WHITE v CFMEU
[2010] FMCA 693
•21 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WHITE v CFMEU & ANOR | [2010] FMCA 693 |
| INDUSTRIAL LAW – FAIR WORK – Admitted contraventions of Building and Construction Industry Improvement Act – agreed statement of facts – application by respondents to give evidence through counsel from bar table – consideration of admissibility of such evidence – consideration of penalties to be imposed. |
| Building and Construction Industry Improvement Act 2005, ss.30, 38 Human Rights and Equal Opportunity Commission Act 1986 |
| Hogan v Reily [2010] FCAFC 30 Hardwick v Australian Manufacturing Workers’ Union [2010] FCA 818 Cruse v Construction, Forestry, Mining and Energy Union (2009) 182 IR 60 Veen v R (No.2) (1988) 164 CLR 465 Kelly v Fitzpatrick (2007) 166 IR 14 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 |
| Applicant: | MICHELLE WHITE |
| First Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Second Respondent: | ADRIAN MCLOUGHLIN |
| File Number: | MLG 862 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 14 & 20 July 2010 |
| Date of Last Submission: | 20 July 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 21 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Snaden |
| Solicitors for the Applicant: | Clayton Utz |
| Counsel for the Respondents: | Ms R Doyle SC |
| Solicitors for the Respondents: | Emma Walters |
THE COURT DECLARES THAT:
On Tuesday 19 February 2008 the First Respondent constituted by the Second Respondent contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) by imposing a ban on the performance of work by employees of Ward Strongforce Management Pty Ltd at the Alto Apartments building construction site located at 594 St Kilda Road, Melbourne between approximately 6.45 am and
8.30 am.
On Tuesday 19 February 2008 the Second respondent contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) by imposing a ban on the performance of work by employees of Ward Strongforce Management Pty Ltd at the Alto Apartments building construction site located at 594 St Kilda Road, Melbourne between approximately 6.45 am and 8.30 am.
AND THE COURT ORDERS THAT:
The First Respondent shall not later than 30 days from the date of this Order pay into the Consolidated Revenue Fund a pecuniary penalty of $38,500.00.
The Second Respondent shall not later than 30 days from the date of this Order pay into the Consolidated Revenue Fund a pecuniary penalty of $7,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 862 of 2009
| MICHELLE WHITE |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
First Respondent
| ADRIAN MCLOUGHLIN |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant seeks declaratory relief and the imposition of penalties upon both respondents for their admitted contraventions of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth) (“BCII Act”).
Although there are a number of sub issues, the primary matter of dispute is the level of penalty which should be imposed upon the respondents for this conduct. For the reasons that follow, I have determined that declaratory relief is unnecessary and that a penalty of 35 percent of the applicable maximum should be imposed upon each respondent, this being $38,500 in respect of the CFMEU and $7,700 in respect of Mr McLoughlin.
It should be noted that no submission was made by any party that percentages or penalty to be applied should be different as between each of the respondents, and I have adopted that methodology.
The agreed facts
The parties were able to provide to the Court a statement of agreed facts, which has been marked as exhibit A1. It is agreed between the parties that negotiations towards the production of that document commenced on 18 June 2010, and the document itself was executed by the parties’ representatives on 8 July 2010. What follows is largely a paraphrase of exhibit A1.
There is no issue as to any of what might be described as the formal matters, such as the entitlement of the applicant to bring the proceedings, the applicability of the BCII Act to the respondents, and the like.
I would only note for these purposes that Mr McLoughlin is admitted to have been at all relevant times an organiser for the CFMEU, an officer within the meaning of the BCII Act and a building industry participant within the meaning of the BCII Act.
As at 19 February 2008, a company called Brady Constructions Pty Ltd (“Brady”) was the head contractor in relation to the construction of the Alto apartment building at 594 St Kilda Road, Melbourne. The site was a very large one, and no objection was taken to the assertion by senior counsel for the respondents that it was a $45 million project.
On 15 February 2008, Mr Patrick Donnelly was informed by
Mr Anthony Brady (a director of Brady Constructions) that he would be working from 16 February 2008 as the occupational health and safety representative for the Alto site, the position of OH&S representative being vacant at that time. On 16 February 2008, Mr Donnelly attended the Alto site for his first day of work and went to a meeting of workers at the site, at which he was elected by the workers on the site as their OH&S representative.
