FEDERAL COURT OF AUSTRALIA
United Group Resources Pty Ltd v Calabro (No 7) [2012] FCA 432
Citation: United Group Resources Pty Ltd v Calabro (No 7) [2012] FCA 432 Parties: UNITED GROUP RESOURCES PTY LTD ABN 17 114 888 201, AGC INDUSTRIES PTY LTD ABN 57 079 939 898, MODERN ACCESS SERVICES PTY LTD ABN 87 129 312 590, DOWNER EDI ENGINEERING POWER PTY LTD ABN 53 000 983 700, MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD ABN 52 008 861 836, CBI CONSTRUCTORS PTY LTD ABN 90 000 612 411, DECMIL AUSTRALIA PTY LTD ABN 58 116 776 991, FREO GROUP LIMITED ABN 64 009 325 124, MAMMOET AUSTRALIA PTY LTD ABN 77 075 483 644, PCH GROUP LTD ABN 41 009 120 021, RCR CONSTRUCTION & MAINTENANCE PTY LTD ABN 97 063 053 814, RCR POSITRON PTY LTD ABN 38 106 084 879 and JOHN HOLLAND PTY LTD ABN 11 004 282 268 v BRAEDEN CALABRO AND OTHERS LISTED IN THE RESPONDENTS' SCHEDULE A AS AMENDED and THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER File number: WAD 14 of 2010 Judge: MCKERRACHER J Date of judgment: 2 May 2012 Catchwords: INDUSTRIAL LAW – proceedings instituted by 13 applicants against 1,336 respondents in relation to several days of unlawful industrial action – penalty agreement ultimately reached between applicants and represented respondents - factors the Court should take into account in assessing penalty and exercising its discretion whether to adopt a penalty agreement reached between the parties
INDUSTRIAL LAW - sentencing - whether the represented and unrepresented respondents should be penalised equally – whether penalties should be suspended where an intervening industry regulator opposes suspension of penalties – whether an injunction to restrain from breaches for a seven year period should be imposed and if so, whether that should be considered in the context of penalties and suspension of them
INDUSTRIAL LAW – penalty – civil double jeopardy – whether two separate pecuniary penalties should be paid by individual respondents for multiple contraventions of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) and Fair Work Act 2009 (Cth) (FW Act) in respect of the same conduct – held that s 38(1) of the BCII Act allows the Court to impose a single penalty taking into account overall conduct of each individual respondent
COSTS – intervener – intervention of Australian Building and Construction Commissioner (ABCC) – whether ABCC entitled to recover costs from respondents who admitted contraventions of the FW Act and BCII Act – held that in light of settlement reached between the applicants and respondents, costs order in favour of the ABCC would be punitive and undermine settlement reached, contrary to the objectives of industrial legislation and Federal Court Act 1976 (Cth) s 37M and s 37N
Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 49(1), 71
Fair Work Act 2009 (Cth) ss 417(3), 421(3), 556
Federal Court of Australia Act 1976 (Cth) s 23Cases cited: Attorney-General (Ex rel Meat and Allied Trades Federation of Australia) v Beck [1980] 2 NSWLR 77
Attorney-General v Tichy (1982) 30 SASR 84
Australian Building and Construction Commissioner v Abbott (No 4) [2011] FCA 950
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2007] FCA 1546
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2010] FCA 977
Australian Competition and Consumer Commission (ACCC) v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169
Australian Competition and Consumer Commission (ACCC) v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2)[2007] FCA 11
Australian Competition and Consumer Commission (ACCC) v Rural Press Ltd (2001) ATPR 41-833
Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976
Australian Federation of Air Pilots v Skywest Airlines Pty Ltd (1996) 70 IR 284
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Australian Securities and Investments Commission v Mauer-Swisse Securities Ltd (2002) 42 ACSR 605
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
CBI Construction Pty Ltd v Abbott [2008] FCA 1629
City of Burnside v Attorney-General South Australia (1994) 63 SASR 65
Dean and Chapter of Chester v Smelting Corporation Limited (1901) 85 LT 67
Gordon (1994) 71 A Crim R 549
Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 147 IR 462
Hadgkiss v Aldin (2007) 164 FCR 394
Hardwick v Australian Manufacturing Workers' Union (2010) 198 IR 312Johnston v Cameron [2002] FCAFC 301
Johnson v R (2004) 78 ALJR 616
Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634
Liverpool City Council v Weir (1984) 58 ALJR 213
Lowe v R (1984) 154 CLR 606
Mallina Holdings Ltd v Biala Pty Ltd & TS Holdings Pty Ltd (unreported, Federal Court of Australia, Carr J, 4 February 1997)
McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29
McDonald v R (1994) 48 FCR 555
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72Motor Trade Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878
O’Keeffe Nominees Pty Ltd v BP Australia Limited (No 2) (1995) 55 FCR 591
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Postiglione v R (1997) 189 CLR 295
R v McInerney (1986) 42 SASR 111Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Stuart v LU Simon Builders Pty Ltd [2009] FCA 107
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61
Temple v Powell (2008) 169 FCR 169
Trade Practices Commission v TNT Australia Pty Ltd (Express Freight case) (1995) ATPR 41-375
United Group Resources Pty Ltd v Calabro (No 2) (2010) 192 IR 160
United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408
United Group Resources Pty Ltd v Calabro (No 6) [2012] FCA 431
Varley v Varley [2006] NSWSC 1025
Veen v R (No 2) (1988) 164 CLR 465
White v Construction Forestry Mining and Energy Union [2011] FCA 192
Woodside Burrup Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FCA 949
Wotherspoon v Construction Forestry Mining and Energy Union [2010] FCA 111Date of hearing: 13 December 2011 Date of last submissions: 30 January 2012 Place: Perth Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 103 Counsel for the Applicants: S Wood SC with T Saunders Solicitor for the Applicants: Freehills Counsel for the CEPU and CFMEU Respondents: J Fiocco Counsel for the AMWU Respondents: RL Hooker Counsel for the Seventy-Second Respondent: The Seventy-Second Respondent appeared in person Solicitor for the Respondents: As listed in the attached Respondents’ schedule ‘A’ as amended Counsel for the Intervener: IM Neil SC Solicitor for the Intervener: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 14 of 2010
BETWEEN: UNITED GROUP RESOURCES PTY LTD ABN 17 114 888 201
First ApplicantAGC INDUSTRIES PTY LTD ABN 57 079 939 898
Second ApplicantMODERN ACCESS SERVICES PTY LTD ABN 87 129 312 590
Third ApplicantDOWNER EDI ENGINEERING POWER PTY LTD ABN 53 000 983 700
Fourth ApplicantMONADELPHOUS ENGINEERING ASSOCIATES PTY LTD ABN 52 008 861 836
Fifth ApplicantCBI CONSTRUCTORS PTY LTD ABN 90 000 612 411
Sixth ApplicantDECMIL AUSTRALIA PTY LTD ABN 58 116 776 991
Seventh ApplicantFREO GROUP LIMITED ABN 64 009 325 124
Eighth ApplicantMAMMOET AUSTRALIA PTY LTD ABN 77 075 483 644
Ninth ApplicantPCH GROUP LTD ABN 41 009 120 021
Tenth ApplicantRCR CONSTRUCTION & MAINTENANCE PTY LTD ABN 97 063 053 814
Eleventh ApplicantRCR POSITRON PTY LTD ABN 38 106 084 879
Twelfth ApplicantJOHN HOLLAND PTY LTD ABN 11 004 282 268
Thirteenth ApplicantAND: BRAEDEN CALABRO AND OTHERS LISTED IN THE RESPONDENTS' SCHEDULE A AS AMENDED
RespondentAND: THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Intervener
JUDGE:
MCKERRACHER J
DATE OF ORDER:
2 MAY 2012
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.A suspended daily penalty of $1,300 be imposed on each respondent in respect of each day he or she contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) and s 417 and s 421 of the Fair Work Act 2009 (Cth) (FW Act).
2.A suspended daily penalty of $1,200 be imposed on each respondent in respect of each day he or she contravened s 38 of the BCII Act and s 421 of the FW Act.
3.A suspended daily penalty of $1,100 be imposed on each respondent in respect of each day he or she contravened s 38 of the BCII Act and s 417 of the FW Act.
4.A suspended daily penalty of $1,000 be imposed on each respondent in respect of each day he or she contravened s 38 of the BCII Act only.
5.A suspended daily penalty of $300 for respondents 817 and 825 in respect of each day they contravened both s 417 and s 421 of the FW Act but not s 38 of the BCII Act.
6.The penalties specified in orders 1, 2, 3, 4 and 5 above become immediately payable by a respondent in the event that he or she is found by a court to have contravened the BCII Act or the FW Act in respect of any conduct by that respondent at any time within seven years from the date on which these orders are made.
7.In the event that any penalties become payable in accordance with order 6 above, they be paid to the intervener.
8.Each respondent be restrained for a period of seven years from the date of these orders from doing any of the following whenever he or she is employed or otherwise engaged by any of the applicants:
(a)engaging in or being a party to or in any way associated with or otherwise involved in any of the following actions in relation to building work on the Pluto LNG Project, the North West Shelf Project or the Browse LNG Project including construction and operations, and any future expansions of those projects (Projects):
(i)failing or refusing to attend work on the Projects or failing or refusing to accept or perform work on the Projects at all;
(ii)performing work on the Projects otherwise than in accordance with the terms of his or her employment contract;
(iii)performing work on the Projects in a manner different from that in which it is customarily performed, or adopting any practice in relation to work on the Projects, the result of which is a restriction or limitation on, or a delay in, the performance of that work;
except where such actions:
(i)are authorised or agreed to by the respondent’s employer; or
(ii)are based upon the respondent’s reasonable concern about an imminent risk to the respondent’s health or safety and the respondent has not unreasonably failed to comply with the directions of the respondent’s employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the respondent to perform;
(b)interfering with or in any way disrupting the performance of work on the Projects by any of the following means:
(i)imposing, maintaining or aiding, abetting, encouraging, directing, procuring, inducing, advising or otherwise being involved in any bans, limitations, restrictions or delays on the performance of work or the acceptance of work by any of the applicants’ other employees to be performed under their terms of employment or in a manner which work is customarily performed with the applicants; and
(ii)imposing, maintaining or aiding, abetting, encouraging, directing, procuring, inducing, advising or otherwise being involved in the taking of days off by any of the applicants’ other employees otherwise than in accordance with rosters specified by the industrial instruments and employment contracts regulating their employment with the applicants.
Definitions
‘the Browse LNG Project’ means the project known by that name for the development, production and processing of petroleum and includes the off-shore and on-shore components of that project. The off-shore components of that project relate to the production of petroleum from the Brecknock, Calliance and Torosa fields located approximately 425 kilometres north of Broome, Western Australia and the on-shore components of that project relate to the on-shore processing of petroleum, currently anticipated to be located at James Price Point, near Broome, Western Australia.
‘the North West Shelf Project’ means the project known by that name for the development, production and processing of petroleum and includes the off-shore and on-shore components of that project. The off-shore components of that project relate to the production of petroleum from various fields located in the region approximately 130 kilometres north west of Karratha, Western Australia and the on-shore components of that project relate to the on-shore processing of petroleum at the Karratha Gas Plant in Karratha, Western Australia.
‘the Pluto LNG Project’ means the project known by that name or by the name Pluto LNG Development Project for the development, production and processing of petroleum and includes the off-shore and on-shore components of that project. The on-shore part of that project includes the construction of a single gas processing train and ancillary facilities between Onslow and the Burrup Peninsula in Western Australia.
‘building work’ has the meaning given to it by s 5 of the BCII Act and includes maintenance and commissioning work.
9.There be no order as to costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 14 of 2010
BETWEEN: UNITED GROUP RESOURCES PTY LTD ABN 17 114 888 201
First ApplicantAGC INDUSTRIES PTY LTD ABN 57 079 939 898
Second ApplicantMODERN ACCESS SERVICES PTY LTD ABN 87 129 312 590
Third ApplicantDOWNER EDI ENGINEERING POWER PTY LTD ABN 53 000 983 700
Fourth ApplicantMONADELPHOUS ENGINEERING ASSOCIATES PTY LTD ABN 52 008 861 836
Fifth ApplicantCBI CONSTRUCTORS PTY LTD ABN 90 000 612 411
Sixth ApplicantDECMIL AUSTRALIA PTY LTD ABN 58 116 776 991
Seventh ApplicantFREO GROUP LIMITED ABN 64 009 325 124
Eighth ApplicantMAMMOET AUSTRALIA PTY LTD ABN 77 075 483 644
Ninth ApplicantPCH GROUP LTD ABN 41 009 120 021
Tenth ApplicantRCR CONSTRUCTION & MAINTENANCE PTY LTD ABN 97 063 053 814
Eleventh ApplicantRCR POSITRON PTY LTD ABN 38 106 084 879
Twelfth ApplicantJOHN HOLLAND PTY LTD ABN 11 004 282 268
Thirteenth ApplicantAND: BRAEDEN CALABRO AND OTHERS LISTED IN THE RESPONDENTS' SCHEDULE A AS AMENDED
RespondentAND: THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Intervener
JUDGE:
MCKERRACHER J
DATE:
2 MAY 2012
PLACE:
PERTH
REASONS FOR JUDGMENT
INTRODUCTION
The applicants and the respondents seek the following orders consequent upon my decisions in United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408 (United No 5) and United Group Resources Pty Ltd v Calabro (No 6) [2011] FCA 431 (United No 6). I adopt the same abbreviations as used in those judgments. The orders sought are in the following terms:
1.A suspended daily penalty of $1,000 per day be imposed on each respondent in respect of each day on which he or she contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act) (as determined by the orders made by the Court on 30 September 2011).
2.A suspended daily penalty of $300 per day be imposed on each respondent in respect of each day on which he or she contravened either or both of s 417 and s 421 of the Fair Work Act 2009 (Cth) (the FW Act) (as determined by the orders made by the Court on 30 September 2011).
