Section 556 of the FW Act
56 There was a dispute between the parties as to the application of s 556. Again, the dispute appeared, in large part, to be a matter of semantics, rather than one which has real implications in the context of this matter.
57 Section 556 of the FW Act is as follows:
If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct [emphasis added]
58 Section 556 is directed to preventing double punishment where particular conduct that has caused a contravention of a civil remedy provision gives rise to the contravention of another law of the Commonwealth in relation to that conduct. As such it has been applied so as to impose one penalty in respect of two contraventions when the two contraventions arose from the same conduct: for example, Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201; (2019) 272 FCR 290 at [14], [16], [29] and [31] (Hassett).
59 In Hassett at [14] and [16] the Court stated:
14 …Commonly and as is the fact in this case in relation to the contraventions of s 500, contravention of a civil remedy provision may be constituted by a range of conduct made up by a number of different acts or omissions. When a pecuniary penalty is imposed for a contravention, each of those acts or omissions involved in the contravention will be the subject of the pecuniary penalty if a pecuniary penalty is imposed. So much is recognised by the phrase "in relation to" in s 556. The purpose of that phrase is to make it clear that the provision is addressing "particular conduct" that is the subject of the penalty imposed, and not necessarily all of or the whole of the conduct for which the penalty was imposed. Where that particular conduct is the subject of a pecuniary penalty, s 556 requires that that particular conduct not be the subject of a further pecuniary penalty.
….
16 Hassett's refusal to get off the crane was relevantly the "particular conduct" for s 556 purposes. That particular conduct was part of and was subsumed by, the whole of the conduct the subject of the contravention of s 500. Where that particular conduct was the subject of penalty in relation to a contravention of s 500, s 556 precluded that particular conduct being the subject of a penalty in relation to the contravention of s 499 of the FW Act.
60 The applicant relied particularly on the recent decision of Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal) [2020] FCAFC 9; (2020) 274 FCR 19 where the Court considered the principles, and discussed inter alia, Hassett. At [32]-[38] the Full Court stated:
32 After judgment was reserved in this appeal, the parties drew our attention to the subsequent Full Court judgment in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201 (Hassett). That appeal concerns contraventions of ss 499 and 500 of the Fair Work Act. Its relevant factual background and the outcome before the primary judge were summarised by the Full Court as follows (at [6]-[9]):
6 … The respondent made allegations to the effect, and the appellants admitted, that on 5 June 2017, whilst in attendance at a construction site in Devonport, Tasmania:
(i) Hassett climbed on a crane whilst it was in operation;
(ii) Hassett refused a request of the occupier at the site to get off the crane (which request was reasonable because it was unsafe to be on the crane whilst it was being operated - that conduct is defined in the Amended Statement of Claim as the "5 June OHS Request"); and
(iii) Hassett used insulting language and engaged in abusive behaviour.
7 By reason of the conduct in (i), the appellants were found to have contravened s 499 of the [Fair Work Act]. By reason of the conduct in (i), (ii) and (iii), the appellants were found to have contravened s 500 of the [Fair Work Act].
8 The appellants contended before the primary judge that because Hassett's conduct that established the contravention of s 499 (refusing the reasonable request to get off the crane) was also an element of the contravention of s 500, s 556 applied and only one penalty could be imposed on each of the appellants in relation to that particular conduct.
9 The primary judge rejected that contention. At [48]-[50] of his Honour's reasons for judgment, the primary judge referred to the reasoning of Tracey J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1211 at [40]-[43], and in essence, concluded that the conduct constituting the contravention of ss 499 and 500 was not the same conduct for the purposes of s 556 because of the more expansive nature of the conduct constituting the contravention of s 500.
33 In concluding that the primary judge had erred, the Full Court addressed three issues as follows:
(1) the meaning of the expression "particular conduct" in s 556 of the Fair Work Act (at [12]-[16]);
(2) what is covered by the word "conduct" in s 556 (at [17]-[26]); and
(3) whether the penalties applied were appropriate to the two contraventions concerned (at [27]-[31]).
34 The third issue above is not pertinent for present purposes. On the first issue, the Court noted (at [15]) that the primary judge:
… construed s 556 as though "particular conduct" meant the whole of the conduct the subject of a contravention and a consequent pecuniary penalty. It was because the whole of the conduct relevant to the s 500 contravention was larger or more expansive than the conduct the subject of the s 499 contravention (Hassett's refusal to get off the crane), that his Honour concluded that s 556 was not engaged …
35 The Full Court considered his Honour had erred in this construction. It explained that error in the following terms (at [16]):
Hassett's refusal to get off the crane was relevantly the "particular conduct" for s 556 purposes. That particular conduct was part of and was subsumed by, the whole of the conduct the subject of the contravention of s 500. Where that particular conduct was the subject of penalty in relation to a contravention of s 500, s 556 precluded that particular conduct being the subject of a penalty in relation to the contravention of s 499 of the [Fair Work Act].
