Wotherspoon v CFMEU

Case •

[2010] FMCA 184

•

22 March 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WOTHERSPOON v CFMEU & ORS [2010] FMCA 184
INDUSTRIAL LAW – Penalties for unlawful industrial action – whether within permissible range.
Building and Construction Industry and Improvement Act 2005, ss.37, 38, 49, 59, 69
Federal Magistrates Court Rules 2001, r.15.03
Crimes Act 1914 (Cth), s.4AA
Veen v The Queen (No 2) (1988) 164 CLR 465
CFMEU v Coal and Allied Operation (No 2) (1999) 94 IR 231
Applicant: JOHN MARK WOTHERSPOON
First Respondent: CONSTRUCTION, FORESTRY, MINING, & ENERGY UNION
Second Respondent: GARETH STEPHENSON
Third Respondent: HAROLD IAN SLATER
File Number: MLG 575 of 2009
Judgment of: Turner FM
Hearing date: 10 February 2010
Date of Last Submission: 10 February 2010
Delivered at: Melbourne
Delivered on: 22 March 2010

REPRESENTATION

Counsel for the Applicant: Mr Snaden
Solicitors for the Applicant: Freehills
Counsel for the Respondents: Mr Bandt
Solicitors for the Respondents: CFMEU

ORDERS

  1. That the penalties agreed between the parties are within the permissible range.

  2. That a penalty of $25,000.00 be imposed on the CFMEU for its contravention of s.38 of the Building and Construction Industry and Improvement Act 2005 (“the BCII Act”) on 30 April 2008;

  3. That a penalty of $5,000.00 be imposed on the second Respondent Stephenson for his of contravention of s.38 of the BCII Act on 30 April 2008;

  4. That a penalty of $1,000.00 be imposed on the third respondent Slater (wholly suspended for a period of 12 months from the date it is imposed, such that it shall only become payable in the event that he is declared, by a Court, to have contravened the BCII Act, or a Court imposes another penalty upon him on account of such a contravention in relation to conduct engaged in within that period) for his contravention of s.38 of the BCII Act on 30 April 2008; and

  5. That the penalties imposed on the first, second and third respondents be paid into the Consolidated Revenue Fund.

  6. That the Respondent within 28 days of 10 February 2010 pay the Applicant’s costs fixed at $4,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 575 of 2009

JOHN MARK WOTHERSPOON

Applicant

And

CONSTRUCTION, FORESTRY, MINING, & ENERGY UNION

First Respondent

GARETH STEPHENSON

Second Respondent

HAROLD IAN SLATER

Third Respondent

REASONS FOR JUDGMENT

  1. This matter involves an application by John Wotherspoon (an inspector appointed pursuant to s.59 of the Building and Construction Industry and Improvement Act 2005 (“the BCII Act”) against the Construction, Forestry, Mining and Energy Union (“the CFMEU”), and Gareth Stephenson (“Stephenson”) an employee and officer of the CFMEU and Harold Slater (“Slater”) a member of the CFMEU and an employee of Fulton Hogan Pty Ltd (“FHPL”).

  2. The Application alleges that FHPL is a constitutional corporation that was at all relevant times engaged in widening the Monash Freeway.

  3. The Application alleges that the respondents engaged in meetings and stoppages on an FHPL site on 30 April 2008 as a result which, employees of FHPL and others withdrew their labour and failed to perform their work for various periods on 30 April 2008.

  4. The application alleges that each respondent thereby engaged in “unlawful industrial action” (within the meaning of s.37 of the BCII Act).

  5. The Application alleges that pursuant to s.69 of the BCII Act the CFMEU is responsible for the conduct of the other respondents.

  6. The application seeks:

    a)The imposition of penalties on each respondent, pursuant to s.49(1)(a) of the BCII Act.

    b)An Order for costs against the respondents.

    c)An Order that any penalties imposed be paid into a Consolidated Revenue.

  7. By an Application in a Case filed on 27 August 2009 the applicant sought various Orders, involving an Order that the matter be set down for hearing submissions as to penalty on 10 February 2010. On


    8 October 2009 the Court made Orders including that the parties file a joint Statement of Agreed Facts by 20 November 2009 and that a hearing as to penalties occur on 10 February 2010.

