White v Construction, Forestry, Mining and Energy Union

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FEDERAL COURT OF AUSTRALIA

White v Construction Forestry Mining and Energy Union [2011] FCA 192

Citation: Michelle White v Construction Forestry Mining and Energy Union [2011] FCA 192
Parties: MICHELLE WHITE v CONSTRUCTION FORESTRY MINING AND ENERGY UNION AND OTHERS (ACCORDING TO THE SCHEDULE ATTACHED)
File number: VID 698 of 2009
Judge: KENNY J
Date of judgment: 7 March 2011
Catchwords: INDUSTRIAL LAW – penalty hearing – contraventions of ss 38 and 43 of the Building and Construction Industry Improvement Act 2005 (Cth) by respondents – contraventions admitted – agreed penalties – whether agreed penalties within permissible range
Legislation: Building and Construction Industry Improvement Act 2005 (Cth)
Cases cited: Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
CFMEU v Williams (2009) 262 ALR 417
Stuart v CFMEU (2010) 185 FCR 308
CFMEU v Cahill (2010) 194 IR 461
Australian Building & Construction Commissioner v CFMEU (No 2) [2010] FCA 977
Date of hearing: 7 March 2011
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 45
Counsel for the Applicant: Mr P O'Grady
Solicitor for the Applicant: Minter Ellison
Counsel for the Respondent: Mr Borenstein QC with Mr Dowling
Solicitor for the Respondent: Slater and Gordon

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 698 of 2009
BETWEEN:

MICHELLE WHITE
Applicant

AND:

 CONSTRUCTION FORESTRY MINING AND ENERGY UNION AND OTHERS (ACCORDING TO THE SCHEDULE ATTACHED)
Respondents

JUDGE:

KENNY J

DATE OF ORDER:

7 MARCH 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        In this Order:

(a)‘16 May 2008 Industrial Action’ means the industrial action by the Abigroup employees, who were members of the CFMEU identified in sub-paragraph 2(a) below:

(b)       ‘Abigroup’ means Abigroup Contractors Pty Ltd;

(c)       ‘Auburn’ means the Auburn Road compound on the Monash Project;

(d)      ‘Barrabool’ means the Barrabool Road compound on Geelong 3;

(e)‘BCII Act’ means the Building and Construction Industry Improvement Act 2005 (Cth);

(f)       ‘CFMEU’ means the First Respondent;

(g)       ‘De Goldis’ means the De Goldis Road compound on Geelong 3;

(h)‘Geelong 1’ means that part of the Geelong Project at the northern end of the Geelong Ring Road which is based at the compound at the corner of Plantation and Matthews Road, Corio;

(i)‘Geelong 3’ means that part of the Geelong Project at the Southern end of the Geelong Ring Road between Hamilton Highway and Princes Highway;

(j)        ‘Geelong Project’ means the project to construct the Geelong Ring Road;

(k)‘Glenferrie’ means the Glenferrie Road compound on the Southern Link Project;

(l)        ‘High Street’ means the High Street compound on the Monash Project;

(m)‘Loys Paddock’ means the Loys Paddock compound on the Southern Link Project;

(n)‘Monash Project’ means the project to upgrade the Monash Freeway between Toorak Road and Eastlink;

(o)       ‘Pigdon

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Details
Case
[2011] FCA 192
Decision Date

CaseChat Overview and Summary

In the case of White v Construction, Forestry, Mining and Energy Union, the applicant, White, sought penalties against several respondents who were members of the Construction, Forestry, Mining and Energy Union (CFMEU) for contraventions of sections 38 and 43 of the Building and Construction Industry Improvement Act 2005 (Cth). The contraventions related to unlawful industrial action and actions taken with intent to coerce Abigroup. The respondents admitted to the contraventions, and the court was tasked with determining whether the agreed penalties were within the permissible range.

