paras.96-97 per Lucev FM.
Mr Molina’s and the Union’s submissions
Mr Molina and the Union’s submit that:
a)the nature of the conduct in this case has its factual origin in the Site Shed Conversation between Mr Molina and workers engaged by Southern Wire during the lunch time break;
b)the Site Shed Conversation was described in Molina (No. 2) as being “made in the context of a robustly healthy but relaxed workplace debate over lunch in the Site shed”;[32]
[32] Citing Molina (No. 2) at para.92 per Lucev FM.
c)none of the witnesses gave evidence that the statements made by Mr Molina related to more than one union. None of the witness gave evidence that the statements made by Mr Molina related to the CFMEUW. Witnesses referred to ‘the union’ or ‘the CFMEU’;
d)Mr Bella, whose evidence was accepted by the Court, gave the following answer when asked what Mr Molina said in response to being told by Southern Wire workers that they did not have to join the Union if they did not want to:
Well, he agreed, but then he kept going on. “Ok. You know, you’ve got to join the union. We want you to join the union”. It was just repetitive, like.[33]
[33] Citing Transcript, page 46 line 40-43.
e)when asked about Mr Molina’s tone when he made those comments Mr. Bella stated that:
It was all nice, you know friendly. We were having a chat, we were having lunch. He was telling us the pros and cons about joining the union, the benefits and that was about it.[34]
[34] Citing Transcript, page 46 line 45-47. See also Molina (No. 2) at para.35 per Lucev FM.
f)the equivocal nature of the various representations made by Mr Molina to workers engaged by Southern Wire is relevant to assessing the context in which the contravention occurred;
g)while Mr Molina has told workers that they where required to join the Union, he has also told those workers that it was their choice whether to join the Union or not;
h)Mr Molina’s equivocation may go to show awareness that the advice given to Southern Wire workers could not have been correct, but the fact that the substance of that advice was immediately contradicted by him goes to the assessment of what effect the false and misleading statement actually had;
i)it is perhaps true to say that Mr Molina “gilded the lily”[35] in encouraging membership by stating that there was an obligation to join the Union. That is not to say that any breach of s.790 of the WR Act is not by its nature a serious matter, but in the context in which this contravention occurred it is at the lower end of the spectrum of seriousness for such a contravention;
j)there is no indication that any workers lost any time in relation to this matter or actually joined the Union on the strength of the false and misleading statements made by Mr Molina. The fact that the misleading statements were contradicted by Mr Molina is consistent with the conclusion that no worker was left with an erroneous view about their obligation to join a union;
k)there was no aggression on the part of Mr Molina when the misleading statements were made;[36]
l)while the objects of Part 16 of the WR Act are relevant to any breach of s.790 of the WR Act it would seem apparent that this particular breach does not go to the heart of some of the more serious objectives of the freedom of association provisions, particularly those relevant to protecting individual choice to join or not join industrial associations;
m)the freedom of the workers to choose to join the Union was a point actually made by Mr Molina at times during the Site Shed Conversation. Consistent with that advice at least some of the Southern Wire workers actually returned to work during the currency of the Site Shed Conversation;[37] and
n)the conduct in this case was both limited in scope and effect, and that is directly relevant to the assessment of the seriousness of the conduct. It is submitted that this is a less serious contravention than other cases involving similar conduct.
[35] Citing Cruse v Construction, Forestry, Mining and Energy Union (No. 2) [2008] FCA 1637 at para.2 per Marshall J (“Cruse (No.2)”). The use of the phrase may be a malapropism in this context, given that it means “to try to improve or embellish something that is already beautiful”, as in its early use as “To gild refined gold, to paint the lily” in Shakespeare’s King John: see R Allen, Allen’s Dictionary of English Phrases (London: Penguin, 2006) page 313.
[36] Citing Molina (No. 2) at para.88 per Lucev FM.
[37] Citing Molina (No. 2) at para.92 per Lucev FM.
Consideration
The nature and extent of the conduct of Mr Molina, and by extension, of the Union, is very limited. The false and misleading statement:
a)occurred on one occasion, that is at lunch in the Site Sheds;
b)was made to a limited number of people;
c)had no practical effect in terms of persons joining the Union;
d)was devoid of aggression;
e)was not part of an expletive-ridden tirade;
f)was made during a relaxed but nevertheless robust lunchtime workplace debate at the Site Sheds; and
g)was made in conjunction with other statements that workers had a choice as to whether to join the Union or not.[38]
[38] Molina (No. 2) at paras.87-92 per Lucev FM.
As was made clear in Molina (No. 2) the “Come back fucking here” exchange, referred to in Mr Radisich’s submission was no more than a “mere angry outburst” and “one unremarkable on a building site”.[39]
[39] Molina (No. 2) at para.93 per Lucev FM.
This was conduct the nature and extent of which was at the lower end of the spectrum of conduct which might be expected in the making of a false and misleading statement in a workplace relations context, particularly in the building and construction industry.
Circumstances in which the conduct took place
Mr Radisich’s submissions
Mr Radisich submits that:
a)the practice on the Site was to prefer but not to require union membership.[40] Those circumstances are relevant to the Court’s assessment of the conduct in that Mr Molina was imposing, in contravention of s.790 of the WR Act, his own requirement over and above the Site requirements; and
b)Mr Molina did so in a capacity representing the Union. The Union is obliged to obey the law, and not be a party to the making of false or misleading statements about worker’s obligations to become members of the Union.
[40] Citing Molina (No. 2) at para.91 per Lucev FM.