At about 12.30 pm on 16 February 2008, Mr McLoughlin, in his capacity as an officer of the CFMEU, contacted Mr Donnelly by telephone. What took place is recorded in paragraph 12 of exhibit A1 in these terms:
“The substance of the conversation was that Mr McLoughlin would not recognise Mr Donnelly as OH&S representative at the Alto site and would call a meeting of employees at the Alto site before work commenced on Tuesday, 19 February 2008 to discuss the removal of Mr Donnelly from that position.”
Plainly, Mr McLoughlin proposed to attend before work and conduct his meeting, as I would infer, before work was due to commence at the normal start time of 7 am. Unbeknownst to him, however, because the day was forecast to be very hot, a concrete pour was scheduled by Brady to commence at 6.15 am so that it could be completed by about 11.30 am to avoid the heat. The completion of the concrete pour required steel fixing to take place, which was to be executed by employees of Ward Strongforce Management Pty Ltd (“Ward”), this fixing to be completed as the pour continued. The pour would commence in areas in which the steel fixing had been completed and would continue thereafter progressively until the entire work was finished.
At about 6.15 am on 19 February 2008, the Ward employees attended the Alto site to fix the steel as programmed and the concrete pour itself commenced at about 6.30 am. At that time, Mr McLoughlin arrived for the purposes of holding the foreshadowed meeting with workers to discuss the removal of Mr Donnelly as OH&S representative. He went to level 6, where the concrete pour was in progress.
Upon his arrival, Mr McLoughlin told the Ward employees who were in the process of fixing steel for the purposes of the concrete pour to leave the deck that they were working on and go down to the site shed for a meeting. In accordance with the direction of Mr McLoughlin, at about 6.45 am on 19 February 2008, the Ward employees stopped performing the steel work.
Shortly after this direction Mr Damien Milton, the Brady project manager for the site, went up to level 6 and asked Mr McLoughlin why he was directing the Ward employees to leave level 6. Mr McLoughlin told Mr Milton that the CFMEU would not accept Mr Donnelly as the OH&S representative for the site and that he would hold a meeting to remove him.
Mr Milton informed Mr McLoughlin that by stopping the Ward employees performing their work it would be necessary to stop the concrete pour. Mr McLoughlin continued to direct the Ward employees to leave level 6 and accompanied them as they left.
Mr Milton immediately took steps to protect the integrity of the concrete which had already been poured and to cease further concrete pouring. He took steps to have a stop end inserted and directed several contractors to complete the pour up to the point of the stop end. The contractors who were required to do this work were the concreting subcontractors (Speed Pro) and the concrete pumping contractors (Improved Concrete Pumping Services – “ICPS”). Based on his assumption that the ban would continue for some time, Mr Milton cancelled further concrete deliveries to the site until further notice and turned away three delivery trucks that were already in attendance at the site and awaiting discharge of their loads.
Soon after work stopped, Mr Milton requested Mr Brady to attend the site, which he did shortly thereafter. Whilst still at the site, Mr McLoughlin told Mr Brady that he would not leave the site until Mr Brady removed Mr Donnelly as OH&S representative.
Mr Brady and Mr McLoughlin then left the site for further discussions. The matter is recorded at paragraph 22 of the agreed statement of facts as:
“Mr McLoughlin, Mr Brady and for part of the time,
Mr Donnelly, went to a café near to the Alto site, where they discussed the possibility that, after four to six weeks, Mr Donnelly would go from the Alto site to a new site and Mr Brady would find a replacement OH&S representative for the Alto site. Following those discussions, Mr McLoughlin returned to the Alto site and directed the Ward employees to return to work. That was at about 8.30 am. The Ward employees then returned to the steel fixing work that they had ceased on level 6.”
It proved impossible to have the concrete pour resumed before about 11 am on the day. The pouring of the concrete on level 6 was completed at approximately 7 pm and the finishing works were completed at approximately 10 pm.
It is conceded that the actions outlined above had the following effects on the concrete pour (see paragraph 25 of statement of agreed facts):
a)Initial concrete deliveries were cancelled and later, fresh concrete was ordered,
b)The concrete pour was unable to be resumed until 11 am,
c)The concrete pour took longer than was scheduled to be the case had it taken place as scheduled early in the day before the heat,
d)Some workers remained on the Alto site for longer than was scheduled in order to complete the pour, and
e)Those workers were paid at penalty rates in respect of most of the additional hours worked.