3.The penalties specified in orders 1 and 2 above become immediately payable by a respondent in the event that he or she are found by a court to have contravened the BCII Act or the FW Act in respect of any conduct by them at any time within seven years from the date on which these orders are made.
4.In the event that any penalties become payable in accordance with order 7 above, they be paid to the intervener.
5.Each respondent be restrained for a period of seven years from the date of these orders from doing any of the following whenever they are employed or otherwise engaged by any of the applicants:
(a)engaging in or being a party to or in any way associated with or otherwise involved in any of the following actions in relation to building work on the Pluto LNG Project, the North West Shelf Project or the Browse LNG Project including construction and operations, and any future expansions of those projects (Projects):
(i)failing or refusing to attend work on the Projects or failing or refusing to accept or perform work on the Projects at all;
(ii)performing work on the Projects otherwise than in accordance with the terms of his or her employment contract;
(iii)performing work on the Projects in a manner different from that in which it is customarily performed, or adopting any practice in relation to work on the Projects, the result of which is a restriction or limitation on, or a delay in, the performance of that work;
except where such actions:
(i)are authorised or agreed to by the respondent’s employer; or
(ii)are based upon the respondent’s reasonable concern about an imminent risk to the respondent’s health or safety and the respondent has not unreasonably failed to comply with the directions of the respondent’s employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the respondent to perform;
(b)interfering with or in any way disrupting the performance of work on the Projects by any of the following means:
(i)imposing, maintaining or aiding, abetting, encouraging, directing, procuring, inducing, advising or otherwise being involved in any bans, limitations, restrictions or delays on the performance of work or the acceptance of work by any of the applicants’ other employees to be performed under their terms of employment or in a manner which work is customarily performed with the applicants; and
(ii)imposing, maintaining or aiding, abetting, encouraging, directing, procuring, inducing, advising or otherwise being involved in the taking of days off by any of the applicants’ other employees otherwise than in accordance with rosters specified by the industrial instruments and employment contracts regulating their employment with the applicants.
Definitions
‘the Browse LNG Project’ means the project known by that name for the development, production and processing of petroleum and includes the off-shore and on-shore components of that project. The off-shore components of that project relate to the production of petroleum from the Brecknock, Calliance and Torosa field located approximately 425 kilometres north of Broome, Western Australia and the on-shore components of that project relate to the on-shore processing of petroleum, currently anticipated to be located at James Price Point, near Broome, Western Australia.
‘the North West Shelf Project’ means the project known by that name for the development, production and processing of petroleum and includes the off-shore and on-shore components of that project. The off-shore components of that project relate to the production of petroleum from various fields located in the region approximately 130 kilometres north west of Karratha, Western Australia and the on-shore components of that project relate to the on-shore processing of petroleum at the Karratha Gas Plant in Karratha, Western Australia.
“the Pluto LNG Project’ means the project known by that name or by the name Pluto LNG Development Project for the development, production and processing of petroleum and includes the off-shore and on-shore components of that project. The on-shore part of that project includes the construction of a single gas processing train and ancillary facilities between Onslow and the Burrup Peninsula in Western Australia.
‘building work’ has the meaning given to it by s 5 of the BCII Act and includes maintenance and commissioning work.
6.Each party pay its own costs of the proceeding.
THE STRUCTURE OF THESE REASONS
These reasons deal with four issues:
(a)the first is the consideration of the approach the Court should take when such an agreement has been reached;
(b)the next is the appropriate level of penalty to fix in relation to the contraventions found in United No 5 together with the question of whether part or all of that penalty ought be suspended and, if so, on what terms including the length of time such suspension should operate. Included in this discussion is consideration of the terms of an injunction to be imposed on the respondents;
(c)the next is consideration of the approach that should be taken to an issue which has been described below as a civil double penalty provision;
(d)finally, the question whether or not the intervener should be able to recover its costs against the respondents as sought.
AN AGREEMENT IS REACHED
An agreement was reached between the applicants and the represented respondents (not the intervener (the ABCC)) and is described in United No 5 (at [26]-[34]). It is reflected in the orders sought by the applicants and the represented respondents. In short, the applicants and the represented respondents agreed to contend that a penalty should be imposed on each of the represented respondents in the amount of $1,000 per day for each day on which the represented respondents contravened the BCII Act and $300 for each day they in which they contravened the FW Act.
THE APPROPRIATE LEVEL OF PENALTY
In United No 5 I set out (at [25]) the facts and legal consequences that were agreed between the parties. Those facts are an essential part of the submission advanced for the represented respondents as to the orders that should be made in respect of penalty. The agreement was as follows:
…
The applicants and the CFMEU Respondents [defined in para 6 of this statement of agreed facts], CEPU Respondents [defined in para 7 of this statement of agreed facts] and AMWU Respondents [defined in para 8 of this statement of agreed facts] (together, the Respondents) … agree as follows:Parties
Applicants
1 During the period 22 to 30 January 2010, each applicant was:
(a)a corporation incorporated under the Corporations Act 2001 (Cth) and to which paragraph 51(xx) of the Australian Constitution applied;
(b)the employer of some of the Respondents;
(c)a “building employer” which employed “building employees” within the meaning of the [BCII Act];
(d)a building sub-contractor engaged by [WBPL] to carry out “building work” within the meaning of the BCII Act, on the project known as the “Pluto LNG Project” or “Pluto LNG Development Project” for the development, production and processing of petroleum, including the construction of a single gas processing train and ancillary facilities between Onslow and the Burrup Peninsula in Western Australia (Project); and
(e)a “building industry participant” within the meaning of the BCII Act.
Respondents
2 During the period 22 to 30 January 2010, each Respondent was:
(a)a “building employee” whose employment consisted of or included “building work” within the meaning of the BCII Act;
(b)employed by one of the applicants to undertake “building work” on the Project;
(c)employed under a Commonwealth industrial instrument, which is or was a workplace agreement pursuant to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act); [The applicable industrial instruments are set out in para 4 of this statement of agreed facts] and
(d)a “building industry participant” within the meaning of the BCII Act.
Intervener
3The intervener is the [ABCC] appointed under s.15 of the BCII Act who intervenes in the proceeding pursuant to section 71 of that Act.
Industrial context
4During the period 22 to 30 January 2010, the industrial instruments which covered and applied to the applicants and Respondents employed by them were:
(a)United Group Resources Pty Ltd Employee Collective Pluto Project Agreement 2009;
(b)AGC Industries Pty Ltd Employee Collective Pluto Project Agreement 2009;
(c)Modern Access Services Pty Ltd Employee Collective Pluto Project Agreement 2009;
(d)Downer EDI Engineering Power Pty Ltd Employee Collective Pluto Project Agreement 2009;
(e)Monadelphous Engineering Associates Pty Ltd Employee Collective Pluto Project Agreement 2009;
(f)CBI Constructors Pty Ltd Interim Transitional Employment Agreements;
(g)Decmil Australia Pty Ltd Employee Collective Pluto Project Agreement 2009;
(h)Freo Machinery Pluto Project Greenfields Agreement 2008;
(i)Mammoet Australia Pty Ltd Greenfields Agreement 2008;
(j)PCH Group Limited Employee Collective Pluto Project Agreement 2009;
(k)RCR Construction & Maintenance Pluto Project Greenfields Agreement 2008;
(l)Positron Trident Pty Ltd Pluto Project Greenfields Agreement 2009,
(together, the Industrial Instruments).
5 During the period 22 to 30 January 2010, each Respondent employed by:
(a)United Group Resources Pty Ltd (first applicant);
(b)AGC Industries Pty Ltd (second applicant);
(c)MAS Australasia Pty Ltd (third applicant);
(d)Downer EDI Engineering Power Pty Ltd (fourth applicant);
(e)Monadelphous Engineering Associates Pty Ltd (fifth applicant);
(f)Decmil Australia Pty Ltd (seventh applicant);
(g)PCH Group Ltd (tenth applicant); or
(h)RCR Power Pty Ltd (twelfth applicant),
was covered by an “enterprise agreement” for the purposes of section 417 of the [FW Act], each of which is a workplace agreement pursuant to the Transitional Act, and was within its nominal term.
Union membership
6 Each Respondent listed in:
(a)Attachment 1 was a member of the CFMEU during the whole period 23 to 30 January 2010;
(b)Attachment 2 was not a member of the CFMEU during the whole period 23 to 30 January 2010,
(together, the CFMEU Respondents).
7Each Respondent listed in Attachment 3 was a member of the CEPU during the period 27 November 2009 to 28 February 2010 (together, the CEPU Respondents).
8 Each Respondent listed in:
(a)Attachment 4 was a member of the AMWU during the period 27 November 2009 to 28 February 2010; and
(b)Attachment 5 was not a member of the AMWU during the period 27 November 2009 to 28 February 2010,
(together, the AMWU Respondents).
The Project
9The events relevant to the proceeding happened on and in relation to the on-shore component of the Project, which is situated approximately 26 km from Karratha. Exhibits A2 to A5 [which were attached to the exhibited agreement] are photographs which show the location of relevant places within and nearby the Project site.
10The majority owner, operator and manager of the Project is Woodside Burrup, a subsidiary of Woodside Energy Ltd.
11The Project involves, amongst other things, the construction of a single gas processing train and ancillary facilities to process gas from the Pluto and Xena gas fields located in the Carnarvon Basin about 190km north-west of Karratha, Western Australia.
12Work on the Project commenced in around July 2007.
13Since the commencement of work on the Project, Foster Wheeler (WA) Pty Ltd in joint venture with WorleyParsons Pty Ltd, [FWWP], has been the engineering, procurement and construction manager (EPCM) of the Project.
14The overall performance of the building work on the Project is, and since the commencement of the building work on the Project has been, supervised by [FWWP].
15Approximately 3800 workers were employed to work on the Project during the period 22 to 30 January 2010. The 3800 workers referred to in this paragraph included construction and non-construction (staff) employees of the applicants and employees of contractors who are not parties to this proceeding.
Rostering on the Project
16Whilst engaged to work on the Project, the Respondents were required to work pursuant to roster cycles of one of the following configurations:
(a)4 weeks on, 1 week off;
(b)5 weeks on, 1 week off; or
(c)6 [weeks] on, 1 week off.
17During their rostered “on-time”, the Respondents’ ordinary hours of work on the Project were usually worked Monday to Saturday on rostered shifts of 10 hours duration, either on a day shift usually commencing at either 6.00am or 6.30am and finishing at 4.30pm or 5.00pm respectively, or on a night shift usually commencing at 6.30pm and finishing at 4.30am.
Accommodation at the Project
18Many Respondents who perform work on the Project do so on a fly in/fly out basis.
19Whilst each Respondent was engaged to work on the Project, they were accommodated in one of two accommodation villages (Gap Ridge Village and Searipple Village), or in their own local accommodation near the Project.
20Gap Ridge Village is located about 20km from the project site and Searipple Village is located about 30km from the project site.
21Gap Ridge Village contains 2,100 rooms. It is owned by Woodside Burrup and is operated for Woodside Burrup by Sodexho under the management of [FWWP]. Searipple Village is privately owned and operated not by Woodside Burrup.
22Each of the Industrial Instruments contains terms to the following effect (in clause 42 and Appendix 7, clause 6):
“42. Distant Workers
Employees classified as Distant Workers as defined and International Distant Workers as defined shall be entitled to the conditions contained at Appendix 7 – Distant Work Provisions of this Agreement.”
“APPENDIX 7: DISTANT WORK PROVISIONS
(6)The Company shall have the choice of providing each Distant Worker with either suitable board and lodging or paying the Living Away from Home Allowance set out in this Appendix.”
23During the period from 22 to 30 January 2010, many of the Respondents were Distant Workers within the meaning of the Industrial Instruments.
24The Respondents who were accommodated at Gap Ridge Village in the period from 22 to 30 January 2010 did so on terms and conditions of occupancy which were effective from 17 June 2009 and which applied throughout the period 22 January 2010 to 30 January 2010.
25During the period from 22 to 30 January 2010 the Applicants paid the owner or operator of the Gap Ridge Village and the Searipple Village a daily fee for the accommodation of each of their employees in those villages.
Motelling
26Until February 2010, Gap Ridge Village accommodated construction workers in single occupancy en-suite accommodation units. These accommodation units were occupied by construction workers, including some of the Respondents, on a 'dedicated' basis i.e. over the course of their work on the Project for a particular applicant, the Respondent would occupy the same particular accommodation unit during their rostered periods of work.
27At pre-start meetings on 27 November 2009, the applicants’ representatives informed their employees (who were in attendance at those meetings), including many of the Respondents, that, with effect from 4 January 2010, Woodside intended to introduce new accommodation arrangements for employees residing at Gap Ridge Village.
28Under these new arrangements, construction workers who resided at Gap Ridge Village would no longer have use of the same accommodation unit for each period that they were rostered to work. Instead, they would be assigned a new accommodation unit each time they returned to Gap Ridge Village for a rostered period of work (“Accommodation Changes”).
December 2009 dispute
29On 1 and 2 December 2010 many of the then employees including some of the Respondents who were rostered to work failed to present for work. The absence was not authorised or agreed to by the applicants who were their relevant employers.
30On 2 December 2009, Deputy President McCarthy of [FWA] made an order under section 418 of the FW Act requiring employees of the first applicant to return to work. The order was to remain in force until 18 January 2010.
31All construction workers on the Project returned to work on 3 December 2009.
32During the period 3 December 2009 to 21 January 2010, the Respondents attended work as rostered.
33On 21 January 2010, [FWWP] delivered a letter entitled ‘Subject: Acknowledgement Forms and availability of accommodation at Gap Ridge Village’ ([FWWP] Letter) to between 150 and 400 Respondents on the Project who resided at Gap Ridge Village. The [FWWP] Letter concerned the introduction of the Accommodation Changes.