The court considered several factors in assessing the penalties, including the lack of contrition, cooperation, deterrence, and the nature and extent of any loss or damage. The court found that the parties had agreed on an agreed statement of facts, the penalties to be imposed, and for the respondents to contribute to the applicant’s legal costs. The court noted that the cooperation of the respondents was a significant mitigating factor, and that deterrence was a relevant consideration in assessing penalty. The court further noted that the nature and extent of any loss or damage was not addressed in the statement of agreed facts and thus could not be given much weight.

After considering all the circumstances and the agreed facts, the court determined that the penalties agreed upon by the parties were within the permissible range. The court concluded that the agreed penalties sufficiently took into account the seriousness of the contraventions, the cooperation of the respondents, and the need for deterrence. The court made orders imposing specified penalties on each of the respondents, with each penalty to be paid into the Consolidated Revenue Fund by a certain date.

The court dismissed the application in all other respects, and the case concluded with the court confirming the agreed penalties as appropriate in the circumstances.

Orders

Orders of the court

1. In this Order:

(a) ‘16 May 2008 Industrial Action’ means the industrial action by the Abigroup employees, who were members of the CFMEU identified in sub-paragraph 2(a) below:

(b) ‘Abigroup’ means Abigroup Contractors Pty Ltd;

(c) ‘Auburn’ means the Auburn Road compound on the Monash Project;

(d) ‘Barrabool’ means the Barrabool Road compound on Geelong 3;

(e) ‘BCII Act’ means the Building and Construction Industry Improvement Act 2005 (Cth);

(f) ‘CFMEU’ means the First Respondent;

(g) ‘De Goldis’ means the De Goldis Road compound on Geelong 3;

(h) ‘Geelong 1’ means that part of the Geelong Project at the northern end of the Geelong Ring Road which is based at the compound at the corner of Plantation and Matthews Road, Corio;

(i) ‘Geelong 3’ means that part of the Geelong Project at the Southern end of the Geelong Ring Road between Hamilton Highway and Princes Highway;

(j) ‘Geelong Project’ means the project to construct the Geelong Ring Road;

(k) ‘Glenferrie’ means the Glenferrie Road compound on the Southern Link Project;

(l) ‘High Street’ means the High Street compound on the Monash Project;

(m) ‘Loys Paddock’ means the Loys Paddock compound on the Southern Link Project;

(n) ‘Monash Project’ means the project to upgrade the Monash Freeway between Toorak Road and Eastlink;

(o) ‘Pigdon’ means Pigdon Road compound on Geelong 3;

(p) ‘Redundant Employees’ means the Abigroup Employees whose position on Geelong 1 became redundant; and

(q) ‘Southern Link Project’ means the project to upgrade the Monash Freeway between the tunnels and Toorak Road.

2. A penalty of $105,000 be imposed upon the first respondent for:

(a) contravening s 38 of BCII Act on 16 May 2008 by engaging in unlawful industrial action, in that its members who were employees of Abigroup engaged in unlawful industrial action for one day at:

(i) Geelong 1;

(ii) Glenferrie; and

(iii) Loys Paddock.

(b) contravening s 43 of the BCII Act on 16 and 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i) employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project

(ii) allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

3. A penalty of $13,000 be imposed upon the second respondent for:

(a) contravening s 38 of BCII Act on 16 May 2008, by reason of his being involved in the 16 May 2008 Industrial Action; and

(b) contravening s 43 of the BCII Act on 16 and 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i) employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii) allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

4. A penalty of $5,000 be imposed upon the third respondent for:

(a) contravening s 38 of BCII Act on 28 May 2008 by engaging in unlawful industrial action at Pigdon for about 4 hours; and

(b) contravening s 43 of the BCII Act on 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i) employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii) allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

5. A penalty of $8,000 be imposed upon the fourth respondent for:

(a) contravening s 38 of BCII Act on 16 May 2008, by reason of his being involved in the 16 May 2008 Industrial Action at Geelong 1; and

(b) contravening s 43 of the BCII Act on 16 and 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i) employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii) allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

6. A penalty of $5,000 be imposed upon the fifth respondent for:

(a) contravening s 38 of BCII Act on 28 May 2008, by engaging in unlawful industrial action at Glenferrie for about 4 hours; and