It is also conceded (paragraph 26 of statement of agreed facts) that because of the delay to the concrete pour, Brady incurred additional costs including:
a)The waste and disposal of unusable concrete,
b)Steps that had to be taken to protect the integrity of the concrete which was poured prior to the industrial action,
c)Additional labour costs associated with the pour, and
d)Consequential labour costs for having workers on site for longer than the schedule.
The respondents admit that their conduct was such as to contravene s.38 of the BCII Act. The CFMEU, it should be noted, only contravenes s.38 of the Act by reason of the conduct of its officer, Mr McLoughlin. There is no suggestion that any other officer of the CFMEU had any knowledge of and/or involvement with the conduct of Mr McLoughlin, who acted solely on his own.
The facts - matters of disagreement
Mr Milton was called to give evidence and was cross-examined at some length. Most of the evidence he gave was either a more detailed account of the events of 19 February 2008, or was concerned with the effects of the interruption of work on that day, both in terms of costs that arose from it and delays alleged to have been caused in what was done on the day after. Despite the tenacity with which both parties pursued this aspect of the case, to my mind, what took place seems readily discernible, because it accords with common sense.
There were a number of Brady employees employed in this facet of the site upon the relevant day. Three of those persons had to be diverted to installing the stop end and, ultimately, two of them were sufficient to remove it. The process of installation took 20 to 30 minutes, and the process of removal took 20 minutes. Self-evidently, these workers would have been doing something else but for the interruption to the concrete pour and the necessity to insert the stop end.
The decision of Mr Milton to cease concrete delivery when the Ward employees walked off the job was eminently reasonable. He made it clear, if it was in doubt, that he had asked Mr McLoughlin how long the interruption was likely to be and had received no reply.
Furthermore, Mr Milton’s evidence that by 7 am when the point of the stop end was completed, the concrete was at the end of its useful life was clearly correct, and indeed he was not challenged as to this.
Not surprisingly, the people from ICPS and Speed Pro, whose jobs were wholly connected with the concrete pour itself, were not able to perform any useful work from 7 am until 11am when the concrete pour recommenced. The reason this took so long was because the concrete scheduled to be delivered to the Alto site was sent for other tasks and because of the difficulties with traffic. Once again, this is only what is too likely to occur when an unforeseen interruption of the sort that occurred takes place.
The pour was meant to finish at 11.30 am but, scarcely surprisingly, once they restarted at 11 am, they hit difficulties with the city traffic and the like.
As a result of the delays and the heat (the temperature did exceed 35 degrees at one point in the afternoon), pouring took until 7 pm to finish and levelling until 10 pm. Without the interruption, the pouring would have finished at 11.30 am and levelling by 2.30 pm at the latest.
It would seem that three Brady employees stayed until about 2.30 pm and three further employees until later.
Had the work been completed as intended, surveyors would have come onto the newly poured area later in the day with a view to inspecting the slab, setting out marks to enable work to proceed the following day (P-22).
Clearly, there were costs associated with the delay. Twenty-one cubic metres of concrete had to be disposed of as it was lost. There were additional charges by the concrete pourers in the sum of $1,852.50 (exhibit A5) and additional charges from Pronto who provided the concrete.
Much time was spent before the Court in argument as to what the precise quantum of loss could be said to be. One can say with certainty that it is nowhere near the wildly exaggerated estimate of about $76,000 given by Brady at an earlier point. It is not, in my view, easy to say exactly the quantity of direct costs that were occasioned nor is it necessary to do so. Clearly it was at least $6,334, the sum asserted by the respondents (paragraph 30, respondents’ written submissions). In my view it must, of course, have involved loss not only directly to Brady but also some measure of wastage of time on the part of those other workers such as Ward who sat around doing nothing for a not insubstantial period of time. Likewise, employees of Speed Pro, who were the concreters, whether it was 12 or as many as 16 as Mr Milton’s evidence suggested, had to stay back and work until 10 pm rather than 2.30 pm. There is no evidence, as far as I understand it, as to what direct financial loss this may have involved, but it is reasonable to infer that there must have been some.
Nonetheless, when taking the matter as a whole, particularly in the context of this very substantial project, the loss occasioned was small.
There were two other areas of factual controversy about the nature of the loss suffered by Brady.
The evidence shows convincingly in my opinion that, absent interruption, work on the completed section on level 6 would have commenced early on 20 February 2008. In a business where time is money, it is only reasonable to suppose that Brady would have been keen to progress matters.
Just how much delay was occasioned by the concrete pour interruption is not possible to ascertain with certainty, but on any view there must have been some measure of disruption (see Mr Milton’s evidence at
P-23, which I accept).