Mr Molina and the Union’s submissions
Mr Molina and the Union submit that:
a)the false and misleading statements made by Mr Molina were made as part of a recruitment pitch to Southern Wire workers;
b)it is apparent from the evidence of site supervisor Mr Orso that there was a preference on the Site for union membership, but no requirement for union membership as that was against the law;[41]
c)Mr Molina was clear in his evidence that he intended to recruit the Southern Wire workers into the Union. Being able to properly represent these workers in relation to payment issues and health and safety issues was at least part of the motivation behind this recruitment effort. The diary note of Mr Sivewright records that these issues were pressed by Mr Molina on the day;
d)the evidence of Mr Bella confirms that there was an apparent safety issue concerning the condition of one of the Southern Wire worker’s boots,[42] and that Mr Molina was pressing the issue of Union membership so that the Union could sort out payment issues with the employer;[43] and
e)there is no suggestion that Mr Molina did not have an actual belief that joining the Union would be of benefit to the workers.
[41] Citing Molina (No. 2) at para.92 per Lucev FM. The reference should be to para.91.
[42] Citing Transcript, page 48 at line 30.
[43] Citing Transcript, page 50 at line 20-25.
Consideration
The circumstances in which the conduct took place are in part dealt with above.[44] It is clear that Mr Molina was, in the course of his conduct, trying to sell the benefits of membership of the Union. That however, does not excuse the making of false and misleading statements in relation to whether or not workers were required to be members of the Union. That is particularly so when the false and misleading statements came from a person whom it was not disputed was an experienced official of the Union, and who was on Site on behalf of the Union. Nevertheless, the conduct is still in the lower range of the spectrum of conduct in relation to such a contravention.
The nature and extent of any loss or damage sustained as a result of the contraventions
[44] See paras.8-10 above.
Mr Radisich’s submissions
Mr Radisich submits that no monetary or other tangible loss resulted from the contravening conduct, but that nonetheless, the making of statements of this character which contravene s.790(1)(a) of the WR Act gives rise to a very real form of intangible damage where participants in the building and construction industry are told things which are false or misleading about their rights to freedom of association. In this circumstance, the legislative objectives which underpinned Part 16 of the WR Act may be undermined.
The Union and Mr Molina’s submissions
The Union and Mr Molina:
a)agree with Mr Radisich’s submissions insofar as the false and misleading statements did not cause any material damage to any party; and
b)submit that:
i)the making of the false and misleading statements did not persuade anyone to the truth of what was asserted, and
ii)given that the statement itself was contradicted by Mr Molina immediately upon having been made it is not accepted that any intangible damage was caused by the statements.
Consideration
There is no tangible loss or damage in this case.
Intangible damage can arise from damage to the utility and effectiveness of the relevant statutory objective.[45]
[45] Secretary, Department of Health and Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at para.56 per Flick J; Sterling Crown IR at 233 per Lucev FM; FMCA at para.54 per Lucev FM; Industrial Roadpavers IR at 446 per Lucev FM; FMCA at para.28 per Lucev FM.
The statutory objectives relevant to this contravention are:
Ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association.[46]
and
[46] WR Act, s.3(j).
In addition to the object set out in section 3, this Part has the following objects:
(a) to ensure that employers, employees and independent contractors are free to become, or not become, members of industrial associations;
(b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations;
(c) to provide effective relief to employers, employees and independent contractors who are prevented or inhibited from exercising their rights to freedom of association;
(d) to provide effective remedies to penalise and deter persons who engage in conduct which prevents or inhibits employers, employees or independent contractors from exercising their rights to freedom of association.[47]
[47] WR Act, s.778.
In this case:
a)the false and misleading statements were followed by other statements which indicated that the workers had a right to choose whether to be Union members or not;
b)at least some of the workers to whom the false and misleading statements were made:
i)were already Union members;[48] and
ii)knew that they had a choice as to whether to join the Union or not, and were prepared to challenge and debate Mr Molina’s assertions;
c)Mr Molina’s false and misleading statements and robust arguments were ineffective as none of the workers not already in the Union were moved to join the Union; and
d)overall, no person was ultimately prevented or hindered from exercising their rights to freedom of association.
[48] It would appear that at least two of the workers were already Union members: Molina (No. 2) at para.92 per Lucev FM.
In the above circumstances there is minimal, if any, damage to the statutory objectives set out above.
Whether there has been similar previous conduct by a respondent
Mr Radisich submits that:
a)prior contraventions of a similar nature are relevant.[49] Similar previous conduct may demonstrate:
[49] Citing Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 at 389-390 per Le Miere J; [2006] WASC 317 at para.67 per Le Miere J (“Leighton Contractors”); Cruse (No. 2) at para.9 per Marshall J; Silvestri v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at para.13 per Gyles J.
i)a history of engaging in the particular conduct in question;
ii)the penalties previously imposed were insufficient to deter further such conduct; and
iii)that there has been a failure to take adequate steps to prevent further contraventions;[50]
[50] Citing Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61 at 70 per Tracey J; [2008] FCA 1426 at para.44 per Tracey J (“Stuart-Mahoney”). See also Temple v Powell (2008) 169 FCR 169 at 188 per Dowsett J; [2008] FCA 714 at para.64 per Dowsett J (“Temple”).
b)the effect of prior contravening conduct is more cogent if it has been the subject of conviction or findings of statutory contravention. If not, the prior conduct is still relevant but may carry less weight;[51]
[51] Citing Williams v Construction, Forestry, Mining and Energy Union (No. 2) (2009) 182 IR 327 at 338-340 per Jessup J; [2009] FCA 548 at para.26-28 per Jessup J (“Williams (No. 2)”).
c)whether previous misconduct is relevant to fixing a penalty is a question of logic,[52] and conduct of a different character does not assist;[53]
[52] Citing Temple FCR at 188 per Dowsett J; FCA at para.63 per Dowsett J.