January 2010 dispute
34On 22, 23, 25, 27, 28, 29 and 30 January 2010, each Respondent failed to attend for work on one or more days on which they were rostered to work, for either the whole or part of their rostered shift.
35[The schedule to the orders now made by the Court] set out the days on which each Respondent was rostered to work and whether he or she was absent for the whole or part of their shift. Where a Respondent was absent for up to 4 hours of their rostered shift, he or she has been designated as being absent for half a day. Where a Respondent was absent for 4 hours or more of their rostered shift, he or she has been designated as being absent for a full day.
36In each case, the absence specified in [the schedule to the orders now made by the Court] was not authorised or agreed to by any of the applicants.
37Between 22 January 2010 and 30 January 2010 inclusive, there was no protected action ballot and no notice of intention to take protected industrial action by the Respondents or any relevant union in relation to the work at the Project.
38Each Respondent engaged in:
(a)industrial action within the meaning of s.19 of the FW Act; and
(b)building industrial action within the meaning of s.36(1) of the BCII Act
in respect of each day (or part thereof) on which they were absent from work as specified in [the schedule to the orders now made by the Court].
Fair Work Proceedings
39On 23 January 2010, all applicants and others except the thirteenth applicant applied to [FWA] under section 418 of the FW Act for orders that the Respondents return to work (Application).
40A copy of the Application was served on the CFMEU, the CEPU and the AMWU by email.
41A hearing was held before Commissioner Cloghan of [FWA] on 23 January 2010. The hearing was attended by representatives of the applicants, the intervener, the CFMEU, the CEPU and the AMWU.
42At the conclusion of the hearing on 23 January 2010, Commissioner Cloghan made an interim order under section 420 of the FW Act, known as the Woodside Pluto LNG Project 2009 No. 2 Order (Interim Order).
43The Interim Order was validly made, and was published on the [FWA] website on Monday 25 January 2010 at 1.40pm AWST in accordance with s.601 of the FW Act. Service of the Interim Order was effected in accordance with the requirements of the Interim Order and the FW Act.
44Following the making of the Interim Order, certain Respondents continued to fail to attend for work on one or more days on which they were rostered to work, for either the whole or part of their rostered shift as set out in paragraph 35 of this statement of agreed facts.
Federal Court proceedings
45The applicants commenced this proceeding on 27 January 2010.
46On 27 January 2010, Justice McKerracher granted an interim injunction which was expressed to operate until 5.00 pm on 5 February 2010.
47On 5 February 2010, Justice McKerracher extended the interim injunction until 5.00 pm on 18 February 2010.
48On 18 February 2010, Justice McKerracher further extended the interim injunction until final hearing and determination of the proceeding or further order.
Section 417 FW Act contravention
49 Each Respondent employed by:
(a)United Group Resources Pty Ltd (first applicant);
(b)AGC Industries Pty Ltd (second applicant);
(c)MAS Australasia Pty Ltd (third applicant);
(d)Downer EDI Engineering Power Pty Ltd (fourth applicant);
(e)Monadelphous Engineering Associates Pty Ltd (fifth applicant);
(f)Decmil Australia Pty Ltd (seventh applicant);
(g)PCH Group Ltd (tenth applicant); or
(h)RCR Power Pty Ltd (twelfth applicant)
contravened s.417 of the FW Act in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010.
Section 421 FW Act contravention
50Each Respondent (other than those Respondents referred to in Attachments 2 and 5) contravened s.421 of the FW Act in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010.
BCII Act contravention
51Each Respondent was motivated by one or more of the following purposes in respect of each day of industrial action taken by them on 22, 23, 25, 27, 28, 29 and 30 January 2010:
(a)supporting or advancing a claim against the applicants, alternatively against the applicant which was the Respondent’s employer at the time, that motelling not be introduced; or
(b)disrupting the performance of work on the Project.
52Accordingly, the industrial action taken by each Respondent on 22, 23, 25, 27, 28, 29 and 30 January 2010 was industrially-motivated action within the meaning of s.37(a) of the BCII Act.
53The industrial action taken by each Respondent on 22, 23, 25, 27, 28, 29 and 30 January 2010:
(a)related to work that was regulated by a Commonwealth industrial instrument; and
(b)adversely affected each of the applicants in their capacity as building industry participants.
54Accordingly, the industrial action taken by each Respondent on 22, 23, 25, 27, 28, 29 and 30 January 2010 was constitutionally-connected action within the meaning of s.36(1) of the BCII Act.
55By reason of the facts and matters set out in paragraph 37 above, the industrial action taken by each Respondent on 22, 23, 25, 27, 28, 29 and 30 January 2010 was not excluded action within the meaning of s.36(1) of the BCII Act.
56Each Respondent contravened s.38 of the BCII Act in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010.
57Paragraphs 1 – 37, 39 – 48 and 51 of this statement are tendered pursuant to s.191 of the Evidence Act (Cth).
58Paragraphs 38, 49 – 50 and 52 – 56 of this statement contain admissions by the Respondents, which admissions should be treated as though they were made in a points of defence filed on behalf of the relevant Respondents.
Notwithstanding the agreement of the parties to these sanctions including the nature and quantum of pecuniary penalties to be imposed, it is accepted by all parties that it is ultimately for the Court to determine what, if any, penalty should be imposed on the respondents.
Having regard to the list of factors collected by Kenny J who cited Branson, Sackville and Gyles JJ in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 (at [51]) in White v Construction Forestry Mining and Energy Union [2011] FCA 192 (at [5])) it can be seen that:
(a)it is the responsibility of the Court to determine the appropriate penalty;
(b)determining the amount of penalty is not an exact science;
(c)within a permissible range the Court to acknowledge the particular figure cannot necessarily be said to be more appropriate than another;
(d)there is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy;
(e)the view of the regulator as a specialist body is a relevant but not determinative consideration;
(f)in determining whether the proposed penalty is appropriate, the Court examines all of the circumstances of the case; and
(g)where the parties have jointly proposed a penalty it would not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure in the Court’s view is appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It would be appropriate if it is within the permissible range.
In Wotherspoon v Construction Forestry Mining and Energy Union [2010] FCA 111, Jessup J noted (at [8] and [27]) as follows:
8 The authorities make it clear that, notwithstanding the agreement of the parties to a particular proceeding, the determination of the correct penalty is a matter for the court. The court is not obliged to accept the parties’ agreement; nor is it entitled to take the easy course of doing so without deliberation. However, the authorities also show that, where the parties have agreed on a penalty, the court should give weight to that agreement, and should generally give effect to it so long as the agreed penalty falls within the appropriate range, that is, so long as it may be described as neither manifestly inadequate nor manifestly excessive. See NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285, 291 and 298; Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51]; Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543, 553 [57] and 564 565 [129]. On any view, it will be necessary for the court in a case such as the present to acquaint itself with the facts of, and surrounding, the admitted contraventions and to derive from those facts an understanding of the extent and nature of the conduct of the respondents, and of the gravity of that conduct generally. Without putting itself in this position the court will not, in my assessment, be able to carry out the task committed to it in accordance with the authorities to which I have referred.
…27 The touchstone by reference to which to approach the question whether the penalties agreed in the present case are either manifestly inadequate or manifestly excessive is that the penalties should pay “appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations.”: Australian Ophthalmic Supplies Pty Ltd v McAlary Smith (2008) 165 FCR 560, 580 [91]: Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417, 428. Although it is not the function of the court to substitute its own preferred penalties for those agreed by the parties, it is necessary for the court to come at least to a general view about the seriousness of the conduct involved in the admitted contraventions of s 38 of the BCII Act. Before doing so, I should say something about the parties’ agreement of 22 September 2008, and about the schedule of proposed penalties upon which the applicant relied.
Factors the Court may also take into account in effectively approving or ratifying the agreement include the following:
(a)the Court must be satisfied that the penalties that have been agreed are appropriate in the circumstances of the case; and
(b)the public interest in promoting a settlement of litigation (see, for example, Mobile Oil Australia (at [51]) and in the context of industrial law, White (at [5]) per Kenny J and Wotherspoon (at [8] and [27]) per Jessup J).
In addition, the attitude of the ABCC as a regulator of the industry is also a relevant consideration (Hardwick v Australian Manufacturing Workers' Union (2010) 198 IR 312 per Gordon J (at [13])). The ABCC does not contend that the level of the penalties is inadequate. Its concern is with the suspension of them. It submits, and I accept, that:
(a)significant penalties are warranted in the case of each of the represented respondents having regard to the ‘deliberate and calculated nature of the unlawful conduct’ to which they admitted, the number of employees involved it the unlawful industrial action, the extent of the losses caused by the unlawful industrial action, the objects of the BCII and the FW Acts and the need for specific and (most importantly) general deterrence. It refers to Hadgkiss v Aldin (2007) 164 FCR 394 (at [60]-[66]) per Gilmour J, amongst other cases; and
(b)the penalties on which the applicants and the represented respondents have agreed fall within the permissible range.
As to the unrepresented respondents, the ABCC submits, and I accept, that the only relevant point of distinction is that while the former admitted their contraventions of the BCII and the FW Acts, the latter did not. However, the lateness of the represented respondents’ admissions and the fact that the unrepresented respondents did not contest the evidence led by the applicants and the ABCC resulted in this point of distinction having little significance. The ABCC submits that the principle of parity should prevail indicating that a penalty in the same amount for both sets of respondents would be appropriate. I accept all these submissions.
The ABCC strongly opposes the suspension of the penalties. It points to the fact that the only case in which penalties imposed under s 49(1)(a) of the BCII Act have been suspended are Hadgkiss, referred to above and Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61 per Tracey J and Stuart v LU Simon Builders Pty Ltd [2009] FCA 107 per Marshall J. I will consider these arguments in detail below.
A contravention of industrial laws may now be regarded more seriously than has been the case in the past as noted by Merkel J in Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 147 IR 462 (at [72]). These observations were endorsed by the Full Court in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 (at [62]) per Branson and Lander JJ.
In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2010] FCA 977, Barker J noted that the task with which a sentencing judge was faced was one of ‘instinctive synthesis’ as that expression has been used on a number of occasions. His Honour’s approach was upheld by the Full Court (North, McKerracher and Jagot JJ) in McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29.
The represented respondents submit and I accept that the authorities show that a non-exhaustive range of factors may be relevant in assessing the appropriate penalty in the circumstances of a particular case and include:
1.the nature and extent of the contravening conduct;
2.the circumstances in which the conduct took place;
3.the period of the conduct;
4.the nature and extent of any loss or damage sustained as a result of the conduct;
5.whether the contraventions were distinct or arose out of the one course of conduct;
6.whether or not the breaches were deliberate;
7.whether senior management was involved in the conduct;
8.whether there has been any contrition exhibited;
9.whether the party committing the breach has taken any corrective action;
10.whether the party committing the breach has cooperated with the prosecutor;
11.whether there has been similar previous conduct by the respondent;
12.the size of the business enterprise involved; and
13.the need for general and specific deterrence.
Some caution is required in adopting a check list approach because doing so is counter intuitive to the process of ‘instinctive synthesis’: see Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 (at [91]).
The present case is unique with an unprecedented number of individual respondents the subject of enforcement proceedings for breaches of industrial laws. All of the represented respondents have made admissions as to their contravening conduct as part of a settlement with the moving parties – the applicants. Those admissions have saved significant Court time and resources. The admissions have promoted the important policy central to all modern litigation that parties be encouraged so far as possible to resolve their disputes in such a way as to minimise recourse to the adversarial system. It is argued, therefore, that considerable weight should be accorded to two central themes. The first of these is the resolution effected between the primary litigating parties and the second is the caution with which any position adopted by the intervener may be permitted to give rise to an outcome inconsistent with that resolution unless there is a compelling basis to do so.
It is contended for the represented respondents that the totality of the proposed orders warrants consideration in its entirety. In particular, the represented respondents point to the fact that the duration and nature of the permanent injunction agreed to by each represented respondent is highly significant. A period of seven years restraint covering work to be performed or potentially performed at either of the three very substantial LNG operations in Western Australia is a significant remedy. They submit that the legitimacy of a suspension of the agreed pecuniary penalties is reinforced by the terms of the proposed final injunction. A particularly compelling reason to order suspension in this case, it is argued, is that suspension will promote specific and general deterrence.
By s 545(1) of the FW Act, this Court is empowered to, if it be satisfied that a person has contravened a civil remedy provision to make any order that the Court considers appropriate. The generality of that power is not derogated from by particular examples of its exercise enumerated under s 545(2). Further, s 546(1) confers a more specific power upon an applicable court where it is satisfied that a person has contravened a civil remedy provision, to order a person to pay a pecuniary penalty that the Court considers is appropriate. Maximum penalties have been provided for in s 546(2). Those penalties qualify the general express language of s 546(1).
In the present circumstances, there is nothing, taken in context or with regard to the purpose of the FW Act, which would militate against a construction of s 545 that would exclude a power to suspend a pecuniary penalty notwithstanding the width of the language employed. If anything, the express purpose of the FW Act as enacted in s 3 and the purpose necessarily implicit in Ch 4 (namely, to enable eligible courts to enforce applicable industrial standards with outcomes that are fair and just), further reinforces that the literal meaning of s 545 is in fact the legal meaning.
It is agreed by the primary litigating parties including the ABCC, that the sanctions for imposition on the represented respondents are within a range that would have been fairly open to the Court had the question of penalty been contested. They are neither manifestly excessive nor manifestly inadequate. It is argued, and I accept, that it is in the interests of justice for the Court to endorse the primary litigating parties’ resolution by imposing sanctions consistently with the terms of the settlement reached.
The ABCC makes the point that the overriding principle is to ensure that the sentence is proportionate to the gravity of the contravening conduct: Attorney-General v Tichy (1982) 30 SASR 84 (at 92-93) per Wells J. As discussed by Lander J in Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 (at [93]-[94]), the purpose is to be served by the imposition of penalties are:
(a)punishment, which must be proportionate to the offence and in accordance with the prevailing standards;
(b)deterrence, both personal (assessing the risk of reoffending) and general (a deterrent to others might be likely to offend); and
(c)rehabilitation.