Another area, in my view more opaque, that involved debate was the question as to whether or not the interruption to the concrete pour made Brady liable to a contractual penalty for delay in completion of the contract. It appears that Brady may face, but does not as yet face, a claim amounting to $15,000 per day of late completion.
While it is quite possible that this delay, when taken in conjunction with other delays of like moment, may contribute towards the delay in practical completion which undoubtedly took place, in my view it is so uncertain that it is inappropriate to give it any weight.
To conclude on this aspect of the matter, therefore, the interruption to the concrete pour undoubtedly caused:
a)a measure of financial loss, not only to Brady Constructions but other parties;
b)inconvenience in the sense of time wasted, either performing duties that should not have been required such as the installation and removal of the stop end and/or sitting around waiting for work to recommence, and;
c)a measure of consequential delay of some, but not inordinate, moment to the normal progression of work that would otherwise have occurred.
Having considered the facts, it is appropriate now to deal with the various issues raised by the parties.
The intentions of Mr McLoughlin on the day
Both in the written and oral submissions made on behalf of the respondents, much was sought to be made of Mr McLoughlin’s motivation as to the matters which found their expression in the events of 19 February 2008. Putting the matter simply, it was submitted that Mr McLoughlin, as a CFMEU organiser vitally concerned with issues as to safety and with a passionate commitment in this regard, was doing no more than giving expression to that commitment. The applicant, by contrast, said that the evidence did not support this conclusion.
This issue itself raises a subsidiary issue, which as counsel informed me and I accept, has not been the subject of prior curial consideration, namely, the extent to which respondents can, in civil penalty proceedings such as these, put forward material either in writing or orally for which there is no evidence. As senior counsel for the respondents put it, the course of conduct the respondents sought to embark on is analogous to the manner of the adoption of plea material in criminal cases. It is, however, important to remember that these are civil proceedings. While it is true that because of the necessity to avoid infringing the rule against self-incrimination the Courts have developed a number of protections for respondents in proceedings of this sort, they are not criminal prosecutions. Equally it must be borne in mind that “it is a serious matter to conclude that a person has contravened a penal provision in legislation” (per Finn, Lander and Jessup JJ in Hogan v Reily [2010] FCAFC 30 at [18]).
It is also the case that in a very real sense both parties assist the Court and get the benefit of statements of agreed facts when these are produced. It would be disingenuous of the Court to ignore the fact that these statements of agreed facts represent the conclusion of what are tenacious bargaining processes between the parties. Both sides can reasonably be taken to have made no more concessions than were strictly necessary to achieve an agreement.
A statement of agreed facts in the main can be taken to govern the relevant considerations that the Court has been asked to consider.
It is not possible, in my view, to make blanket rulings to govern every future eventuality, but as a matter of first principles it would seem to me that a matter put forward by either party which contradicts in terms a matter in the statement of agreed facts must be inadmissible. Senior counsel for the respondents submitted that this might not always be the case, but I cannot at this stage envisage such an occurrence.
Further, whatever the practice may be in criminal proceedings, such practice has developed over a lengthy period of time and involves a number of conventions. Not having practised in any way extensively in the criminal jurisdiction, I can only make observations at that level of generality.
In proceedings such as these, however, it seems to me far more appropriate that material upon which the Court is asked to rely be properly put in evidence. Very frequently, insofar as such matters deal with issues wholly personal to the respondents, such as for example, their financial position and capacity to pay or their family circumstances where applicable, there would be never any desire for cross-examination. I note that CFMEU has in this case tendered its financial records without either objection or any desire for cross-examination.
Nonetheless, the underlying methodology of an agreed statement of facts is one designed to give the Court the proper materials upon which conclusively to dispose of the matters in issue. If it were to be attended by the acceptance of materials that are both contested and controversial, this would subvert in an entirely inappropriate way the benefits that the methodology is designed to produce.
I note that in Hardwick v Australian Manufacturing Workers’ Union [2010] FCA 818 at [17] Gordon J did not accept assertions by the CFMEU respondents which those respondents said were supported by the agreed facts in that case. Her Honour said:
“I do not accept that those agreed facts provide any basis on which to find that the offending conversation occurred….”
(Her Honour then set out the CFMEU respondents’ assertions that she rejected).
The circumstances of that case appear to have been different inasmuch as the respondents there were seeking to draw inferences from agreed facts rather than making assertions unsupported by evidence, but Gordon J’s approach in my respectful view seems to support the view I have expressed.