  8. A hearing occurred on 7 December 2009, when an Order was made that unless by 14 December 2009 the parties file a Statement of Agreed Facts, orders will be made according to the minutes proposed by the applicant on 7 December 2009 as amended by the Court.

  9. A joint Statement of Agreed Facts was filed on 14 December 2009. It is agreed that the respondents committed the alleged breaches.

  10. It is agreed that the stoppages caused consequent delay and disruption to the road widening project on the Monash Freeway.

  11. It is agreed that neither Stephenson nor Slater have previously been declared to have breached any provision of the BCII Act, or had a penalty imposed by reason of such a breach.

  12. It is agreed that the CFMEU has been declared to have breached, and/or had penalties imposed upon it by reason of breaches of the BCII Act, on numerous occasions.

  13. It is agreed that the parties will jointly submit to the Court that the following Orders are appropriate.

    a)A penalty of $25,000.00 be imposed on the CFMEU for its contravention of s.38 of the BCII Act on 30 April 2008;

    b)A penalty of $5,000.00 be imposed on Stephenson for his of contravention of s.38 of the BCII Act on 30 April 2008;

    c)A penalty of $1,000.00 be imposed of Slater (wholly suspended for a period of 12 months from the date it is imposed, such that it shall only become payable in the event that he is declared, by a Court, to have contravened the BCII Act or that a Court imposes another penalty upon him on account of such a contravention in relation to conduct engaged in within that period) for his contravention of s38 of the BCII Act on 30 April 2008; and

    d)The penalties imposed on the first, second and third respondents be paid into the Consolidated Revenue Fund.

  14. At the hearing as to penalties the parties agreed that the Court decide the matter on the papers (Rule 15.03 of the Federal Magistrates Court Rules 2001).

  15. Section 49(2) of the BCII Act provides:

    The maximum pecuniary penalty is:

    (a)for a Grade A civil penalty provision—1,000 penalty units if the defendant is a body corporate and otherwise 200 penalty units; and

    (b)for a Grade B civil penalty provision—100 penalty units if the defendant is a body corporate and otherwise 20 penalty units.

    The maximum penalty that can be imposed on a defendant body corporate for a breach of s.38 of the BCII Act is 1000 penalty units. A penalty unit is $110.00 [s.4AA of the Crimes Act 1914 (Cth)] The maximum penalty for a breach of s38 by a body corporate is therefore $110,000.00; the maximum for a individual is $22,000.00.

  16. “The maximum penalty provided… should be reserved for the worst type of case falling within the relevant prohibition”. Veen v The Queen (No 2) (1988) 164 CLR 465 at 478.

  17. The Full Court of the Federal Court of Australia set out the approach to be taken to an agreement between the parties as to the quantum of penalty in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd 134 FCR 370 at [51] as follows;

    “(iii) There is a public interest in promoting settlement of litigation…


    (iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty…


    (vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at the precise figure in the absence of an agreement. The question is whether that figure is, in the Court’s view, 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 will be appropriate if within the permissible range.”

  18. “The BCII Act gives no explicit guidance as to the circumstances in which an order imposing a penalty… will be appropriate, or as to the circumstances in which a penalty of or near the maximum or alternatively of a lesser amount, may be called for. The Court is merely directed to consider what is appropriate in all the circumstances of the case.”CFMEU v Coal and Allied Operation (no 2) (1999) 94 IR 231 at 232.

    Having regard to the circumstances including that the parties are agreed on the quantum of penalties; that no financial loss has been quantified; the respondents have admitted the breaches in the Statement of Agreed Facts; the Court found the figures agreed on to be within the permissible range. The Court made that finding at the hearing on


    10 February 2010 and reserved these reasons for decision.

    Pursuant to s.49 of the BCII Act the Court imposed a penalty of $25,000.00 on the CFMEU for it’s contravention of s.38 of the BCII Act on 30 March 2008. The Court imposed the other penalties as agreed between the parties and set out above. The penalties are to be paid into Consolidated Revenue.

  19. The Court ordered that the respondents within 28 days


    (of 10 February 2010) pay the applicant’s costs of $4,400.00.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Turner FM

Deputy Associate: Erin Firns

Date:  22 March 2010

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