In relation to the statutory scheme, the ABCC stresses that the object of the legislation will be relevant when assessing the appropriateness of any penalty to be imposed against the respondents. In this regard, it points to s 3(1) of the BCII Act which provides that the main object of the Act:
is to provide an improved workplace relations framework for building work to ensure that such work is carried fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole.
(Woodside Burrup Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FCA 949 (at [21]-[22] per Gilmour J).
The BCII Act aims to achieve that object by the means set out in s 3(2). Those include promoting respect for the rule of law and ensuring that building industry participants are accountable for their unlawful conduct.
In the Second Reading Speech of the BCII Act it was stated that industrial action:
negatively impacts on industry productivity. Industrial unrest and time lost through work stoppages cause immediate loss to head contractors, subcontractors and employees … This Bill seeks to implement a framework where unlawful industrial action is not tolerated and those taking such action are brought to account for their lawlessness.
In assessing the gravity of the conduct, ABCC submits that regard should be had to the:
(a)obvious consequences that the unlawful industrial action would have had considering the economic significance of such a large scale resources project to the Australian economy as explained by Mr Milne in his affidavit;
(b)the seriousness of the unlawful industrial action having regard, particularly, to its unprecedented scale and the resultant disruption caused to the construction of the Project;
(c)circumstances of aggravation of the respondents’ conduct as demonstrated by their continuance of the unlawful industrial action for five days in defiance of the Fair Work order and introduction of issues during the unlawful industrial action unrelated to motelling;
(d)the prolonged period of the unlawful industrial action, being seven days from 22 to 30 January 2010;
(e)the fact that many of the respondents took action in relation to the same issues at the same Project on 1 and/or 2 December 2010;
(f)the fact that the respondents’ conduct in all instances was deliberate and in complete disregard to the objectives of the BCII Act;
(g)the fact that some of the respondents are not first time contraveners of the BCII Act;
(h)the impact that the respondents’ unlawful conduct had, not only on the operations of the employer but also on follow on trades that were subsequently delayed from performing their work as a result of the unlawful industrial action;
(i)the lack of any evidence of union or third party involvement or encouragement in the unlawful industrial action;
(j)the need for general deterrence;
(k)the need for specific deterrence; and
(l)the failure of the respondents to acknowledge their ‘guilt’. In the case of the unrepresented respondents, this is so at all and in the case of the represented respondents, it was not until the late stages of the proceeding, almost two years after the proceeding was commenced and when the hearing of the trial was about to proceed that admissions were made. Indeed, seven hearing dates were required in September 2011 resulting in the parties incurring significant costs that would not have been incurred had the respondents made the admissions as to liability at a much earlier stage.
The ABCC points to a list of issues including 11 claims made by respondent who are employees of the first, second, third, fourth and twelfth applicants on 27 and 28 January 2010.
The ABCC submits that the Court should infer from the claims included in that list of issues that one or more of those claims amounts to the advancement of claims by respondents employed by applicants to whom the list of issues were issued in respect of the employment of those respondents and the unlawful industrial action was also ‘industrially motivated’ for the purposes of s 36 of the BCII Act by the list of issues. I pause to observe that that finding has already been made. The list of issues was presented to the applicants four days before the end of the unlawful industrial action. As such, the ABCC submits that given there is no evidence that any of the applicants met the demands made by the respondents it should be inferred that a reason for the continuation of the unlawful industrial action past 27 January 2010 was the applicants’ refusal to heed the claims included in the list of issues. The framework of the BCII Act and the FW Act make it plain that it is simply unlawful to take industrial action in support of such claims prior to the nominal expiry date of the particular industrial instruments. The presentation of the list of issues was an opportunistic attempt by those respondents to make demands of their employers in circumstances where they were not entitled to do so under either the BCII Act or the FW Act. The ABCC argues that the issuing of the list of issues to certain applicants was designed to have the effect of placing additional pressure on them to accede to the demands of the respondents if they wanted unlawful industrial action to cease. In addition to their defiance of the Fair Work order, those respondents disregarded their lawful obligations to comply with the BCII Act and the FW Act by presenting that list of issues to certain of the applicants part way through the unlawful industrial action. The ABCC contends this factor ought be weighed heavily in favour of imposing an immediate penalty rather than a suspended penalty, so as to achieve the necessary objectives of general and specific deterrence.
The ABCC relies upon an affidavit of Mr Ian Douglas Fraser which refers to two episodes of prior industrial action in which some of the respondents were involved. There were approximately 735 respondents involved in one of those incidents. The first of those episodes was the industrial action that was the subject of Gilmour J’s decision in Woodside where the applicant brought proceedings against the CFMEU and Mr McDonald for their unlawful involvement in the industrial action at the Project on 1 and 2 December 2009.
The ABCC also points to the evidence of industrial action engaged in by employees of CBI Constructors Pty Ltd during construction phase five of the expansion project in a LNG gas plant that neighbours the Project between 14 and 28 October 2008 (the Phase V strike). The Phase V strike was the subject of a decision of Gilmour J in CBI Construction Pty Ltd v Abbott [2008] FCA 1629 in which the respondents contravened s 38 of the BCII Act by engaging in unlawful industrial action. Fifty-one of the respondents in the proceeding were found to have contravened s 38 of the BCII Act and s 496 of the WR Act which was the predecessor provision to s 421 of the FW Act by engaging in the Phase V strike.
It is clear, submits the ABCC, that many of the respondents have previously engaged in industrial action and at least 51 of the respondents are not first time contraveners of the BCII Act or provisions akin to s 421 of the FW Act. They should not, therefore, it is submitted, be treated as first time offenders.
Insofar as prior relevant conduct is concerned, the ABCC relies upon the judgment of Barker J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293 (the City Square Case) in which the agreed principles of prior conduct to be taken into account in assessing penalty, namely:
(a)Similar prior conduct may be taken into account in assessing penalty, but it cannot be given such weight as to lead to the imposition of a penalty that is disproportionate to the gravity of the instant contravention: Veen v R (No 2) (1988) 164 CLR 465 (at 477).
(b)Similar previous conduct 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 (at 477).
(c)A sentencing court looks to the general record of the offender, his or her attitude to the law as disclosed by such conduct, apparent attempts at retribution and similar considerations. Repeated conduct of a particular kind may lead to an indentified need to provide some particularly persuasive form of deterrent against similar future conduct: Temple v Powell (2008) 169 FCR 169 (at [64] per Dowsett J.
(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 affect 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 character 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 (at [44]-[46]).
Insofar as deterrence is concerned, the ABCC points to the large scale of the industrial action the subject of the case and the widespread publicity that it attracted. It argues that those circumstances render general deterrence and extremely important consideration in the assessment of the appropriate penalty. The general deterrence is directed to ensuring that the penalty will act as a deterrent to others who might be likely to act unlawfully. It should be of the kind that it would be likely to act as a deterrent in preventing similar contraventions by likeminded persons. If it does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the relevant provision: Gordon (1994) 71 A Crim R 549.
The ABCC submits that for the penalty to achieve the two aspects of deterrence, specific and general, ‘it must be imposed at a meaningful level consistent with the other considerations that must be taken into account in determining the appropriate level of penalty’. There is a need to show ‘the seriousness with which the Court considers such contraventions’: Australian Competition and Consumer Commission (ACCC) v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2)[2007] FCA 11 per Young J (at [66]).
Insofar as post-contravention conduct is concerned, any contrition, corrective conduct or cooperation with relevant enforcement authorities after the contravention will have relevance to penalty. Contrition may manifest itself in an expression of remorse. The ABCC submits that there is no evidence of any contrition or remorse in these proceedings.
Cooperation, on the other hand, can be exhibited in a range of ways such as agreement on facts or agreement on penalty. The timing of any such agreement and the impact it has on the conduct of the trial and witnesses who would have been called at trial are relevant: Stuart-Mahoney (at [52]).
It is in this context that the ABCC stresses the lateness of the agreement reached. From this it follows that there should be a very limited discount to the respondents for their admissions and no discount for the unrepresented respondents who have at all times avoided the Court’s processes and failed to respond to the proceeding.
Moreover, the ABCC submits that the respondents’ conduct in the case forms part of a course of conduct for the purposes of s 36(3)(b) of the BCII Act. This amounts to each respondent having committed one act of unlawful industrial action in contravention of s 38 of the BCII Act, for which the maximum penalty is $22,000 and one contravention of s 421 of the FW Act for which the maximum penalty is $6,600: Hadgkiss v Aldin (at [76]).
Insofar as the totality principle is concerned, as a final check on the appropriateness of the penalties to be imposed, it is necessary to see whether the overall penalty is just and appropriate in the circumstances. The penalty which is fixed must be appropriate for each individual contravention and then as a check at the end of the process, it must be determined whether the aggregate is appropriate for the total contravening conduct: McDonald v R (1994) 48 FCR 555 (at 556). The aggregate of penalty imposed must not be ‘oppressive or crushing’: Stuart-Mahoney (at [60]). Impecuniosity of any respondent has not been raised as an issue in the proceeding and should not, therefore, be taken into account in the assessment of penalty, according to the ABCC.
The ABCC contends that the application of the totality principle is compulsory, not discretionary. It is said that a court must give effect to the principle where more than one contravention has been established: Johnson v R (2004) 78 ALJR 616 (at [35]).
The aggregate of the agreed penalty is, for a respondent who engaged in the full seven day period of the unlawful industrial action and admitted to contravening s 38 of the BCII Act and s 421 of the FW Act, $8,500. For respondents who engaged in the unlawful industrial action for less than the maximum seven day period, it is proposed that the total penalty be reduced by $1,000 per day for the respondents who contravened s 38 of the BCII Act plus an additional $300 per day if the respondent also breached s 421 of the FW Act.
The ABCC says, and I accept, that on a proper application of the totality principle, the total amount of the penalties is appropriate and within the permissible range being neither manifestly excessive or manifestly inadequate having regard to the conduct in question taking into account the respondents’ prior relevant conduct.
Injunctions
The only additional aspect of argument advanced for the applicants which should presently be addressed is the question of the terms of the injunction.
The applicants and the represented respondents have agreed that it would be appropriate for the Court to grant an injunction in the following terms:
Each AMWU Respondent and CEPU Respondent be restrained for a period of seven (7) years from the date of this Order from doing any of the following whenever they are employed or otherwise engaged by any of the applicants:
(a)engaging in or being a party to or in ay way associated with or otherwise involved in any of the following actions in relation to building work on the Pluto LNG Project, the North West Shelf Project or the Browse LNG Project including construction and operations, and any future expansions of those projects (Projects)
(i)failing or refusing to attend work on the Projects or failing or refusing to accept or perform work on the Projects at all;
(ii)performing work on the Projects otherwise than in accordance with the terms of his or her employment contract;
(iii)performing work on the Projects in a manner different from that in which it is customarily performed, or adopting any practice in relation to work on the Projects, the result of which is a restriction or limitation on, or a delay in, the performance of that work;
except where such actions:
(i) are authorised or agreed by the respondent’s employer; or
(ii)are based upon the respondent’s reasonable concern about an imminent risk to the respondent’s health or safety and the respondent has not unreasonably failed to comply with the directions of the respondent’s employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the respondent to perform;
(b)interfering with or in any way disrupting the performance of work on the Projects by any of the following means:
(i)imposing, maintaining or aiding, abetting, encouraging, directing, procuring, inducing, advising or otherwise being involved in any bans, limitations, restrictions or delays on the performance of work or the acceptance of work by any of the applicants’ other employees to be performed under their terms of employment or in a manner which work is customarily performed with the applicants; and
(ii)imposing, maintaining or aiding, abetting, encouraging, directing, procuring, inducing, advising or otherwise being involved in the taking of days off by any of the applicants’ other employees otherwise than in accordance with rosters specified by the industrial instruments and employment contracts regulating their employment with the applicants.
Definitions
‘the Browse LNG Project’ means the project known by that name for the development, production and processing of petroleum and includes the off-shore and on-shore components of that project. The off-shore components of that project relate to the production of petroleum from the Brecknock, Calliance and Torosa fields located approximately 425 kilometres north of Broome, Western Australia and the on-shore components of that project relate to the on-shore processing of petroleum, currently anticipated to be located at James Price Point, near Broome, Western Australia.
‘the North West Shelf Project’ means the project known by that name for the development, production and processing of petroleum and includes the off-shore and on-shore components of that project. The off-shore components of that project relate to the production of petroleum from various fields located in the region approximately 130 kilometres north west of Karratha, Western Australia and the on-shore components of that project relate to the on-shore processing of petroleum at the Karratha Gas Plant in Karratha, Western Australia.
‘the Pluto LNG Project’ means the project known by that name or by the name Pluto LNG Development Project for the development, production and processing of petroleum and includes the off-shore and on-shore components of that project. The on-shore part of that project includes the construction of a single gas processing train and ancillary facilities between Onslow and the Burrup Peninsula in Western Australia.
In relation to the injunctive orders, the applicants submit that the Court has a wide discretion to make any orders it considers appropriate including the granting of an injunction by reference to s 49(1)(c) and (3) of the BCII Act and s 23 of the Federal Court of Australia Act1976 (Cth) (Federal Court Act) and s 417(3) and s 421(3) of the FW Act.
For convenience, s 23 of the Federal Court Act provides as follows:
23 Making of orders and issue of writs
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.
Also for convenience, s 417(3) and s 421(3) of the FW Act provide as follows:
417Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.
…
Injunctions and other orders
(3)If a person contravenes subsection (1), the Federal Court or Federal Magistrates 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.
421 Contravening an order etc.
Injunctions
(3)The Federal Court or Federal Magistrates Court may grant an injunction, under this subsection, on such terms as the court considers appropriate if:
(a)a person referred to in column 2 of item 15 of the table in subsection 539(2) has applied for the injunction; and
(b)the court is satisfied that another person to whom the order applies has contravened, or proposes to contravene, a term of the order.