To return to the question of Mr McLoughlin’s intentions, I do not accept that there is admissible evidence that shows that Mr McLoughlin’s objections to Mr Donnelly were wholly and/or for that matter properly occasioned by a concern on the part of McLoughlin that Mr Donnelly was inappropriate to be the OH&S representative.
While there is no admissible evidence before me as to Mr McLoughlin’s commitment to safety matters, there is no earthly reason to doubt that he would have a strong and, very possibly, passionate commitment in this regard. It would be consistent with the role of an organiser in an industry where, tragically, injury and even death are not by any means unknown.
I accept that there is no admissible evidence before the Court as to the state of safety of the Alto site. An assertion to the effect that the Alto site was in some way unsafe or notorious is a serious matter that should, if it were to be pressed, be put on affidavit, and it has not been.
In any event, leaving that issue entirely to one side, the evidence simply does not support the proposition that the Court should regard it as more probable than otherwise that reservations about Mr Donnelly’s suitability as an OH&S representative were based solely on safety considerations.
What paragraphs 11 and 12 of the agreed statement of facts show is that on 16 February Mr Donnelly attended the site for his first day of work and was elected on that day as the OH&S representative for the site.
On the same day, Mr McLoughlin contacted Mr Donnelly and told him that:
“Mr McLoughlin would not recognise Mr Donnelly as OH&S representative at the Alto site and would call a meeting of employees at the Alto site before work commenced on Tuesday, 19 February 2008 to discuss the removal of Mr Donnelly from that position.”
It is of course possible that that objection was wholly based on safety considerations, but it does not follow that that is necessarily so.
Mr McLoughlin has not elected to give evidence about what his motivation was.
In paragraph 21 of the agreed statement of facts I note that
Mr McLoughlin told Mr Brady that he would not leave the Alto site until Mr Brady removed Mr Donnelly from his role as OH&S representative. From paragraph 22 I note that Mr McLoughlin, Mr Brady and, for part of the time, Mr Donnelly discussed the possibility that after four to six weeks Mr Donnelly would go from the Alto site to a new site and Mr Brady would find a replacement representative. Thereafter, Mr McLoughlin returned to the site and directed the Ward employees to return to work.
As I note from the evidence of Mr Milton, in fact Mr Donnelly stayed as the OH&S representative throughout the entirety of the project.
The fact that Mr McLoughlin was prepared to allow Mr Donnelly to continue as OH&S representative for four to six weeks, in circumstances where it was only a possibility that he might not continue thereafter, in my view militates strongly against the suggestion that Mr McLoughlin was solely or indeed at all motivated in his objection to Mr Donnelly by safety issues. Assuming in his favour, as I do, that Mr McLoughlin is passionately committed to safety issues, and assuming that his objection was to the effect that Mr Donnelly was not competent to perform the role allotted to him, it is inconceivable that he would have allowed him to continue for a period of that order in that role.
I do not know what was in Mr McLoughlin’s mind because he has elected not to tell me. What I am not prepared to do in these circumstances is assume in his favour the motive beneficial to him when in my view the evidence does not establish that conclusion.
The emphasis that the respondents seek to give to the case by the way in which they have dealt with Mr McLoughlin’s alleged views about safety, past safety record and the inter-relationship of this with his conduct on the day, casts a manifestly different light upon consideration of the events. It wholly distorts the neutral terms of the statement of agreed facts. It does so in a way which, had it been pressed prior to the hearing itself (or at the earliest upon the provision of the respondents’ written submissions shortly before the hearing) would certainly have given rise to further dispute. It was after all strongly resisted by the applicant at trial.
In the ultimate, the only finding I am prepared to make is that
Mr McLoughlin, for reasons known to him, which may or may not have been safety considerations, decided to attend the Alto site on
19 February 2008. His declared intention was to remove Mr Donnelly from the position of elected occupational health & safety representative, to which the workforce had elected him on 16 February 2008.
Mr McLoughlin was plainly prepared to do anything that he felt was appropriate to achieve his ends. This is capable of being consistent with a passionate concern for safety, but it is also consistent with a person who simply likes getting his own way and is cavalier about losses he may impose on third parties in doing so. This last observation would apply even if Mr McLoughlin’s motivation was as the respondents would have it.