[53] Citing Leighton Contractors IR at 389-390 per Le Miere J; WASC at para.67 per Le Miere J; Stuart-Mahoney IR at 70 per Tracey J; FCA at para.44 per Tracey J.
d)prior relevant conduct in this context includes prior relevant conduct of a similar nature or character by officials from other branches of the Union;[54]
e)there is no evidence of previous similar contraventions by Mr Molina or the CFMEUW;
f)there have been numerous findings involving unlawful behaviour by officials related to the CFMEU;
g)“Table A” (which was attached to Mr Radisich’s submissions) identifies the prior relevant conduct to be taken into account. The entries in Table A may include:
i)contraventions of freedom of association provisions;
ii)matters in which the conduct occurred, and contraventions have been recorded, prior to the conduct the subject of this proceeding; and
iii)conduct under the WR Act;
and is relevant as it illustrates that the CFMEU has not been effective in ensuring that its officials act in accordance with the law.[55]
[54] Citing Williams (No. 2) IR 336-338 per Jessup J; FCA at paras.19-25 per Jessup J.
[55] Citing A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at para.13 per Gyles J.
The Union and Mr Molina’s submissions
The Union and Mr Molina submit that:
a)they generally agree with the propositions set out Mr Radisich’s submissions at paragraph 21(a) above;
b)to those general propositions ought to be added the following:
i)only conduct preceding that in question is taken into account in fixing penalties;[56]
[56] Citing Temple FCR at 187-188 per Dowsett J; FCA at para.62 per Dowsett J.
ii)past conduct cannot operate so as to increase the penalty beyond that which would be appropriate to the conduct in question;[57]
[57] Citing Temple FCR at 188 per Dowsett J; FCA at para.63 per Dowsett J.
iii)contraventions within a different branch of the Union are relevant, but are to be given less weight than contraventions within the branch in question;[58] and
[58] Citing Draffin v Construction, Forestry, Mining and Energy Union (2009) 189 IR 145 at 154-155 per Goldberg, Jacobson and Tracey JJ; [2009] FCAFC 120 at para.72 per Goldberg, Jacobson and Tracey JJ.
iv)although similar conduct which has been found to contravene other legislative provisions may have potential relevance, conduct which is of a different character does not assist the penalty assessment;[59]
[59] Citing Stuart-Mahoney IR at 70 per Tracey J; FCA at para.44 per Tracey J.
c)when considering the use to be made of schedules of so-called “relevant prior records” of respondents, the Supreme Court of Western Australia in Leighton Contractors adopted the approach of the Court in Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No. 2)[60] when the Supreme Court said:
[60] (1999) 94 IR 231 at 232 per Branson J; [1999] FCA 1714 per Branson J (“Coal & Allied Operations (No. 2)”).
“It is not appropriate to consider all contraventions of any industrial legislation by any branch of the second respondent anywhere in Australia. The first defendant is a very large organization that operates throughout Australia. Branches, Divisions, officers and representatives of the first defendant are involved with employers in relation to industrial matters every day. It is inappropriate to take account of conduct of the first defendant through various branches, divisions & officers or representatives that is of a different character than the contravening conduct in question and are contraventions of different legislation.”[61]
[61] Citing Leighton Contractors IR at 389-390 per Le Miere J; WASC at para.67 per Le Miere J.
d)in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No. 2)[62] the Federal Court adopted a cautious approach similar to that outlined in Coal & Allied Operations (No. 2) in assessing the weight to be attached to a table containing summaries of prior cases when it said:
[62] (2010) 199 IR 373; [2010] FCA 977 (“ABCC (No. 2)”).
“Overall, while it seems to me that it is appropriate that I should regard the information submitted in Table A and Table B by the ABC Commissioner I should also be mindful of the cautionary words of Branson J when doing so. Primarily, I consider the prior contraventions identified by the respondents to be the most relevant.”[63]
[63] ABCC (No. 2) IR at 386 per Barker J; FCA at para.66 per Barker J.
e)Mr Molina and the Union have no relevant prior conduct occurring in Western Australia;
f)the CFMEU has limited relevant prior conduct occurring in different states, and Table A does not constitute an accurate summary of the CFMEU’s relevant prior similar conduct;
g)cases involving a penalty assessment for a breach of s.298SC(c) of the pre-reform WR Act can be of only limited assistance in determining an appropriate penalty for a breach of s.790 of the WR Act;
h)while it is accepted that the elements of these two offences are similar the legislative contextual differences between the two mean that the penalty considerations for each are fundamentally different;
i)the pre-reform WR Act contained no general prohibition against coercion in relation to union membership the equivalent of s.789 of the WR Act;
j)the pre-reform WR Act prohibited coercion where it appeared in association with the use or threatened use of industrial action;[64]
[64] See s.289P(2) of the pre reform WR Act.