Where a statute provides for a court to give relief in the form of an ‘injunction’, the remedy must take its content from the terms of the legislation (Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 (at 394)). While such orders involve similar principles to those considered in cases concerning traditional equitable injunctions (Varley v Varley [2006] NSWSC 1025 (at [22]), statutory provisions may give the courts power to grant injunctions when Courts of Equity would not do so. Thus the factors to be considered by a court when determining whether such statutory relief should be granted go beyond the scope of traditional equitable relief. Most statutes which empower a court to grant statutory injunctions are ‘public interest’ statutes and as such the prime objective of the power thus conferred is to compel compliance with the statutory obligation so as to ensure that the public interest is served. To that end, it is relevant to consider whether granting the injunction would have some utility or serve a purpose within the contemplation of the legislation (Australian Securities and Investments Commission v Mauer-Swisse Securities Ltd (2002) 42 ACSR 605 (at 607).
In the context of unlawful industrial action, the statutory power to grant an injunction to restrain conduct does not depend upon the Court reaching a finding that the respondents intended to engage in conduct of that kind in the immediate or distant future. However, the fact that such unlawful conduct has occurred in the past may make the Court more disposed towards ordering relief (United Group Resources Pty Ltd v Calabro (No 2) (2010) 192 IR 160 (United No 2) (at [22]) and Attorney-General (Ex rel Meat and Allied Trades Federation of Australia) v Beck [1980] 2 NSWLR 77 (at 94-95)).
The purpose of the injunction will be to restrain a repetition of the contravening conduct or any similar conduct: Woodside (at [156]). The applicants contend that it is significant that the industrial action the subject of these proceedings was not a ‘one-off’ isolated incident. Rather, it took place in the period from 22 to 30 January 2010 and was triggered by the decision to introduce ‘motelling’ accommodation at the Gap Ridge Village.
The initial announcement of that decision in late November 2009 also resulted in unlawful industrial action taking place by most of the employees of the contractors working on the Pluto Project on 1 and 2 December 2009. The earlier industrial action on 1 and 2 December 2009 caused both significant disruption to work on the Pluto Project as well as substantial loss and damage as did the subsequent industrial action in the period from 22 to 30 January 2010. The extent of that damage is disclosed in the affidavit of Mr Milne, sworn on 22 November 2011 (at [64]-[66]).
It is also significant, the applicants contend, that with the exception of one minor incident involving unprotected industrial action by a small number of scaffolders who left the work site as a mark of respect for a former construction worker who had died elsewhere, the injunction granted by the Court in February 2010 (which remains in force now) has seemingly resulted in there being no further industrial action at or in connection with the Pluto Project. The evidence for this also comes from the affidavit of Mr Milne.
The granting of the injunction also has the benefit of deterring the respondents from engaging in contravention in the future by attaching to any such contraventions the range of sanctions available for breach of a court order: see Woodside (at [157]) and Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976 (at [70]-[80]) where Lindgren J observed at the end of that passage (at [77]-[79]) as follows:
77It is important to recognise that the discretion to grant an injunction under s 80(1) is not governed by the constraints that apply where a court is exercising a jurisdiction governed by general equitable principles, although no doubt the same considerations, if they are present, could be relevant. An example is a threat of repetition.
78In the present case, there is no evidence of a threatened repetition of the contravention or a threat of any other contravention of the Act by Qantas. The purpose of injunctive relief here is therefore not to ensure that a threatened course of action does not occur. Rather, the purpose is, like that of imposition of the pecuniary penalty, that of deterrence – specific deterrence of Qantas and indirectly, general deterrence.
79In jointly submitting that the three year time limit on the injunction is appropriate, the parties refer to the following considerations:
(a)the conduct ceased over two years ago;
(b)the Court has not previously found contraventions of the Act by Qantas; and
(c)Qantas “has, by its thorough investigation, its admissions, its assistance to the applicant’s investigation, its contrition, and its substantial upgrading of its compliance programme internationally, demonstrated both a willingness and a genuine desire to prevent repetition”.
On the affidavit evidence of Mr Milne relied on by the applicants, many of the respondents continue to undertake construction and commissioning work on the Pluto Project. In addition, as a result of the specialised skills and experience which the respondents have in working on the LNG processing plants, it is likely that a significant number of them will be engaged to undertake:
(a)construction work on additional LNG processing drains at the Pluto Project and new LNG processing drains on the Browse Project; and
(b)maintenance work on the Pluto Project, Browse Project and/or North West Shelf Project. Woodside has a substantial equity interest in each of those Projects.
As the terms of the proposed injunction would, if granted, only restrain unlawful conduct, the relief sought would be consistent with the objects of the BCII Act and the FW Act. The proposed injunction agreed to by the parties forms an essential component of the settlement between the parties. If the injunction is not granted, the balance of the agreement at least as between the parties would also be in jeopardy.
The proposed injunction is in the public interest by reason of the importance of the resources projects. The evidence of Mr Milne emphasises the importance of the Pluto LNG Project, the North West Project and the Browse LNG Project to the Australian economy and the need to protect Australia’s reputation as a reliable oil and gas supplier. The width of the injunction both geographically and as to conduct over a period of years may be justified by the conduct which is the subject of the contravention: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2007] FCA 1546 (at [8]) per Gyles J where an injunction for four years was agreed between the parties and granted by the Court.
The injunction agreed by the parties in the present case is intended to operate for a defined period of seven years. That lengthy period of time is said by the applicants to be appropriate and reasonable in view of the likely time it will take Woodside and its joint venture partners to undertake the planned construction and maintenance works at the Pluto Project, the Browse Project and the North West Shelf Project as evidenced by Mr Milne. That term is less than the permanent injunction granted by Gilmour J in Woodside which permanently restrained the CFMEU from engaging in or being involved in any industrial action on or in connection with Pluto Project, the Browse Project and the North West Shelf Project including construction and operations and any future expansion of the Projects.
Suspension
As indicated, the ABCC has made it clear that it largely supports the settlement reached between the applicants and the represented respondents with the exception of the suspension in entirety of the agreed penalties.
As indicated, the joint position presented by the applicants and the represented respondents is for a seven year period of suspension of the penalties against the respondents but with a seven year injunction against the respondents and the applicants to release the respondents from their claim for damages. An undertaking is to be provided by the CFMEU and the AMWU and the CEPU and the applicants are to release those entities with respect to any actions in respect of the December 2009 strike an the unlawful industrial action and each party is to bear his or her or its own costs.
The ABCC complains that while the undertaking to be provided by the unions would benefit the applicants and achieve a positive outcome for the future industrial harmony on Woodside’s North West Shelf Projects, it serves as no form of punishment against the respondents for the unlawful industrial action and ought not be weighed in favour of the fully suspended penalty or in the question of penalty at all.
The ABCC argues that in relation to the injunction aspect, it does nothing more than require the respondents to comply with the lawful obligations albeit with the potential added consequence of contempt if they breach the injunction. It relates only to ‘building work’. It is unclear, it is said, as to whether ‘building work’ is intended to be defined as per s 5 of the BCII Act. However defined it would appear that the injunction’s utility during the commissioning phases of the Project or the subsequent operational phase where construction was not present would be questionable. The proposed injunction was likely to only be enforceable by the applicants to protect the Project for the next three to four months whilst construction work was being performed. The respondents, in engaging in the unlawful industrial action, it is said, have already demonstrated disregard for the industrial laws and there is evidence that unprotected industrial action has occurred since the imposition of the interlocutory injunction by me on 27 January 2010.
602 ROSS Yancy-lee Fiocco’s (con-11/5/10) 603 RUDOLF (CUMBERS) Renee Fiocco’s (31/3/11) 604 SANDERS Michael Fiocco’s (con-11/5/10) 605 SAXBY Zallman 606 SCALES Simon Gibson & Gibson (23/11/10) 607 SCANTLEBURY Robin 608 SCHAECHE Eric 609 SCHOONER Raimona (Joe) Fiocco’s (con-11/5/10) 610 SCULLION Joseph Gibson & Gibson (8/4/10) 611 SCULLION Neil 612 SEMMENS Jai Fiocco’s (con-11/5/10) 613 SHAND Derick 614 SHELLY Ben 615 SIMPSON Tahi 616 SLOMAN Janet Fiocco’s (con-11/5/10) 617 SMITH Barry 618 SMITH Peter 619 SMITH Bruce Gibson & Gibson (23/11/10) 620 SPARKE Cassie 621 SPRAGUE Matthew Fiocco’s (19/11/10) 622 STARCEVIC Martin 623 STRANG Matthew 624 SWINDLEHURST Kevin 625 TAHI TAHI Antonio 626 TAMATEA Patrick 627 TANGIORA Clinton 628 DISCONTINUED 16/02/11 Fiocco’s (con-11/5/10) 629 TASKER Patricia Fiocco’s (con-11/5/10) 630 TE MIHA Deon 631 THEXTON Gary 632 TICEHURST Michael 633 TIMMERMANS James Gibson & Gibson (23/11/10) 634 TOAKLEY Matthew 635 TOMS Robin 636 TYSON Shane Gibson & Gibson (23/11/10) 637 VAAI Lasalosi 638 VAN EETEN Daniel 639 VARIAN Shane 640 VELLA Jesse Fiocco’s (con-11/5/10) 641 VOZAREVIC Bruno 642 WATSON Rebecka Fiocco’s (con-11/5/10) 643 WEARNE Adam Gibson & Gibson (23/11/10) 644 WEBB Paul 645 WEIR Kristian Fiocco’s (con-11/5/10) 646 WETERE Louis 647 WHELPDALE Eddie 648 WHITE Ramon 649 WHITE Brett 650 WILKINSON Norman Gibson & Gibson (23/11/10) 651 WILLIAMS Keetha Address for service filed 8/11/2010. 