(b) contravening s 43 of the BCII Act on 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i) employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii) allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

7. A penalty of $5,000 be imposed upon the sixth respondent for:

(a) contravening s 38 of BCII Act on 28 May 2008, by engaging in unlawful industrial action at DeGoldis for about 4 hours; and

(b) contravening s 43 of the BCII Act on 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i) employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii) allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

8. A penalty of $11,000 be imposed upon the seventh respondent for:

(a) contravening s 38 of BCII Act on 16 May 2008, by reason of his being involved in the 16 May 2008 Industrial Action at Glenferrie and Loys Paddock; and

(b) contravening s 43 of the BCII Act on 16 and 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i) employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii) allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

9. A penalty of $5,000 be imposed upon the eighth respondent for:

(a) contravening s 38 of BCII Act on 28 May 2008, by engaging in unlawful industrial action at Geelong 1 for about 4 hours; and

(b) contravening s 43 of the BCII Act on 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i) employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii) allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

10. A penalty of $5,000 be imposed upon the ninth respondent for:

(a) contravening s 38 of BCII Act on 28 May 2008, by engaging in unlawful industrial action at High Street for about 4 hours; and

(b) contravening s 43 of the BCII Act on 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i) employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii) allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

11. A penalty of $8,000 be imposed upon the tenth respondent for:

(a) contravening s 38 of BCII Act on 16 May 2008 by reason of his being involved in the 16 May 2008 Industrial Action at Glenferrie and Loys Paddock; and

(b) contravening s 43 of the BCII Act on 16 and 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i) employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii) allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project

12. Each of the penalties imposed upon the respondents in paragraphs 2 to 11 above be paid into the Consolidated Revenue Fund on or before 7 April 2011.

13. The application otherwise be dismissed.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It suffices to say that the parties agreed that the lack of contrition is not an aggravating circumstance that might increase the penalty. The respondents did not rely on contrition as a mitigating factor.Cooperation The parties agreed that the respondents have co-operated by agreeing on: (i) the agreed statement of facts; (ii) the penalties to be imposed; and (iii) to pay a contribution to the applicant’s legal costs. The parties agreed that the respondents’ co-operation obviated the need for a lengthy trial and the imposition on a number of potential witness of the requirement to attend court to give evidence. The respondents’ co-operation is a significant mitigating factor in the assessment of penalty. Deterrence Deterrence, specific and general, is to be taken into account in assessing penalty. The parties referred the Court to the relevant authorities. It is unnecessary in this case to refer to them specifically.The nature and extent of any loss and damage sustained as a result of the conduct The statement of agreed facts did not address the nature and extent of any loss and damage as a result of the respondents’ contravening conduct. It is not therefore a factor that can be given much, if any, weight. Other matters As the applicant noted in its written reply submissions given to me in court today, the written submissions of the parties disclosed that the applicant and the respondents held different views as to: whether provocation by Abigroup should be a discounting factor; the extent to which the CFMEU’s spending of time and money on the proceedings should be regarded as having already met some of the deterrence that is to be taken into account in fixing penalties. It is not, however, necessary for me to resolve these differences in this case. As indicated, I have had some regard to the positions of individual respondents, where relevant: see para [36] above. It is unnecessary for me to determine here whether a notion of provocation such as that adopted by Brooking J in Pearce (1983) 9 A Crim R 146 at 150 might have any part to play in assessing an industrial penalty. Rather, it suffices that, in this case, I have taken into account the whole of the circumstances disclosed in the statement of agreed facts, which include the agreed facts relied on in this connection by the respondents, as well as some agreed facts to which the applicant referred also in this connection.Disposition In all the circumstances of the case, having regard to the matters to which I have referred, accepted sentencing principles, including the level of the seriousness of the contravening conduct and deterrence, general and specific, and bearing in mind the parties’ agreement (which evidences the view of the regulatory agency), I am satisfied that the proposed penalties are within the permissible range. I would make the orders that the applicant seeks.