k)section 298SC(c) of the pre-reform WR Act and cases such as Hadgkiss v Construction, Forestry, Mining and Energy Union,[65] appearing in Table A almost certainly involved a degree of coercion in relation to union membership;
l)the coercive quality of the contravening conduct in cases such as Hadgkiss could only constitute an aggravating feature of the false or misleading representation contravention, and appears to have been an important consideration in Hadgkiss;
m)as the WR Act prohibits and penalises coercion in relation to union membership separately from the prohibition against false or misleading statements in relation to a person’s obligation to join a union, that coercive behaviour cannot also constitute an aggravating feature of a false or misleading statement offence;
n)in order to avoid double jeopardy under the WR Act, coercion of this type can only be dealt with by reference to s.789, and not also as an aggravating feature of a s.790 contravention;
o)the difference in the type of considerations which go to a penalty assessment in relation to a breach of s.298SC(c) of the pre-reform WR Act and s.790 of the WR Act inevitably reduces the weight that can be placed upon earlier assessments based on different legislation particularly where coercion was a factor in the earlier penalty decision;
p)the CFMEU has one relevant prior penalty for a breach of s.790 of the WR Act unaccompanied by other offences. However details of the contravening conduct occurring in this case are difficult to locate. The CFMEU was fined $6,000.00 and the personal respondent was fined $1,000.00 for the single contravention of s.790 of the WR Act;[66]
q)the guidance provided by cases concerning prior contravening behavior which is penalised along with other offences is somewhat obscured particularly were the fine is a combined penalty incorporating punishment for a number of separate contraventions. Many of the cases recorded on the applicant’s Table A document involve numerous false or misleading statement contraventions as well as contraventions of different provisions which are penalised by way of a single fine;
r)these cases are distinguishable from the present proceedings which involve a single contravention only;
s)prior conduct which involves coercion or discrimination is not relevant prior conduct for the purpose of calculating a penalty in relation to a false or misleading statement case; and
t)it is accepted that penalties imposed on other branches of the CFMEU across Australia may have relevance in showing the prevailing range of penalties, being careful to distinguish those cases from the manner in which they have been summarised by Mr Radisich in this case.[67]
[65] (2007) 162 IR 385; [2007] FCA 524 (“Hadgkiss”).
[66] Strangely, the case, in this Court, cited at case summary 9 of Table A appears on neither the Court’s nor any of the publicly available databases.
[67] The respondents rely on Schedule A to their submissions which are responsive to Table A.
Consideration
There is no dispute that Mr Molina and the CFMEUW have no record of relevant prior contraventions of Commonwealth workplace relations laws. It is therefore appropriate to treat them as first time contraveners, which would ordinarily entitle them to some discount on penalty.
In relation to prior conduct the Federal Court has adopted the following principles:
61 Barker J in Australian Building & Construction Commissioner v Construction Forestry Mining & Energy Union (No 2) (City Square) (2010) 199 IR 373 summarised at [47] the agreed applicable principles in that case. These are discussed as follows:
(a) Similar prior contraventions may be taken into account in assessing penalty, but cannot be given such weight as to lead to the imposition of a penalty that is disproportionate to the gravity of the instant contravention. To do so would be to impose a fresh penalty for past contraventions: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.
(b) However, similar previous contraventions may demonstrate that a respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions. Previous contraventions may demonstrate that the respondent has manifested in the commission of the latest contravention a continuing attitude of disobedience of the law. In such a case, "retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted": Veen (No 2) at 477.
(c) A sentencing court looks to the general record of conduct of the offender, his attitude to the law as disclosed by such conduct, apparent attempts at rehabilitation and similar considerations. Repeated conduct of a particular kind may lead to an identified need to provide some particularly persuasive form of deterrent against similar future conduct: Temple v Powell (2008) 169 FCR 169 at [64].
(d) A respondent is not to be punished again for the prior conduct. Prior conduct may diminish leniency by reason of good character, having an upward effect on penalty, albeit within the proper limits indicated by the circumstances of the immediately contravening conduct: R v McInerney (1986) 42 SASR 111 at 113.
(e) The effect of prior contravening conduct is more cogent if it has been the subject of conviction. If not, the prior conduct is still relevant but perhaps of less weight: McInerney at 113.
(f) Whether previous misconduct by branches in other states of a national organisation is relevant to fixing a penalty is a question of logic. In some cases, a pattern of conduct across the country may suggest a national culture of misconduct: Temple v Powell at [63].
(g) The quality of the conduct and its relevance to the industrial behaviour which the instant legislation seeks to address is determinative, not whether the prior conduct arose under different legislation or different provisions of the instant legislation: Stuart-Mahoney v CFMEU at [44] to [46].
(h) Prior relevant conduct includes that of officials from other branches of the union: Williams v Construction, Forestry, Mining and Energy Union (No 2) (2009) 182 IR 327 at [19]-[25]. However, Barker J in City Square at [48] accepted that contraventions in other branches of the CFMEU, while relevant, are to be given less weight than contraventions within the branch in question.[68]
[68] ABCC at para.61 per Gilmour J.
With respect to the CFMEU it is fair to observe that there have been prior contraventions, and some conduct which, although not necessarily conduct in contravention of s.790 of the FW Act, has certain elements of a not dissimilar nature.
The CFMEU’s conduct is the conduct of Mr Molina. And, when properly analysed, the false and misleading statements made by Mr Molina, although contrary to the law, arose in a robust lunchtime discussion, without aggression or acrimony.
Although the CFMEU is not therefore a first-time contravener:
a)other relevant contraventions are more serious, and often significantly so, than this low level contravention; and
b)this is a case of an agent of the CFMEU (Mr Molina was an employed organiser and officer of the CFMEUW) who simply got carried away in the course of the Site Shed Conversation, and as a consequence made the false and misleading statements.
In all these circumstances the penalty to be imposed on the CFMEU ought reflect the fact that, although not a first-time contravener, this was a contravention involving a low level contravention.