652 WILLSHIRE Andrew (Andy) 653 WILSON Troy Gibson & Gibson (23/11/10) 654 DISCONTINUED 16/02/11 655 WOODLAND Jamie 656 WOOLLASTON Simon 657 WRIGHT Colin Fiocco’s (con-11/5/10) 658 YEONG Kam Gibson & Gibson (8/4/10) 659 ABELHA Daniel John D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 660 BISKUP Michael D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 661 DAVEY SIMON. E. D Schapper (26/11/10) (Fiocco’s 8/9/11) 662 EGGERS Simon D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 663 EVERITT James Derek Schapper(Fiocco’s 8/9/11)664 GARDENER Ross D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 665 GOUGE Jason D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 666 GUYATT Duane D Schapper (20/12/10) (Fiocco’s 8/9/11) 667 HARRISON Robin Derek Schapper(Fiocco’s 8/9/11)668 HEARD Darren D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 669 HEYWOOD Samuel D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 670 HOLMES Paul D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 671 DISCONTINUED 22/11/10 672 JORDAN Aaron D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 673 KENNEDY Wayne D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 674 KIMPTON Timothy Derek Schapper (31/3/11) 675 KIRKPATRICK Kevin D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 676 LEACH A. TA. 677 LETTE Bradley D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 678 MCCARTNEY Nicholas D Schapper (3/12/10) (Fiocco’s 8/9/11) 679 MEARDI Alberto D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 680 MESSAGE S. TA D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 681 MITCHELL Leigh. E. D Schapper (26/11/10) (Fiocco’s 8/9/11) 682 MULVEY Paul E. D Schapper (20/1/11) (Fiocco’s 8/9/11) 683 DISCONTINUED 16/02/11 Fiocco’s (19/11/10) 684 PHILLIPS David D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 685 PRIESTLY M. TA. 686 SHEASBY Robert Fiocco’s (1/2/11) 687 SMITH B. E. 688 SPANGEN Shannon D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 689 WATTS Steve D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 690 WEBB Ashley D Schapper (con-14/5/10, non-con 26/11/10) (Fiocco’s 8/9/11) 691 WILKS Brad D Schapper (21/1/11) (Fiocco’s 8/9/11) 692 ASIATA Moses 693 ATKINS Te Rongonui Fiocco’s (19/11/10) 694 BISHOP Matthew 695 BLAKE Sean 696 BRYAN Jason Fiocco’s (19/11/10) 697 BURNS Darryl 698 COLLINS Craig 699 COOMBES Michael Fiocco’s (con-11/5/10) 700 COOPER Layton 701 COOPER Aaron 702 DAVID Julian Fiocco’s (31/3/11) 703 DEVINE Cash 704 DIOSAN Radu Fiocco’s (22/11/10) 705 DROLLET Kayne 706 DUNN Nigel Fiocco’s (19/11/10) 707 EMERY Manny Fiocco’s (19/11/10) Gibson (3/12/10 and 8/9/11) 708 FIAMANYA Dzifa 709 FINCARYK Oscar Fiocco’s (31/3/11) 710 FORBES Anthony Fiocco’s (con-11/5/10) 711 GABRIEL Iarere (Eddie) Fiocco’s (con-11/5/10) 712 GARNER Stephen 713 GATHERCOLE-SMITH Justin Fiocco’s (22/12/10) 714 GIBBS Jacob Fiocco’s (19/11/10) 715 GLASS Steven Fiocco’s (con-11/5/10) 716 HAPE Kahu 717 HARTLEY Dean Fiocco’s (22/11/10) 718 HAYES Craig Fiocco’s (con-11/5/10) 719 HINAKI Randal Fiocco’s (con-11/5/10) 720 HOWE Duane 721 IEREMIA Sipili Fiocco’s (19/11/10) 722 IND Matthew 723 JAYME Steven 724 JENSEN Ross Fiocco’s (con-11/5/10) 725 KAISER Michael Fiocco’s (con-11/5/10) 726 KEARNS Clinton Fiocco’s (19/11/10) 727 KELLY Stuart 728 KIRTLEY Jai 729 KLAPKO Andrew Fiocco’s (con-11/5/10) 730 KOMENE Robert 731 KOUKA Bennett 732 LANDMETER Harry 733 LODGE Dewayne Fiocco’s (19/11/10) 734 LULHAM Marc Fiocco’s (con-11/5/10) 735 MAEA John Fiocco’s (con-11/5/10) 736 MANU Harley 737 MANU Jeremia Fiocco’s (con-11/5/10) 738 MANU John Fiocco’s (con-11/5/10) 739 MANUEL Jardine 740 MASON Terence 741 MATENGA Huki 742 MCCRORY Bernard Fiocco’s (6/12/20011) 743 McCRORY Jason 744 MEDLAND Dean Fiocco’s (con-11/5/10) 745 MILLS Stephen Fiocco’s (con-11/5/10) 746 MORRIS Joseph 747 MURPHY Wayne Fiocco’s (19/11/10) 748 NGAMOKI Pita 749 ORLOWSKI David Fiocco’s (con-11/5/10) 750 PAYNE Drew Fiocco’s (con-11/5/10) 751 PEMBERTON Paul 752 PIRIHI Jade Fiocco’s (19/11/10) 753 POTTER Leonard Fiocco’s (6/12/20011) 754 RAHARUHI Kiha 755 RAINE Chris 756 REARDON Daniel Fiocco’s (19/11/10) 757 ROBINSON Michael Fiocco’s (19/11/10) 758 ROWSELL Jason Fiocco’s (con-11/5/10) 759 SHELFORD Angus Fiocco’s (con-11/5/10) 760 SMITH James Fiocco’s (6/12/20011) 761 STONE Glenn Fiocco’s (6/12/20011) 762 TEMAARI Ryan Fiocco’s (19/11/10) 763 TEPOHE Nathan Fiocco’s (con-11/5/10) 764 TEPU Patrick Fiocco’s (con-11/5/10) 765 THOMAS Jamie Fiocco’s (19/11/10) 766 THOMPSON Stacy Fiocco’s (19/11/10) 767 THURSTON Troy Fiocco’s (con-11/5/10) 768 TOGIA Sasa 769 TUPAEA Matthew Fiocco’s (31/3/11) 770 WALKER Stephen Fiocco’s (22/11/10) 771 WATENE Cory Fiocco’s (con-11/5/10) 772 WILLIAMSON Stephen 773 WIPERI Jason Fiocco’s (12/12/11) 774 DIEHL Armin Fiocco’s (19/11/10) 775 DISCONTINUED 16/02/11 Personal Appearance filed 25/2/10 776 BROWNING Paul 777 DAWSON Samual 778 HOWELL Justin 779 CAMPBELL Danny 780 DODSLEY Andrew Fiocco’s (con-11/5/10) 781 ELBOROUGH Kimley Fiocco’s (31/3/11) 782 FIELD Christopher Gibson & Gibson (23/11/10) 783 FRASER Laureen 784 FRASER Trevor 785 HAWKINS Stephen Gibson & Gibson (8/9/11) 786 LAMB Gregory Fiocco’s (con-11/5/10) 787 PARVIN Stephen Gibson & Gibson (23/11/10) 788 PLUNKETT Kevin Fiocco’s (con-11/5/10) 789 PORTER Mark Fiocco’s (con-11/5/10) 790 SEABURN Kevin 791 SOMERVILLE Ryan 792 SUTHERLAND Travis 793 TOKI Mitch Fiocco’s (19/11/10) 794 WALKER Wayne 795 WEBB Adrian 796 ANDERSON David D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 797 AYRES Brett D Schapper (con-14/5/10)
(Fiocco’s 19/11/10; 8/9/11)798 BEETS Bryan 799 BENJAMIN Edmund D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 800 BENSON Scott D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 801 BOSCO Adrian D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 802 BOWER Peter D Schapper (9/12/10) (Fiocco’s 8/9/11) 803 BUSINOSKI Ilija D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 804 CAMPBELL Rhys D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 805 CARR Bryne D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 806 CHEAL John D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 807 CHRISTENSEN, Ross Gibson & Gibson (8/4/10) 808 COBB Brett D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 809 COOPER Dwanie Fiocco’s (19/11/10) 810 DOCKERTY Michael D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 811 DOHERTY Paul D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 812 ESDALE Adam 813 GIBBS Ian Gibson & Gibson (24/12/10) 814 GOODALL Darren D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 815 GORDON-DAVISON Kayne D Schapper (30/11/10) (Fiocco’s 8/9/11) 816 GRECI David D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 817 HANNAFORD Gareth D Schapper (7/12/10) (Fiocco’s 8/9/11) 818 DISCONTINUED 16/02/11 D Schapper (8/12/10) (Fiocco’s 8/9/11) 819 HARVEY Brian D Schapper (30/11/10) (Fiocco’s 8/9/11) 820 HOWE Ben D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 821 KENNING Darrell 822 LEACH Gareth D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 823 MACALE David D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 824 MARCINKOWSKI Laurie D Schapper (20/12/10) (Fiocco’s 8/9/11) 825 OLDHAM Scott D Schapper (1/12/10) (Fiocco’s 8/9/11) 826 PEGRUM Brad D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 827 POON Ryan D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 828 PRIMROSE Darren Fiocco’s (9/12/10) 829 ROACH Greg D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 830 ROBERTS Jenny D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 831 ROBERTS Mick D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 832 SANDERS Jason D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 833 SELLECK Syd D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 834 SHEATHER Luke D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 835 SMITH Nathan D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 836 SODEN Derek D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 837 STEPHENSON Tony D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 838 STONER Andrew D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 839 SULLIVAN Scott D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 840 SWAN David D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 841 TAYLOR John D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 842 THOMAS Jamie D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 843 TURNER Robert D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 844 TWYFORD James D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 845 VAN ROOYEN Kelly D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 846 VAN WANROOY Justin D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 847 WALTERS Steve 848 WILSON Jeff D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 849 ABBOTT, Bill D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 850 BLIOKAS, Rob D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 851 CAKE, Mathew D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 852 CORBETT, Adam D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 853 KERR, Brian D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 854 KOVACESKI, Angel D Schapper (con-14/5/10) Gibson (23/11/10) (Fiocco’s 8/9/11) 855 MARAS, John D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 856 WELSH, Gary 857 WILSON, Michael D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 858 MARSH, Tony D Schapper (con-14/5/10) (Fiocco’s 8/9/11) 859 DISCONTINUED 18/05/10 860 ALLMAN Robert Fiocco’s (con-11/5/10) 861 ARCARO Murray 862 ARCARO Nicholas Fiocco’s (con-11/5/10) 863 ATKINSON Stephen 864 BACON Kenneth Gibson & Gibson (23/11/10) 865 BAEZ Juan 866 BAEZ Sergio 867 BAIL Jason Fiocco’s (con-11/5/10) 868 BAILEY Troy 869 DISCONTINUED 18/05/10 870 DISCONTINUED 18/05/10 871 BECKER Peter 872 BECKMAN Alan 873 BELL Murray Fiocco’s Lawyers 874 DISCONTINUED 18/05/10 875 BOBOS Carl Fiocco’s (con-11/5/10) 876 BRENNAN Stephen Fiocco’s (con-11/5/10) 877 BRITTAIN Timothy Gibson & Gibson (23/11/10) 878 BROOKS Raymond 879 DISCONTINUED 18/05/10 880 DISCONTINUED 18/05/10 881 CARMICHAEL James 882 CASTRO Dean Fiocco’s (con-11/5/10) 883 CHRISTENSEN Kenneth 884 CLARK Harley 885 CLARK Robert Gibson & Gibson (23/11/10) 886 CLEARY James 887 DISCONTINUED 22/11/10 888 CONNELL Travis Gibson & Gibson (23/11/10) 889 CROSIER Andrew 890 DISCONTINUED 18/05/10 891 DODD Peter 892 DONDAS Michael Gibson & Gibson (23/11/10) 893 DONNELLY Brett 894 DUPLESSIS Johannes 895 EDWARDS David Gibson & Gibson (con-28/5/10) 896 ELPHICK Jeffrey Gibson & Gibson (con-28/5/10) 897 FAUSTINO Victor Gibson & Gibson (23/11/10) 898 FERREIRA Jose Gibson & Gibson (23/11/10) 899 FRONTE Salvatore Gibson & Gibson (23/11/10) 900 DISCONTINUED 18/05/10 901 GARNIER-BRADLEY Jason Gibson & Gibson (18/3/11) 902 DISCONTINUED 22/11/10 903 GOODALL Tay Fiocco’s (19/11/10) 904 GROTH William 905 HAKIWAI Stirling 906 HARDINGHAM Adrian Fiocco’s (con-11/5/10) 907 HARRIS Ike 908 HEGARTY Steven 909 HOUSE Clayton Gibson & Gibson (23/11/10) 910 HUMPHREY David 911 HUNWICK Phillip Fiocco’s (con-11/5/10) 912 JARRETT Glenn 913 JOHNS Robert 914 JOHNSTON Anthony Fiocco’s (con-11/5/10) 915 KELLY Matthew 916 KINGHORN William 917 KOVACESKA Menka Gibson & Gibson (23/11/10) 918 KOVACESKI Donco Gibson & Gibson (23/11/10) 919 DISCONTINUED 18/05/10 920 KRUGER Rodney 921 LANE Darrin 922 LANNIN Bradley 923 LAROSA Agostino Fiocco’s (19/11/10) 924 LE CERF Garry 925 LEE Mu Yeun 926 LILLEY Joseph 927 LIM Nao 928 LUDLAM John Fiocco’s (con-11/5/10) 929 MABBOTT Bruce Fiocco’s (19/11/10) 930 MacKINNON Graeme 931 MANNERING Peter 932 MARLOW Michael 933 MARTIN James 934 MARTIN Trevor Gibson & Gibson (23/11/10) 935 MATEIU Gherge 936 MAXWELL Daniel 937 McCABE Mark 938 McINERNEY John Fiocco’s (con-11/5/10) 939 MCINERNEY Todd 940 MCKENNA Henry 941 MCKENZIE Alan Gibson & Gibson (8/4/10) 942 MCKINNON David 943 MILLER Bradley 944 MILROY Gary Gibson & Gibson (23/11/10) 945 MINNS Neil Fiocco’s (con-11/5/10) 946 MITCHELL Robert Gibson & Gibson (23/11/10) 947 MORLEY Robert 948 NEWSHAM Garry 949 NOBLE Brendan 950 O'SHEA Daniel 951 DISCONTINUED 22/11/10 952 PERRY Marcus 953 PESTANA Jose 954 PIRIHI Dylan 955 RAZI-PANAH Jarwad 956 RICE Mark 957 RYAN John 958 SANDERS Dean Fiocco’s (con-11/5/10) 959 SANSOM Gregory Fiocco’s (con-11/5/10) 960 SCHMITT Gregory 961 DISCONTINUED 22/11/10 Fiocco’s (con-11/5/10) 962 SHIELD Keith Fiocco’s (con-11/5/10) 963 SMYTHE Jason 964 SNELLIN Ronald Gibson & Gibson (8/4/10) 965 STUURSTRAAT Shannan Fiocco’s (con-11/5/10) 966 SURRIDGE