Other conclusions
24 I do not accept the unions' submissions that Mr Goring's conduct is irrelevant to penalty. It is part of the circumstances informing the objective seriousness of the contraventions. As I found in Alfred v Wakelin (No 2), Mr O'Connor's actions made the unions liable because of the context in which his actions were carried out. He was appointed the job representative or site delegate. Mr Goring knew the site was difficult. Mr Goring knew that Mr O'Connor was dissatisfied with the constraints placed upon him. Knowing all this, Mr Goring left Mr O'Connor in charge on site without giving Mr O'Connor or John Holland a copy of the unions' rules or limiting Mr O'Connor's apparent authority with respect to either John Holland or AWU and AWU-NSW members on site. Mr Goring did not make contact with Mr O'Connor despite a union member, Mr O'Reilly, having resigned in frustration with what he considered stupid conduct by the employees after the action between 15 and 18 October 2005 and being told that the employees (including, it must be inferred, AWU and AWU-NSW members) had gone on strike. In these circumstances the unions' present attempts to disassociate themselves from Mr O'Connor's conduct during the industrial actions are unpersuasive. Mr O'Connor was found to have taken "a leading role in the industrial actions on the site during October and November 2005" (Alfred v Wakelin (No 2) at [55(6)]). Further, and as noted in the same paragraph, the "conduct of other leaders (such as Mr Wakelin) who may have been even more active does not undermine the importance of Mr O'Connor's role". The same considerations inform the weight that should be given to the unions' description of the industrial action as "wildcat" industrial action. Despite this, it is true that this is not a case where any union official (in the sense of an employee of the union) actually knew and endorsed the taking of the industrial actions. All of these facts are relevant to the unions' culpability.
25 The unions admitted certain facts. Those admissions, however, related to matters about which there could be no real doubt given the available evidence. The unions contested liability and other factual matters. It is difficult to conclude that the unions' limited admissions saved any real time or expense. The fact that the hearing extended over three days (15 to 17 September 2008) supports this conclusion. I do not consider that the unions are entitled to any material discount on account of their admissions of fact. Those admissions cannot be equated to an admission of liability at an early time, which is likely to have genuine utilitarian value.
26 I accept that the unions' members made up a relatively small proportion of the overall workforce. I accept also that I cannot identify what effect Mr O'Connor's actions might have had on employees who were members of other unions beyond my finding that he (along with site delegates from other unions) took a leading role in the industrial actions, which resulted in all employees going on strike for three days in October and one day in November 2005. The unlawful industrial actions must have caused substantial inconvenience to John Holland, as well as loss (mainly in the form of increased costs to the mine owner). I do not accept the unions' submissions to the contrary. I accept, however, that the rough approximation of increased costs (about $196,000 in total) relates to the overall impact of the strikes, rather than the specific conduct of the unions. This is a factor (albeit not a major factor) that should be taken into account in determining penalty.
27 Furlong v Australian Workers' Union involved breaches after the industrial actions in this case. However, that matter became part of the AWU's record before penalty in the present case is determined. Bluescope Steel, equally, is part of the record of the AWU-NSW. However, despite those matters, I consider that the unions have good prior records.
28 I do not accept the unions' submissions about the limited relevance of deterrence in the present case. In Alfred v Wakelin (No 1) (at [40]) I said that "…there is no reason to treat liability attracted under s 69 [of the BCII Act] as necessarily of a different character or consequence for the purpose of making orders under s 49". I remain of this opinion. It is consistent with the main object of the BCII Act in s 3(1) ("to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole"). It is also consistent with the means by which that object is to be achieved as set out in s 3(2)(b), (c) and (d) in particular ((b) promoting respect for the rule of law, (c) ensuring respect for the rights of building industry participants, and (d) ensuring that building industry participants are accountable for their unlawful conduct).
29 The restricted scope of Mr Swan's evidence also supports this conclusion about the relevance of deterrence. As the applicant submitted, Mr Swan's expression of regret is limited. It does not extend to the circumstances which ensured that the unions could not avail themselves of the defence to liability in s 69(2) of the BCII Act (the taking of reasonable steps to prevent the industrial action). The unions could not make out that defence because of the circumstances referred to in [24] above. The unions have expressed no regret for those circumstances. This indicates that general and specific deterrence remain relevant considerations.
30 The steps taken by the unions to initiate co-ordinated training are commendable. However, and as the applicant submitted, Mr Swan's evidence discloses that the unions have not yet included training with respect to rights and responsibilities under the BCII Act. Nor have the unions yet made contact with the Australian Building and Construction Commission with respect to such training. The unions were found liable for the industrial actions in October and November 2005 in Alfred v Wakelin (No 2), delivered on 17 October 2008; it is now March 2009. Further, relevant training could have been provided long ago without any prejudice to the unions' defence of these proceedings.
31 I do not accept that no penalty should be imposed on the unions. That would be inconsistent with the objective seriousness of the contraventions and the unions' culpability for the commission of those contraventions. I also do not accept that the penalties should not exceed those in Alfred v Wakelin (No 1). The unions' submission that their culpability was of a lesser relative seriousness than that of the CFMEU failed to take into account a number of relevant factors. The CFMEU admitted liability relating to the November 2005 industrial action. The applicant did not press its case against the CFMEU with respect to the industrial action in October 2005. By the agreed facts between the applicant and the CFMEU, liability was limited to breach of s 38 of the BCII Act and did not extend to breaches of the certified agreement and, thus, the Workplace Relations Act. The agreed facts did not permit any finding to be made about the number of employees involved in the industrial action (see Alfred v Wakelin (No 1) at [33]). The question of penalty in the present case is to be determined in a different context. The unions defended all charges and were unsuccessful. They have been found liable for breaches of the BCII Act, the certified agreement and, thus, the Workplace Relations Act. Their liability relates to the industrial action in October and November 2005 (in circumstances where the action in October 2005 extended over three days). The evidence was also more extensive in the present case and enabled findings about the number of employees involved in the industrial actions, both in total and belonging to the AWU and the AWU-NSW. In other words, despite the common substratum of facts, the circumstances relevant to penalty in the present case bear little resemblance to those prevailing in Alfred v Wakelin (No 1).
32 I do not accept the applicant's submission that penalties at the higher end of the range are warranted. The penalty "must be proportionate to the gravity of the offence committed" (Hadgkiss v Construction Forestry Mining and Energy Union (No 5) [2008] FCA 1040 at [83]). The unions did take some steps in an (albeit unsuccessful) attempt to restrain Mr O'Connor. The steps were insufficient and not reasonable in all of the circumstances, but at least something was done. Employed officials of the unions did not have actual knowledge of, or endorse, Mr O'Connor's actions. The industrial actions were limited to three days in October 2005 and one day in November 2005. The actions were unlawful and unjustifiable but were not calculated to intimidate or maximise harm to John Holland. AWU and AWU-NSW members were a relatively small proportion of the overall workforce. Mr O'Connor did not act alone. Other union site delegates were also responsible for inciting the employees to take industrial action. These considerations indicate that a more moderate level of penalty is required than that for which the applicant advocated in order to reflect the seriousness of the breaches and the unions' culpability for them.