No continuing course of conduct
Mr Molina and the Union’s submissions
As is evident from the Court’s consideration of whether there has been similar previous conduct by Mr Molina and the Union, and as was submitted by Mr Molina and the Union, the contravention arose out of a single episode over the course of a lunch time break rather than a continuing course of conduct occurring over a period of time.
Deliberateness of the contravention
Mr Radisich’s submissions
Mr Radisich submits that:
a)the Court was not persuaded by Mr Molina’s denials that he had made the false and misleading statements;[69]
[69] Citing Molina (No. 2) at para.90 per Lucev FM.
b)the Court observed that:
i)Mr Molina attempted to tie his “Come fucking back here” statement to issues of underpayments,[70] and that this was a recognition of the fact that that statement might otherwise lend itself to the contraventions;[71] and
[70] Citing Molina (No. 2) at para.72 per Lucev FM.
[71] Citing Molina (No. 2) at para.90 per Lucev FM.
ii)there were subtle indications in Mr Molina’s evidence to the effect that he was likely to have made the false and misleading statements, including his comments that:
a) those who were not Union members were “freeloaders”;
b) we [the Union] expect everybody to sign up with the union; and
c) people should exercise their right to join the organisation by actually joining.[72]
[72] Citing Molina (No. 2) at para.90 per Lucev FM.
c)it is open to the Court in exercising broad sentencing discretion to infer that Mr Molina knew that, by making false and misleading statements, his conduct contravened the WR Act by drawing relevant inferences from findings as to Mr Molina’s state of mind;
d)Mr Molina confirmed that:
i)he received instructions from the Secretary of the Union, Mr. Kevin Reynolds;[73] and
[73] “Union Secretary”. Although Mr Reynolds was not the Secretary of the CFMEU nationally, it is convenient to describe him as Union Secretary for the purposes of these Reasons for Judgment.
ii)that his job was to encourage people to join the Union and to recruit new members, “but we’ve always been instructed to abide the legislation.”[74] It can be inferred from this statement that Mr Molina, in his capacity as an official of the Union, was expected to, or believed he was expected to, know and understand the WR Act; and
[74] Citing Molina (No. 2) at para.95 per Lucev FM.
e)it can be inferred from all of the evidence led that Mr Molina knew that he was contravening the WR Act by making false or misleading statements deliberately. By way of illustration, the Court has accepted the following account given by Mr Bella as to how the Site Shed Conversation occurred:
a) Mr Molina said that he was from the Union and wanted to know who was in the Union or not;
b) Mr Bella said he wasn’t in the Union;
c) Mr Molina responded that there was a problem and “we’ve got to sort it out”;
d) Mr Bella responded that he had said that he was happy and that he did not want to join the Union, and that he had “every right to join or not to join, so I’m happy not to join”;
e) Mr Molina responded by saying “Well, there’s a problem, we’ve got to sort it out, do you know what I mean? It’s a union site”;
f) Mr Bella did not recall whether Mr Molina said anything on the subject of union membership;
g) Mr Bella then rang Mr Sivewright and told him that Mr Molina was on Site, and “is trying to make us join the union to work on this site”; and
h) Mr Sivewright “reassured us” that he had spoken to “his own lawyer” and that “we do not have to join the union. Like, we’ve got every right to and it’s our decision.”
As illustrated by this passage, Mr Bella told Mr Molina that he had a “right” to decide whether or not he wished to join the union. Mr Molina does not deny this, but still persists in asserting that there is a “problem”, being the fact that the Site is a “Union Site”.
Mr Molina and the Union’s submissions
Mr Molina and the Union submit that:
a)the findings made in Molina (No. 2) reject Mr Molina’s evidence that the false and misleading statements simply were not made. The findings are consistent with the false and misleading statements having been deliberately made;
b)there is no suggestion that the statements were made as part of any ongoing deliberate strategy;
c)the statements seem to have been delivered in a chaotic manner and were accompanied by other statements which asserted the right of individual workers to choose to join or not join the Union;
d)the chaotic and contradictory nature of Mr Molina’s address to the Southern Wire workers is consistent with the false and misleading statements having been made in an impromptu, opportunistic manner with no prior planning; and
e)this does not excuse Mr Molina’s behavior but rather puts it in its context.
Consideration
Mr Molina’s false and misleading statements were no doubt deliberate in the sense that he intended to make them at the time that they were made. However, they were not part of a deliberate design or pre-planned intended course of deliberate conduct. To the extent that the statements were deliberate their effect was negligible in the long term, and significantly ameliorated in the short term by other statements made by Mr Molina which indicated to those workers present that they did have a choice as to whether or not they joined the Union. Once again, therefore, the conduct is at the lower end of the spectrum of deliberate conduct.
Involvement of senior management
The uncontradicted evidence is that:
a)no member of the senior management of the Union had any direct involvement in or knowledge of the actual making of the false and misleading statements; and
b)to the extent there was senior management “involvement”, the evidence was that the Union Secretary had previously instructed Mr Molina to obey workplace relations legislation.
Consideration
Because the involvement of senior management generally increases the seriousness with which the Court considers a contravention[76] it follows that, generally speaking, the lack of senior management involvement lessens the overall seriousness of the contravention. And so it is in this case, insofar as the contravention relates to the Union.
Contrition and corrective action
[76] Liquor, Hospitality and Miscellaneous Union v Cuddles Management Pty Ltd (No. 2) (2009) 188 IR 435 at 440 per Lucev FM; [2009] FMCA 746 at para.11 per Lucev FM.