Daniel Fiocco’s (con-11/5/10) 967 SVILICICH Lee 968 SWINNEY Antony 969 TAMAPUA Allan 970 TAYLOR Kim 971 TUKUAFU Finau Fiocco’s (con-11/5/10) 972 DISCONTINUED 18/05/10 973 WAIARIKI Paul Gibson & Gibson (6/12/2011) 974 WALSH John 975 WARNER Paul Fiocco’s (con-11/5/10) 976 WATTS Priscilla Fiocco’s (con-11/5/10) 977 WEAVER Blake Fiocco’s (con-11/5/10) 978 WEAVER Mark Fiocco’s (con-11/5/10) 979 WEIR Mitchell Fiocco’s (con-11/5/10) 980 WETERE Tirau Fiocco’s (con-11/5/10) 981 WOLSKI Daniel Fiocco’s (con-11/5/10) 982 WOOD Leon Fiocco’s (con-11/5/10) 983 WOODWARD Sam Fiocco’s (con-11/5/10) 984 DISCONTINUED 18/05/10 985 Lional Abrahams Gibson & Gibson (8/4/10) 986 Lesley Ajaran 987 DISCONTINUED 18/05/10 988 Nathan Arbery 989 Cody Arvidson 990 Mark Ashcroft 991 Adrian Baillie 992 Jonathan Barclay 993 Kenneth Barclay Gibson & Gibson (23/11/10) 994 Stephen Barnett 995 Rolando Bazaez 996 Louis Beaunoir 997 Jason Behncke Gibson & Gibson (con-28/5/10) 998 Jan Bennett Gibson & Gibson (con-28/5/10) 999 Troy Benton Fiocco’s (con-11/5/10) 1000 Arjun Bhoi Fiocco’s (31/3/11) 1001 Nitin Bhosale 1002 Marcel Biggar 1003 Francis Blampied Gibson & Gibson (23/11/10) 1004 Tommy Bonke Fiocco’s (con-11/5/10) 1005 Benjamin Boocock 1006 Nathan Bosworth 1007 DISCONTINUED 18/05/10 1008 Christian Brekalo 1009 Nick Brekalo 1010 Andrew Brennan Fiocco’s (con-11/5/10) 1011 Christopher Browne 1012 Gabriel Bruno 1013 Marcus Burke Gibson & Gibson (23/11/10) 1014 Craig Cameron Gibson & Gibson (8/4/10) 1015 DISCONTINUED 18/05/10 1016 Dean Cassidy 1017 Hasan Ceric Gibson & Gibson (23/11/10) 1018 Tony Chipchase 1019 Juho Choi 1020 Clinton Chrisp John Dewar, Crisp Hudson & Mann (17/11/10) 1021 DISCONTINUED 18/05/10 1022 DISCONTINUED 18/05/10 1023 Jye Coleman Fiocco’s Lawers (7/9/11) 1024 Dean Collins 1025 Andrew Collinson 1026 Collis James 1027 DISCONTINUED 18/05/10 1028 John Coutts Gibson & Gibson (23/11/10) 1029 Mark Coverly Gibson & Gibson (con-28/5/10) 1030 Joshua Cruice Fiocco’s (19/11/10) 1031 Alfredo Da Silva Gibson & Gibson (con-28/5/10) 1032 DISCONTINUED 18/05/10 1033 Trevor Datson Gibson & Gibson (con-28/5/10) 1034 DISCONTINUED 18/05/10 1035 Brian Davies 1036 Jeffrey Davis Gibson & Gibson (23/11/10) 1037 DISCONTINUED 18/05/10 Gibson & Gibson (con-28/5/10) 1038 Gerrit De Blanken Gibson & Gibson (23/11/10) 1039 James De Bruin Gibson & Gibson (con-28/5/10) 1040 Beau Deverall Gibson & Gibson (con-28/5/10) 1041 Claude Devos 1042 Manuel Dias Gibson & Gibson (23/11/10) 1043 Radwan Eltchelebi Gibson & Gibson (con-28/5/10) 1044 DISCONTINUED 18/05/10 1045 DISCONTINUED 18/05/10 1046 DISCONTINUED 18/05/10 1047 Discontinued 31/08/11 Personal appearance (18+19/11/10) 1048 Mark Fleay Gibson & Gibson (con-28/5/10) 1049 Craig Fleming In Person (5/4/11) 1050 Katie Forbes Gibson & Gibson (con-28/5/10) 1051 Terrence Fox Gibson & Gibson (23/11/10) 1052 Jason Francis 1053 Michael Franke Fiocco’s (19/11/10) 1054 Damien Freeth 1055 John Frino Fiocco’s (19/11/10) 1056 Steven Gaby Gibson & Gibson (con-28/5/10) 1057 DISCONTINUED 18/05/10 1058 David Gera Gibson & Gibson (6/12/2011) 1059 DISCONTINUED 18/05/10 1060 Paul Gnech 1061 Shaun Goldstone 1062 Anthony Gostlow 1063 DISCONTINUED 18/05/10 1064 Phillip Grevell Gibson & Gibson (con-28/5/10) 1065 Roger Griffiths Gibson & Gibson (con-28/5/10) 1066 Michael Hagan Gibson & Gibson (23/11/10) 1067 Adrian Hage 1068 DISCONTINUED 18/05/10 1069 Peter Harris Gibson & Gibson (con-28/5/10) 1070 DISCONTINUED 18/05/10 1071 DISCONTINUED 18/05/10 1072 John Heckscher Gibson & Gibson (23/11/10) 1073 Geoffrey Height 1074 Todd Heron Gibson & Gibson (23/11/10) 1075 Marcelene Heslop Gibson & Gibson (con-28/5/10) 1076 Graeme Hocking Fiocco’s (con-11/5/10) 1077 Peter Hoek 1078 Andrew Holden 1079 DISCONTINUED 18/05/10 1080 Sean Hoskins 1081 Steven Hossack 1082 Harold Houghton 1083 Mervyn Houghton 1084 DISCONTINUED 18/05/10 1085 DISCONTINUED 18/05/10 1086 David Hull Gibson & Gibson (8/4/10) 1087 Joshua Humphries 1088 Glenn Hutton Gibson & Gibson (con-28/5/10) 1089 DISCONTINUED 18/05/10 1090 Elias Israel Gibson & Gibson (con-28/5/10) 1091 DISCONTINUED 18/05/10 1092 Sergio Jacobs 1093 Paul Jean-Pierre 1094 Craig Jeffs 1095 John Jenkins 1096 Kenneth Johnstone 1097 Mark Jones Gibson & Gibson (3/12/10) 1098 Ray Jones Gibson & Gibson (23/11/10) 1099 Robert Jones 1100 Fabian Joule 1101 Edan Kennedy Gibson & Gibson (6/12/2011) 1102 Stuart (Alvin) Kerrigan 1103 Nigel Kiedo Gibson & Gibson (con-28/5/10) 1104 Discontinued 31/08/11 Personal appearance (15/11/10) 1105 Travis Ladhams Gibson & Gibson (23/11/10) 1106 DISCONTINUED 18/05/10 1107 Peter Law Gibson & Gibson (con-28/5/10) 1108 Paul Leach Gibson & Gibson (8/4/10) 1109 Chong-Won Lee 1110 DISCONTINUED 18/05/10 1111 Mark Lindsay Gibson & Gibson (con-28/5/10) 1112 DISCONTINUED 18/05/10 1113 Shannon Livingstone 1114 Jason Lockhart Gibson & Gibson – (3/12/10 and 18/1/11) 1115 Stephen Lowther Gibson & Gibson (con-28/5/10) 1116 William Lyall Gibson & Gibson (23/11/10) 1117 Donald MacKay 1118 Brett Mackie 1119 Gerarado Magtalas Gibson & Gibson (23/11/10) 1120 Simeon Magtalas Gibson & Gibson (23/11/10) 1121 Thomas Mahar 1122 Matthew Manning 1123 DISCONTINUED 18/05/10 1124 Garry Mansfield 1125 DISCONTINUED 18/05/10 1126 Calvin Martin 1127 Andrew Mazlin 1128 Adam McAnany 1129 Discontinued 05/09/11 C Garvey sol (15/11/10) ceased (24/3/11) 1130 Gary McCarthy 1131 Shane McClure 1132 Ian McCracken 1133 Matthew McGurgan Gibson & Gibson (23/11/10) 1134 Wayne McMahon 1135 DISCONTINUED 18/05/10 1136 Spencer Meade Gibson & Gibson (23/11/10) 1137 Alan Middleton 1138 Simon Mieschbuehler 1139 Kane Mita Fiocco’s (con-11/5/10) 1140 Charles Mitchell 1141 DISCONTINUED 18/05/10 1142 Erwin Montiere 1143 Nicholas Morley 1144 Steven Mott Gibson & Gibson (23/11/10) 1145 Steven Moxon Gibson & Gibson (con-28/5/10) 1146 Len Mudri 1147 Ian Mullan 1148 DISCONTINUED 18/05/10 1149 Christopher Murray 1150 Michael Narbey 1151 DISCONTINUED 22/11/10 Gibson & Gibson (23/11/10) 1152 Stuart Noakes 1153 Gregory Norris 1154 Stephen Novack Gibson & Gibson (8/4/10) 1155 Thomas O'Brien 1156 Luke O'Fee 1157 Damien O'Kane 1158 Russel Olsen 1159 Martin Osborne Gibson & Gibson (8/4/10) 1160 Robert Osbourne Gibson & Gibson (23/11/10) 1161 Pavo Parad 1162 Trevor Park 1163 DISCONTINUED 18/05/10 1164 Graeme Penglase 1165 Mark Pertile 1166 Robert Peters 1167 Sotha Pheng 1168 Aaron Phyland Fiocco’s (19/11/10) 1169 David Pidgeon 1170 Robert Pippia Gibson & Gibson (23/11/10) 1171 Murray Porter 1172 DISCONTINUED 18/05/10 1173 Matthew Ramage Gibson & Gibson 1174 Daniel Reddie Gibson & Gibson (23/11/10) 1175 Ronald Robinson 1176 Wayne Roelandts Gibson & Gibson (23/11/10) 1177 DISCONTINUED 18/05/10 1178 Phillip Rowell Gibson & Gibson (23/11/10) 1179 Steven Sakic 1180 Jin (Fred) Sang-Yoo Gibson & Gibson (3/12/10) 1181 Ivan Sapina 1182 Michael Schoeman Gibson & Gibson (23/11/10) 1183 Dimitru Serban 1184 Yong Shao Gibson & Gibson (23/11/10) 1185 Denny Singleton 1186 DISCONTINUED 18/05/10 1187 Charles Snyman Gibson & Gibson (23/11/10) 1188 Kevin Squibb 1189 Ralph Stapelfeldt Gibson & Gibson (23/11/10) 1190 Gary Stramare Fiocco’s (con-11/5/10) 1191 Clive Sucks 1192 Steven Sulenta Gibson & Gibson (23/11/10) 1193 Steven Tarran Gibson & Gibson (8/4/10) 1194 Gary Taylor 1195 Joseph Taylor Gibson & Gibson (8/4/10) 1196 Allan Thompson Fiocco’s (con-11/5/10) 1197 Bradley Thompson 1198 Christopher Thornhill 1199 Neil Tollison Gibson & Gibson (6/12/2011) 1200 Alberto Tome Gibson & Gibson (8/4/10) 1201 Brett Tooby 1202 Andre Turner 1203 Mark Tutton 1204 Brendan Tye 1205 Colin Tyrer 1206 Peter Ugle 1207 Johnny Van Wyk 1208 Arnoldus Van Wyke 1209 Adrian Vandersluis 1210 Darryl Vickers 1211 Joel Von Nida 1212 Noel Webster 1213 Dean Weiss 1214 DISCONTINUED 18/05/10 1215 Drew Wickenden 1216 DISCONTINUED 18/05/10 1217 DISCONTINUED 18/05/10 1218 Gabriel Williams 1219 Gregory Williams 1220 Henry Wynkwaardt Gibson & Gibson (8/4/10) 1221 Noel Zanetti Gibson & Gibson (23/11/10) 1222 Matthew Zonta Gibson &Gibson (19/7/11) 1223 Pero Zuvela Gibson & Gibson (23/11/10) 1224 Michael Abelha 1225 Richard Alcott 1226 David Ali Fiocco’s (con-11/5/10) 1227 Noel Amari Fiocco’s (con-11/5/10) 1228 DISCONTINUED 18/05/10 Fiocco’s (con-11/5/10) 1229 Ryan Augustus 1230 Mark Bailey Fiocco’s (con-11/5/10) 1231 David Baines Fiocco’s (con-11/5/10) 1232 Fred Baker Fiocco’s (19/11/10) 1233 Reyon Band Fiocco’s (con-11/5/10) 1234 Antony Barlow Fiocco’s (19/11/10) 1235 DISCONTINUED 22/11/10 1236 Todd Bartlett 1237 Laurence Bascombe Gibson & Gibson (8/4/10) 1238 John Basso Gibson & Gibson (con-28/5/10) 1239 Mark Bateman Fiocco’s (con-11/5/10) 1240 Richard Bauer Gibson & Gibson (8/4/10) 1241 John Bernard Fiocco’s (con-11/5/10) 1242 Craig Berry Gibson & Gibson (8/4/10) 1243 DISCONTINUED 18/05/10 1244 Morgan Blake 1245 Ellen Bolton Fiocco’s (con-11/5/10) (19/11/10) 1246 Slobodan Brakus 1247 Benjamin Brand Fiocco’s (31/3/11) 1248 DISCONTINUED 18/05/10 1249 Tyrone Briffa 1250 DISCONTINUED 18/05/10 1251 Ivaso Buac 1252 Ben Burns Fiocco’s (con-11/5/10) 1253 Ian Byrne 1254 Iain Calder Fiocco’s (19/11/10) 1255 Aaron Calley Fiocco’s (con-11/5/10) 1256 Ross Cameron Fiocco’s (con-11/5/10) 1257 Les Camilleri Fiocco’s (con-11/5/10) 1258 DISCONTINUED 18/05/10 1259 Luke Cashman 1260 Damien Chant Fiocco’s (con-11/5/10) 1261 Michael Christensen 1262 DISCONTINUED 18/05/10 1263 Paul Cole 1264 DISCONTINUED 18/05/10 1265 Anthony Cooper Fiocco’s (con-11/5/10) 1266 Jason Cornwell 1267 Clyde Cowley Fiocco’s (con-11/5/10) 1268 DISCONTINUED 18/05/10 1269 Michael Crook Fiocco’s (con-11/5/10) 1270 DISCONTINUED 18/05/10 1271 DISCONTINUED 18/05/10 1272 Graeme Daniel 1273 Mathias Dann 1274 DISCONTINUED 18/05/10 1275 Andrew Davies 1276 Kevin Davis Fiocco’s (con-11/5/10) 1277 DISCONTINUED 16/02/11 Fiocco’s (con-11/5/10) 1278 Joe De Faria 1279 Matthew De Glanville Fiocco’s (19/11/10) 1280 Chad De Rooy 1281 DISCONTINUED 18/05/10 1282 Wade Den Ridder Fiocco’s (19/11/10) 1283 Matthew Denton Gibson & Gibson (con-28/5/10) 1284 Daniele Dimasi Fiocco’s (con-11/5/10) 1285 Arnolda Do Carmo 1286 Andrew Dobson 1287 DISCONTINUED 16/02/11 1288 DISCONTINUED 18/05/10 1289 Roland Edwards 1290 DISCONTINUED 18/05/10 Gibson & Gibson (8/4/10) 1291 Cameron Ewart 1292 Bud Feenstra Fiocco’s (con-11/5/10) 1293 Miroslav Ferluga 1294 Paulo Fernandes Gibson & Gibson (23/11/10) 1295 DISCONTINUED 18/05/10 1296 DISCONTINUED 18/05/10 1297 Tristan Fuller 1298 Andrew Gaffney Fiocco’s (con-11/5/10) 1299 Graeme Geddes 1300 Peter Geisner 1301 Nicholas George Gibson & Gibson (23/11/10) 1302 Guiseppe Giglia Fiocco’s (con-11/5/10) 1303 Chris Gillen Fiocco’s (con-11/5/10) 1304 DISCONTINUED 18/05/10 1305 Craig Goold 1306 DISCONTINUED 18/05/10 1307 Ian Grace Fiocco’s (con-11/5/10) 1308 Joseph Green 1309 Phillip Green Gibson & Gibson (con-28/5/10) 1310 Andrew Greene Fiocco’s (con-11/5/10) 1311 Paul Grgurovic Gibson & Gibson – 23/11/10 1312 Mark Haak Fiocco’s (con-11/5/10) 1313 David Hacking Fiocco’s (con-11/5/10) 1314 Gabriel Halkyard Fiocco’s (con-11/5/10) 1315 Steven Hall Gibson & Gibson (con-28/5/10) 1316 Lyncon Halligan Fiocco’s (con-11/5/10) 1317 Cy Hamilton Fiocco’s (con-11/5/10) 1318 Chris Hancock 1319 Jarrid Harrison Fiocco’s (19/11/10) 1320 Greg Hatchett Gibson & Gibson (con-28/5/10) 1321 Jarrad Hawkins Fiocco’s (con-11/5/10) 1322 DISCONTINUED 18/05/10 1323 Luke Heaney 1324 DISCONTINUED 18/05/10 1325 Malcolm Herring 1326 DISCONTINUED 18/05/10 1327 Nathan Hicks 1328 Ben Hodkinson Fiocco’s (19/11/10) 1329 Tim Holdsworth Fiocco’s (con-11/5/10) 1330 Craig Holst Gibson & Gibson (23/11/10) 1331 DISCONTINUED 18/05/10 1332 Karatehana Horo Fiocco’s (con-11/5/10) 1333 Kevin Howat Fiocco’s (con-11/5/10) 1334 Vince Howes 1335 Tyrone Hoys Gibson & Gibson (23/11/10) 1336 Gavin Hughes 1337 Victor Hugo Gibson & Gibson (con-28/5/10) 1338 Paul Hulbert Fiocco’s (con-11/5/10) 1339 Mark Huyshe Fiocco’s (19/11/10) and (29/11/10) 1340 Jamie Ingie 1341 Norman Jamieson 1342 DISCONTINUED 18/05/10 1343 DISCONTINUED 