Consideration relevant to penalty
I accept the submission of senior counsel for the respondents that
Mr McLoughlin’s conduct was spontaneous in one sense. After all, he was unaware it would appear that the concrete pour would be in progress when he arrived and he had previously sought to have his meeting and finish it before work started. Plainly his decision to interrupt the concrete floor occurred on the spur of the moment. Likewise, it was of relatively brief duration, although a stoppage of a concrete pour from 6.45 until 8.30 is not a wholly trivial amount of time.
I accept that no other threats or coercion were used by Mr McLoughlin, albeit that in the circumstances no others were necessary, and I accept that Mr McLoughlin’s actions were not part of a course of conduct.
I further accept that there is no suggestion that senior management of the union knew of or had any involvement in the conduct of
Mr McLoughlin.
So far as any prior contraventions are concerned, it is common cause that Mr McLoughlin has previously contravened s.30 of the BCII Act as recorded in Cruse v Construction, Forestry, Mining and Energy Union (2009) 182 IR 60. In that case Turner FM imposed a penalty of $11,000, half of which was suspended, and if he was not found to have breached a provision of the BCII Act before 1 May 2011 the second half of the penalty would not have been payable. I have noted the decision of Turner FM in that case which turned on slightly different facts, but in the end I am obliged to consider this matter on its own facts.
There has been no indication of any contrition by either respondent, nor has there been any indication that any form of training or other initiatives have been undertaken by the CFMEU to ensure that both its officers and/or particularly Mr McLoughlin do not commit further contraventions in the future. I note the financial reports of the union which have been tendered to the Court. I have had regard to the matters disclosed by those materials, but I note that neither in the case of the CFMEU nor that of Mr McLoughlin has there been any suggestion that they would be unable to pay any penalty that the Court might impose.
This leaves, as matters that are in my opinion relevant, only the questions of both specific and general deterrence.
In relation to both Mr McLoughlin and the CFMEU, it is apparent that there is a need to deter specifically. Despite being dealt with quite recently for a contravention of the BCII Act, and indeed been the subject of what in effect is a suspended penalty, Mr McLoughlin was not in any way deterred from clearly contravening the legislation again.
It is not necessary for me to enter into any consideration of the suspension of entry permit case relied upon by the applicant because it is clear on the material to which I refer that Mr McLoughlin needs yet further deterrence from conducting himself in this way.
Likewise I do not think it is in any sense necessary to become involved in any detailed analysis of the prior contraventions of both the BCII Act and other legislation by the CFMEU in its various manifestations, including both the Federal and State registered unions. It is sufficient to note that the CFMEU has contravened on numerous occasions in respect of industrial law.
These prior contraventions both by Mr McLoughlin and by the CFMEU do not, of course, warrant the imposition of a harsher penalty than would otherwise have been the case (Veen v R (No 2) (1988) 164 CLR 465).
In addition to specific deterrence there is a need for general deterrence in two senses. First, it is important that other officers of the CFMEU learn from Mr McLoughlin’s conduct and are persuaded not to repeat it. Second, the CFMEU is not the only union whose activities bring into play the BCII Act. It is desirable that there be general deterrence from conduct of this sort.
In detailing the above matters I have had regard to a number of the matters indicated in such cases as Kelly v Fitzpatrick (2007) 166 IR 14, per Tracey J, subject to the reservations expressed by Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [90]. I bear steadfastly in mind the observations of Giles J in A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [6]:
“… the discretion is at large. There are no mandatory statutory criteria and it is wrong to regard factors seen as relevant by one court as statutory criteria. Indeed, lists of factors can confuse an essentially straightforward task and lead to over-elaborate reasoning.”
In all the circumstances a balancing of all the above considerations (and that Mr McLoughlin will have to pay the suspended account ordered by FM Turner) leads me to the view that it is appropriate, as I indicated at the commencement of these reasons, to impose a penalty upon each of the respondents of 35 per cent of the applicable maximum.
The applicant seeks declarations. Senior counsel for the respondents submitted (P-77):
“there have been different trends in the court over time about whether such declarations are of any utility if they just repeat something from the statement of agreed facts in recite the section from the Act. It’s accepted though that the latest word appears to be contained in the decision on appeal in
Stewart v CFMEU.”
I accept that submission and in the circumstances of this case (and drawing on the judgment of Besanko & Gordon JJ in Stewart at [89]-[94] I will make the declarations per exhibit A9.
I note that the applicant has foreshadowed an application for costs in the event that she is successful. I will hear from the parties further as to how that issue should be resolved.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 21 September 2010
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