Mr Radisich’s submissions
Mr Radisich submits that:
a)there is no evidence that Mr Molina or the Union have exhibited any contrition with respect to the breaches of s.790(1)(a) of the WR Act;
b)there can be little doubt that Mr Molina knew that his conduct contravened the WR Act. For example:
i)Mr Molina gave no evidence asserting any misunderstanding as to whether his conduct contravened the WR Act, but rather merely denied the conduct occurred;
ii)Mr Molina made other statements that the Southern Wire workers had a choice as to whether or not they joined the Union,[77] and if he had been ignorant of the law, those comments would not have been made; and
iii)the Union Secretary had instructed Mr Molina to abide by the WR Act;
c)while Mr Molina’s conduct is not shown to have been guided, or otherwise influenced in any way by other Union officials, it was nevertheless conduct engaged in by him as a representative of the Union; and
d)there is no evidence that Mr Molina and the Union have taken any corrective action with a view to preventing repetition of the contravening conduct.
[77] Citing Molina (No. 2) at para.92 per Lucev FM.
Mr Molina and the Union’s submissions
Mr Molina and the Union admit that there is no evidence of:
a)contrition by them; or
b)any corrective action taken by them,
in the wake of the liability finding in Molina (No. 2).
The Union submitted that, in light of the direction by the Union Secretary to Mr Molina prior to the contravention that he must comply with workplace relations legislation, there was “no need … for any further specific training or further direction to Mr Molina.”[78]
[78] Penalty Hearing Transcript, page 22.
Consideration
The lack of evidence from Mr Molina and the Union as to contrition and corrective action was a striking and significant feature of this case. For a contravention of this nature, arising in the circumstances that it did, it is remarkable that:
a)neither Mr Molina nor the Union were able to express any contrition whatsoever; and
b)the Union said that there was “no need” for further corrective action.
A lack of contrition or corrective action does not increase the appropriate penalty. However, contrition, properly and appropriately expressed, and proper and appropriate corrective action, will usually result in some reduction in penalty.[79]
[79] Golden Maple IR at 238 per Lucev FM; FMCA at paras.82-84 per Lucev FM (expressions of regret and apology by director of respondents entitling them to a discount on penalty); Workplace Ombudsman v SRS Investments (WA) Pty Ltd (2009) 191 IR 426 at 442 per Lucev FM; [2009] FMCA 1132 at para.91 per Lucev FM (no contrition and therefore no reduction in penalty).
To suggest, as the Union did, that there was no need for corrective action because the Union Secretary had prior to the contravention told Mr Molina to comply with workplace relations legislation rather misses the point. Mr Molina had not complied with:
a)section 790 (1)(a) of the WR Act with respect to the making of false and misleading statements about membership of an industrial association; or
b)the Union Secretary’s directive concerning compliance with the workplace relations legislation.
It is one thing to employ a person to do a task, or instruct an agent to do a task; it is another to ensure that it is done properly. The responsibility for ensuring that it is done properly falls on the employer or the principal, in this case, the Union. Contrition may be evidenced by providing information to key personnel and by providing them with relevant training to prevent a similar contravention from occurring in the future.[80] In the circumstances, it might have been expected that there would have been some form of corrective action taken by the Union, be it:
a)reinforcement of, or a further direction from, the Union Secretary to Mr Molina (and perhaps to other Union employees and agents) in relation to:
i)the making of false and misleading statements in relation to membership of an industrial association; or
ii)the necessity to comply with Commonwealth workplace relations legislation;
b)further education in relation to the duties and responsibilities of Union employees and agents in relation to the matters set out in sub-paragraph (a) above; and
c)possibly, low level disciplinary action against Mr Molina.
[80] Williams v Macmahon Mining Services Pty Ltd(No. 3) (2010) 195 IR 161 at 175 per Lucev FM; [2010] FMCA 49 at paras.50-51 per Lucev FM.
Had Mr Molina expressed contrition, and had the Union (either through the Union Secretary or another senior officer of the Union), filed an affidavit indicating contrition on the part of the Union, and that some form of corrective action was being taken in relation to the finding of liability, that might have had a significant effect on the assessment of penalty by the Court. As it is, there can be no reduction of penalty on account of contrition or corrective action by either Mr Molina or the Union, because there is none.
A lack of contrition and corrective action also impacts upon the issue of deterrence, which is discussed further below.
Deterrence
Mr Radisich’s submissions
Mr Radisich submits that:
a)deterrence is a primary objective of statutory penalties, and the weight given to this object is enhanced by the express inclusion of deterrence in s.778(d) of the WR Act;
b)by Mr Molina’s own evidence, the Union “expect everybody to sign up with the union”[81] and he had received instructions from the Union Secretary that his job was to encourage people to join the Union.[82] This evidence suggests that Mr Molina will need to be deterred from continuing to express himself in false and misleading terms as he carries out his duties for the Union;
c)Mr Molina and the Union:
i)admitted Mr Molina was acting, at the relevant time, within the scope of his actual or approved authority; and
ii)denied that Mr Molina’s alleged conduct occurred,[83]
and, therefore, there is an important interest in the Union being specifically deterred from repeating their contravening conduct;[84]
d)general deterrence requires a penalty that serves as a meaningful general deterrent to others who may be disposed to engage in the conduct in question;[85] and
e)given the nature of the contravening conduct which has been engaged in by Mr Molina and the Union it is important that a signal be sent, through the imposition of significant penalties, that such contraventions will not be tolerated.
[81] Citing Molina (No. 2) at para.90 per Lucev FM.
[82] Citing Molina (No. 2) at para.95 per Lucev FM.
[83] Citing Molina (No. 2) at para.23 per Lucev FM.
[84] Citing Molina (No. 2) at para.23 per Lucev FM.