22/11/10 1344 Michelle Jeremiah Fiocco’s (con-11/5/10) 1345 Ashley Jones 1346 Bodhi Jones Fiocco’s (con-11/5/10) 1347 Martin Jones 1348 DISCONTINUED 18/05/10 1349 Savo Katic Gibson & Gibson (3/12/10) 1350 Kosta Katsidis Gibson & Gibson (18/1/11) 1351 James Keene 1352 Paul Kelly Fiocco’s (con-11/5/10) 1353 David Kemp Gibson & Gibson (23/11/10) 1354 Joshua Klynsoon Fiocco’s (con-11/5/10) 1355 Milan Krstanoski 1356 Tonganu Kukutai Fiocco’s (con-11/5/10) 1357 Nathan Lake Fiocco’s (con-11/5/10) 1358 Daniel Lawrence Fiocco’s (con-11/5/10) 1359 Jeffrey Lawson 1360 Shane Leworthy Fiocco’s (19/11/10) 1361 Robin Lilly Gibson & Gibson (con-28/5/10) 1362 Charles Liness Gibson & Gibson – 23/11/10 1363 William Logan Fiocco’s (con-11/5/10) 1364 Christopher Luta Gibson & Gibson (con-28/5/10) 1365 Jason MacDonald Fiocco’s (con-11/5/10) 1366 DISCONTINUED 18/05/10 1367 Callum Malloch-Smith Fiocco’s (con-11/5/10) 1368 DISCONTINUED 18/05/10 1369 Cleopas Mashuta 1370 Craig Maxwell Fiocco’s (con-11/5/10) 1371 DISCONTINUED 18/05/10 1372 Dean McBride Fiocco’s (con-11/5/10) 1373 Craig McCartney 1374 Charles McClellan Fiocco’s (con-11/5/10) 1375 Duncan McDonald Fiocco’s (con-11/5/10) 1376 Ian McDonald 1377 Nicole McGinty 1378 Allan McKinnon Fiocco’s (con-11/5/10) 1379 Ross McMiles 1380 Alan McMillan Fiocco’s (con-11/5/10) 1381 DISCONTINUED 18/05/10 1382 Kenneth Mendoza 1383 DISCONTINUED 18/05/10 1384 Charles Miller Fiocco’s (31/3/11) 1385 Phillip Millington Fiocco’s (con-11/5/10) 1386 Benjamin Morcom Fiocco’s (con-11/5/10) 1387 Matthew Morehu Fiocco’s (con-11/5/10) 1388 DISCONTINUED 18/05/10 1389 DISCONTINUED 18/05/10 1390 Jeremi Musulin 1391 Glen Neal Fiocco’s (23/11/10) 1392 DISCONTINUED 18/05/10 Fiocco’s (con-11/5/10) 1393 Tim Nelson Fiocco’s (19/11/10) 1394 Justin Noakes Fiocco’s (con-11/5/10) 1395 Nowak Woyciech 1396 Aurelio Nunes 1397 Ashley O'Brien Fiocco’s (con-11/5/10) 1398 Tim Ogden 1399 Mao Ouk Fiocco’s (con-11/5/10) 1400 David Ovens Fiocco’s (con-11/5/10) 1401 DISCONTINUED 18/05/10 1402 DISCONTINUED 18/05/10 1403 DISCONTINUED 18/05/10 1404 Ben Penglase 1405 Joel Penglase Fiocco’s (con-11/5/10) 1406 Ashley Pickles Fiocco’s Lawyers 1407 Darryl Pickles 1408 Ryan Pickles Fiocco’s (con-11/5/10) 1409 John Pratt Fiocco’s (con-11/5/10) 1410 John Preston Fiocco’s (con-11/5/10) 1411 Colin Price 1412 Curtis Ransfield Fiocco’s (con-11/5/10) 1413 Gerald Ransfield 1414 Steven Reid 1415 Glen Robinson Fiocco’s (con-11/5/10) 1416 Paul Roche Fiocco’s (con-11/5/10) 1417 DISCONTINUED 18/05/10 1418 Rodrigo Ruiz Fiocco’s (con-11/5/10) 1419 Joseph Ryder 1420 Grgo Saric 1421 Moreno Serramono 1422 Jose Simoes 1423 Kenneth Simon Fiocco’s (con-11/5/10) 1424 Todd Sitnikoski 1425 Shelby Skinner 1426 Hamish Smith Fiocco’s (con-11/5/10) 1427 Mark Smith 1428 DISCONTINUED 18/05/10 Fiocco’s (con-11/5/10) 1429 Kurt Stellenburg 1430 Andrew Stevens Fiocco’s (con-11/5/10) 1431 DISCONTINUED 18/05/10 1432 Selina Stolp Fiocco’s (con-11/5/10) 1433 DISCONTINUED 18/05/10 1434 Wayne Sutherland Gibson & Gibson (6/12/2011) 1435 James Taylor Fiocco’s (con-11/5/10) 1436 Jeremy Teaia Fiocco’s (con-11/5/10) 1437 Shane Thomas Fiocco’s (19/11/10) 1438 Leslie Thompson 1439 Paul Todd Fiocco’s (22/12/10) 1440 Karl Travers Fiocco’s (22/12/10) 1441 Joshua Trunfio Fiocco’s (con-11/5/10) 1442 Herbert Tucker 1443 Angela Tumney 1444 DISCONTINUED 18/05/10 1445 Matthew Uepa Fiocco’s (con-11/5/10) 1446 Raul Uriona Fiocco’s (19/11/10) 1447 DISCONTINUED 18/05/10 1448 Andrea Vaega Fiocco’s (con-11/5/10) 1449 Christopher Van Arkel Fiocco’s (19/11/10) 1450 Liam Wakefield Fiocco’s (19/11/10) 1451 Michael Walker Fiocco’s (con-11/5/10) 1452 DISCONTINUED 18/05/10 1453 Alan Walker Fiocco’s (con-11/5/10) 1454 Simon Wallace
1455 Steve Waltl Gibson & Gibson (23/11/10) 1456 DISCONTINUED 22/11/10 1457 DISCONTINUED 18/05/10 1458 DISCONTINUED 18/05/10 1459 DISCONTINUED 18/05/10 1460 Rodney Williams Fiocco’s (con-11/5/10) 1461 Jason Wilson 1462 Daryl Wood 1463 John Wyllie Fiocco’s (con-11/5/10) 1464 Tyron Youlden 1465 DISCONTINUED 22/11/10 Gibson & Gibson (con-28/5/10) 1466 Matthew Young 1467 DISCONTINUED 18/05/10 1468 James Zauch 1469 Charles Bell Gibson & Gibson (con-28/5/10) 1470 Richard D'Costa 1471 Jarrad Garrick Fiocco’s (con-11/5/10) 1472 James Odlam Gibson & Gibson (6/12/2011) 1473 Colin Searle 1474 Joe Silk Fiocco’s (con-11/5/10) 1475 1522 DISCONTINUED 18/05/10
- AGLC
- United Group Resources Pty Ltd v Calabro (No 7) [2012] FCA 432
- Case
- [2012] FCA 432
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around the appropriate penalty to be imposed on the respondents for their involvement in the industrial action, taking into account the penalties agreed upon by the parties, and the factors that should guide the court in exercising its discretion. The court had to consider whether the penalties for represented and unrepresented respondents should differ and whether the penalties should be suspended. The court also had to decide if an injunction to prevent future breaches should be imposed and if such an injunction should be considered in the context of penalties and their suspension.
The court decided that a penalty agreement reached between the applicants and some of the respondents could be adopted, provided it was fair and reasonable. It determined that the penalties for represented and unrepresented respondents should be equal and that the penalties should be suspended, despite opposition from an industry regulator. The court found that imposing an injunction to prevent future breaches for a seven-year period was appropriate, but it should be considered in the context of penalties and their suspension. The court concluded that ordering costs for the intervener, the Australian Building and Construction Commissioner, would be punitive and contrary to the objectives of industrial legislation and the Federal Court Act 1976 (Cth).
The final orders included the imposition of suspended daily penalties for each respondent for each day they contravened certain sections of the Building and Construction Industry Improvement Act 2005 (Cth) and the Fair Work Act 2009 (Cth). The penalties varied depending on the specific contraventions. The penalties became payable if a respondent was found to have contravened the acts within seven years from the date of the orders. The court also restrained each respondent from engaging in certain actions related to building work on specific projects for a period of seven years, subject to certain exceptions. No order was made as to the costs of the proceeding.
Orders
Orders of the court
1. A suspended daily penalty of $1,300 be imposed on each respondent in respect of each day he or she contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) and s 417 and s 421 of the Fair Work Act 2009 (Cth) (FW Act).
2. A suspended daily penalty of $1,200 be imposed on each respondent in respect of each day he or she contravened s 38 of the BCII Act and s 421 of the FW Act.
3. A suspended daily penalty of $1,100 be imposed on each respondent in respect of each day he or she contravened s 38 of the BCII Act and s 417 of the FW Act.
4. A suspended daily penalty of $1,000 be imposed on each respondent in respect of each day he or she contravened s 38 of the BCII Act only.
5. A suspended daily penalty of $300 for respondents 817 and 825 in respect of each day they contravened both s 417 and s 421 of the FW Act but not s 38 of the BCII Act.
6. The penalties specified in orders 1, 2, 3, 4 and 5 above become immediately payable by a respondent in the event that he or she is found by a court to have contravened the BCII Act or the FW Act in respect of any conduct by that respondent at any time within seven years from the date on which these orders are made.
7. In the event that any penalties become payable in accordance with order 6 above, they be paid to the intervener.
8. Each respondent be restrained for a period of seven years from the date of these orders from doing any of the following whenever he or she is employed or otherwise engaged by any of the applicants:
(a) engaging in or being a party to or in any way associated with or otherwise involved in any of the following actions in relation to building work on the Pluto LNG Project, the North West Shelf Project or the Browse LNG Project including construction and operations, and any future expansions of those projects (Projects):
(i) failing or refusing to attend work on the Projects or failing or refusing to accept or perform work on the Projects at all;
(ii) performing work on the Projects otherwise than in accordance with the terms of his or her employment contract;
(iii) performing work on the Projects in a manner different from that in which it is customarily performed, or adopting any practice in relation to work on the Projects, the result of which is a restriction or limitation on, or a delay in, the performance of that work;
except where such actions:
(i) are authorised or agreed to by the respondent’s employer; or
(ii) are based upon the respondent’s reasonable concern about an imminent risk to the respondent’s health or safety and the respondent has not unreasonably failed to comply with the directions of the respondent’s employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the respondent to perform;
(b) interfering with or in any way disrupting the performance of work on the Projects by any of the following means:
(i) imposing, maintaining or aiding, abetting, encouraging, directing, procuring, inducing, advising or otherwise being involved in any bans, limitations, restrictions or delays on the performance of work or the acceptance of work by any of the applicants’ other employees to be performed under their terms of employment or in a manner which work is customarily performed with the applicants; and
(ii) imposing, maintaining or aiding, abetting, encouraging, directing, procuring, inducing, advising or otherwise being involved in the taking of days off by any of the applicants’ other employees otherwise than in accordance with rosters specified by the industrial instruments and employment contracts regulating their employment with the applicants.
Definitions
‘the Browse LNG Project’ means the project known by that name for the development, production and processing of petroleum and includes the off-shore and on-shore components of that project. The off-shore components of that project relate to the production of petroleum from the Brecknock, Calliance and Torosa fields located approximately 425 kilometres north of Broome, Western Australia and the on-shore components of that project relate to the on-shore processing of petroleum, currently anticipated to be located at James Price Point, near Broome, Western Australia.
‘the North West Shelf Project’ means the project known by that name for the development, production and processing of petroleum and includes the off-shore and on-shore components of that project. The off-shore components of that project relate to the production of petroleum from various fields located in the region approximately 130 kilometres north west of Karratha, Western Australia and the on-shore components of that project relate to the on-shore processing of petroleum at the Karratha Gas Plant in Karratha, Western Australia.
‘the Pluto LNG Project’ means the project known by that name or by the name Pluto LNG Development Project for the development, production and processing of petroleum and includes the off-shore and on-shore components of that project. The on-shore part of that project includes the construction of a single gas processing train and ancillary facilities between Onslow and the Burrup Peninsula in Western Australia.
‘building work’ has the meaning given to it by s 5 of the BCII Act and includes maintenance and commissioning work.
9. There be no order as to costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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