[85] Citing Stuart-Mahoney IR at 72-73 per Tracey J; FCA at para.58 per Tracey J, citing Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd(No. 2) [2007] FCA 11 at para.66 per Young J (“Loy Yang (No. 2”); Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at 479 per Merkel J; [2005] FCA 1847 at para.41 per Merkel J (“Finance Sector Union”); and Australian Competition and Consumer Commission v ABB Transmission & Distribution Limited [2001] ATPR 41-815 per Finkelstein J; [2001] FCA 383 at para.13 per Finkelstein J.
Mr Molina and the Union’s submissions
Mr Molina and the Union submit that:
a)the fact that Mr Molina and the CFMEUW have no relevant prior contraventions militates against an argument that there is a strong need for specific deterrence;
b)the fact that the prior relevant contravening conduct of the CFMEU has occurred through its interstate branches and not in Western Australia reduces the need for specific deterrence;
c)Mr Molina’s contravening behaviour was an aberration committed rashly in a robust lunchtime debate;
d)the only evidence in relation to the Union’s direct involvement in the contravention was that the Union Secretary had directed Mr Molina to obey the legislation when recruiting new members;
e)as Mr Radisich contends that Mr Molina should be taken to have known that his actions contravened workplace laws it is difficult to argue that Union has somehow failed to educate Mr Molina about the relevant legislative provisions or his obligation to obey them;
f)Mr Molina was acting in his capacity as an officer or agent of the Union when trying to recruit new Union members;
g)the Union’s admission of this fact cannot amount to an acceptance that whatever conduct Mr Molina is ultimately found to have engaged in, no matter how contrary that behaviour was to what the Union understood it to be, must be seen as having been authorised by the Union. There is no basis to believe that the Union knew about the contravening behaviour let alone actually authorised it. The Union is liable for Mr Molina’s conduct on the basis of the deeming provisions contained at s.779(2) of the WR Act, not on the basis that the conduct was expressly authorised by the Union.
h)in the same way that illegality of conduct does not of itself place the actions of an agent outside the scope of the actual or apparent authority of a principal the Union here is liable for the contravening conduct of Mr Molina;
i)the participation of the Union in the contravening conduct is solely through the actions of Mr Molina as an officer or agent, and not because of any authorisation to perform the contravening act; and
j)the Union is responsible for the actions of its paid employees and agents, but accepting responsibility for behaviour is quite different to having authorised that behaviour. It would be a significant aggravating factor if the Union had actually authorised the contravening conduct. Absence of authorisation and knowledge of the contravening behaviour on the part of the Union supports the argument that the behaviour of the Union was at the lower end of the scale; and
k)as to the Union’s denial of the conduct alleged against Mr Molina, they could hardly be expected to admit something that was denied by him. Such denial does not weigh against the Union in relation to penalty.
Consideration
A primary objective of penalties is deterrence.[86] Therefore, in imposing civil penalties, deterrence is a significant consideration.[87] It is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend.[88] Therefore a penalty must be of a kind that demonstrates an appropriate assessment of the seriousness of the offending conduct.[89]
[86] Kelly v Fitzpatrick (2007) 166 IR 14 at 21 per Tracey J; [2007] FCA 1080 at para.28 per Tracey J (“Fitzpatrick”); Leighton Contractors IR at 391 per Le Miere J; WASC 317 at para.74 per Le Miere J; Sterling Crown IR at 351 per Lucev FM; FMCA at para.53 per Lucev FM.
[87] Caelli Constructions FCR at 577 per Jessup J; FCAFC at para.164 per Jessup J.
[88] Caelli Constructions FCR at 559 per Lander J; FCAFC at para.93 per Lander J, citing Yardley v Betts (1979) 22 SASR 108; Fitzpatrick IR at 21 per Tracey J; FCA at para.28 per Tracey J.
[89] Caelli Constructions FCR at 559 per Lander J; FCAFC at para.93 per Lander J.
Civil penalties imposed in industrial law proceedings must be meaningful and consistent in light of other considerations to be taken into account when determining appropriate penalty.[90]
[90] Loy Yang (No. 2) at para.66 per Young J; Sterling Crown IR at 351 per Lucev FM; FMCA at para.54 per Lucev FM.
There is a need for general deterrence in determining penalty in this case, it being a case in which the penalty to be imposed ought to reflect disapproval of the conduct in question, and act as a general warning to others, both within and without the building and construction industry, not to engage in similar conduct.[91]
[91] Fitzpatrick IR at 21 per Tracey J; FCA at para.28 per Tracey J; CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 at 231 per Finkelstein J; [2001] FCA 1364 at para.9 per Finkelstein J.
Whether or not there is a need for specific deterrence in this case is a matter which, with respect to Mr Molina, has troubled the Court. Ultimately, with respect to Mr Molina the Court does not accept that there is a need for specific deterrence. Whilst Mr Molina has not expressed contrition, his statements were, as the Court has already found, statements made in the course of a non-aggressive, non-acrimonious but robust lunchtime debate during the course of which he has simply gone too far with the statements that he made. In those circumstances, the Court is not persuaded, on this occasion, that specific deterrence is needed in relation to Mr Molina.
The position is different with respect to the Union. The Union has not only not expressed contrition, it has also not taken any corrective action. Corrective action was peculiarly within the Union’s capacity to implement, and it has failed to do so. Moreover, the Union’s submission at the penalty hearing that there was no need for corrective action compounds the Union’s failure. Furthermore, the fact that the contravention has occurred, albeit in the circumstances that it did, but that the Union has not taken, and sees no need for, corrective action, manifests an attitude indicative of a lack of concern about ongoing disobedience to workplace relations legislation.[92] In addition, the CFMEU does have prior contraventions, one of which relates specifically to the making of false and misleading statements under s.790 of the WR Act, and others which contain elements of similar behaviour.
[92] Williams (No. 2) IR at 333-334 and 335 per Jessup J; FCA at paras.13 and 16 per Jessup J.
The assessment of penalty in relation to the CFMEUW and CFMEU must therefore contain some element of specific deterrence. Because of the CFMEU’s prior record the element of specific deterrence for the CFMEU must be greater than that for the CFMEUW.
Appropriate penalty
Maximum penalty
The maximum penalty for:
a)Mr Molina is $6600; and
b)for each of the CFMEUW and CFMEU is $33000.
Mr Radisich’s submissions
Mr Radisich submits that having regard to all of the above matters, and especially the deliberateness of the conduct and the need for specific deterrence, the appropriate penalty for the contravention is in the range of:
a)40% to 60% of the prescribed maximum for Mr Molina (or $2,640 - $3,960); and
b)in light of prior relevant conduct, 50% to 70% of the prescribed maximum for each of the CFMEUW and the CFMEU (or $16,500 - $23,100).
Mr Molina’s submission
Mr Molina submits that:
a)the penalty proposed by the applicant of $2,640 - $3,960 (40% to 60% of the maximum) is excessive and inappropriate because:
i)the circumstances of this case are distinguishable from other false or misleading statement cases in that this case involves one isolated breach, caused no damage, and the false and misleading statements were contradicted by Mr Molina;
ii)Mr Molina has no relevant prior similar conduct; and
iii)it is higher than the range of prevailing penalties imposed in relation to a single contravention, the cases indicating a range from recording a declaration of contravention without the imposition of a penalty to $1,000;
b)the appropriate penalty having regard to the circumstances of this case and comparable cases is a disposition within the range described above. Consideration can also be given to suspending any fine actually imposed for a particular period of time.
The Union’s submissions
The Union submits that:
a)the penalty proposed by Mr Radisich of $16,500 to $23,100 (between 50% to 70% of the maximum) is excessive and inappropriate because:
i)it fails to draw a distinction between the second and third respondents’ past relevant contraventions;
ii)of the lack of evidence of any knowledge or involvement by any senior management of Union; and
iii)of the lack of evidence that any of the witnesses that Mr Molina referred to the CFMEUW in any of his statements or that any of the witnesses had the impression that Mr Molina was making any representation as to the CFMEUW;
b)the appropriate penalty for the CFMEU having regard to the circumstances of this case and comparable cases is a fine at the lower end of the scale, the range being between $3,000 to $6,000; and
c)the appropriate penalty for the CFMEUW having regard to the circumstances of this case, lack of prior contraventions and comparable cases is at the lower end of the scale, the range being from recording a declaration of contravention without the imposition of a penalty to a fine of $6,000.00.
Consideration
The Court is cognisant of the emphasis placed on greater penalties for contravention of industrial laws over the past few years,[93] but proportionality remains a key aspect of setting penalty for a contravention.[94] The penalty in this case must ultimately reflect the Court’s assessment of the circumstances related to the factors set out above.
[93] Finance Sector Union ALR at 487 per Merkel J; FCA at para.72 per Merkel J; Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 at 364 per Branson J; [2007] FCAFC 18 at para.192 per Branson J; Sterling Crown IR at 346 and 358 per Lucev FM; FMCA at paras.31-33 and 82-83 per Lucev FM.
[94] Williams (No. 2) IR at 333 per Jessup J; FCA at para.13 per Jessup J.
Overall, and particularly having regard to the nature and extent of the conduct, the circumstances in which it took place and the loss or damage sustained, the Court considers this to be conduct at the lower end of the spectrum of contraventions which might arise in relation to freedom of association. As such the contravention ought, in the Court’s view, to attract a penalty in the range of 10% to 15% of the maximum penalty.
Considering all of the factors, and having regard to all of the circumstances, the Court concludes that:
a)a penalty of 10% of the maximum is appropriate for Mr Molina, particularly as he is a first-time contravener in respect of whom there is no need for specific deterrence. There will therefore be a penalty of $660 imposed on Mr Molina;
b)within the range of 10% to 15% of the maximum penalty, or $3300 to $4950, it is apparent that because it is not a first-time contravener, and because of the need for specific deterrence, the CFMEU’s penalty ought to be towards the top end of the range of 10% to 15%, but perhaps slightly less as senior management were not involved. In that regard, the Court considers that a penalty of $4620 is appropriate; and
c)the penalty to be imposed on the CFMEUW should be less than that for the CFMEU, so as to reflect the fact that the CFMEUW is a first-time contravener, but one in respect of whom there is a need for specific deterrence. The Court considers that a penalty of $3960 is appropriate for the CFMEUW.
Totality principle
The totality principle does not require consideration in this case as it does not apply where a single penalty is imposed upon a single respondent in respect of a single contravention by that respondent.
In any event, looking at the totality of the penalties imposed in this case, they are clearly reasonable and appropriate in all of the circumstances.
Conclusion and orders
The Court has concluded that:
a)Mr Molina must pay a penalty of $660;
b)the CFMEUW must pay a penalty of $3960; and
c)the CFMEU must pay a penalty of $4620.
The above penalties must be paid to the Commonwealth Consolidated Revenue Fund by 22 June 2012.
The Court will make orders accordingly.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 25 May 2012
[75] Citing Molina (No. 2) at para.33 per Lucev FM.
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