36 The reasoning the Full Court partly relied upon to reach this conclusion focused on the word "particular" in the expression "particular conduct" and the expression "in relation to", both of which appear in s 556. With respect to the latter, it observed (at [14]) that:
… The purpose of that phrase is to make it clear that the provision is addressing "particular conduct" that is the subject of the penalty imposed, and not necessarily all of or the whole of the conduct for which the penalty was imposed. Where that particular conduct is the subject of a pecuniary penalty, s 556 requires that that particular conduct not be the subject of a further pecuniary penalty.
37 On the second issue, the Full Court adopted the reasoning of Jessup J in The Australian Paper Case at [40] (Hassett at [18]-[19]) and rejected the respondent's argument based on common law principles of double jeopardy that his Honour's construction of s 556 was erroneous (at [20]-[25]). On this issue, the Full Court concluded (at [26]) that:
We respectfully adopt the construction of s 556 applied in The Australian Paper Case. Contrary to the submission advanced on behalf of the respondent and with respect to Jessup J, that construction is not plainly wrong, and in our view it is correct. It accords with the plain meaning of the words by which the section is expressed and also the underlying policy considerations to which we have referred. The "particular conduct" to which s 556 refers is the constituent act or omissions that a wrongdoer has committed - that is, what he or she (or it) actually did.
(Emphasis in original)
38 We do not accept that the same conduct was relevantly pleaded in support of both contraventions. To the contrary, the conduct pleaded in the paragraphs to which the appellants have referred is, in our view, materially different as between the two contraventions. Nor do we accept that the conduct constituting the contravention of s 494 was wholly subsumed in the conduct constituting the contravention of s 343. In our view, the primary judge was well aware that there were distinct and separate components of the conduct constituting each of those contraventions. So much is apparent from his Honour's conclusion at PJ [104] that the contraventions on 11 and 12 March 2015 should attract separate penalties because of "the very different conduct pursued by Mr Collier, in particular on 11 March 2015" and because "[t]he conduct on those two days was not the same 'particular conduct' for the purposes of s 556" (emphasis in original). At PJ [102], the primary judge demonstrated why that was so by summarising, by reference to various paragraphs of the liability judgment (LJ [159], [187] and [285]), the components of Mr Collier's conduct that constituted the contraventions of s 494 of the Fair Work Act, namely purporting to exercise a State or Territory occupational health and safety right on both sites on both days when he was not a permit holder under the Fair Work Act. His Honour then proceeded, at PJ [103], to contrast that conduct with the conduct constituting the contravention of s 343 by summarising, by reference to various separate paragraphs of the liability judgment (LJ [173], [179], [182], [234] and [289]), the very different conduct that constituted that contravention, namely engaging in coercive conduct at the Rhodes site on 11 March 2015 by parking a vehicle across Gate 3 at that site and thereby obstructing the entry of cement trucks to the site. The Commissioner is therefore correct in his contention that the conduct underpinning the two contraventions was distinct and did not constitute the same "particular conduct" as that term is used in s 556 of the Fair Work Act. In our view, nothing that the Full Court said in Hassett detracts from this conclusion. To the contrary, its treatment of the reasoning of Jessup J in The Australian Paper Case at [40] is entirely consistent with it.
61 The application of s 556 of the FW Act depends in each case on the facts and circumstances of the particular contraventions.
62 The applicant submitted that s 556 of the FW Act does not apply in this case because each of the contraventions in this case is directed to and, in substance, involves different conduct. In the case of the contraventions of s 417(1) of the FW Act, the relevant conduct relates to Stegic, Hopper, Edwards and the CEPU's involvement in the unlawful industrial action taken by the Nilsen Employees pleaded in the Amended Statement of Claim. In the case of the contraventions of s 500 of the FW Act, Stegic, Hopper and the CEPU's conduct relates not to their involvement in the Nilsen Employees taking the unlawful industrial action but a contravention of s 498 of the FW Act by entering the SMTF Site outside working hours and their conduct directed to Nilsen in preventing and opposing management efforts to address the employees. The applicant submitted that the admitted contraventions comprise separate and distinct conduct falling outside the application of s 556 of the FW Act.
63 The respondents challenged that submission by reference to the Amended Statement of Claim. The respondents also submitted that s 556 of the FW Act will apply where there is a degree of overlap between the particular conduct giving rise to separate contraventions, referring to Hassett at [26], which is as follows:
We respectfully adopt the construction of s 556 applied in The Australian Paper Case. Contrary to the submission advanced on behalf of the respondent and with respect to Jessup J, that construction is not plainly wrong, and in our view it is correct. It accords with the plain meaning of the words by which the section is expressed and also the underlying policy considerations to which we have referred. The "particular conduct" to which s 556 refers is the constituent act or omissions that a wrongdoer has committed - that is, what he or she (or it) actually did.
64 The respondents misread Hassett. In that case, the one contravention was wholly subsumed by a second contravention such that the subsumed contravention ought not to be the subject of a penalty. Paragraph [26] must be read in that context. The respondents submitted that factual scenario is not the case here, but rather, that there was some overlap between the offending. From that it was submitted that the penalties for each offence should be at the lower end of the range available.
65 The applicant submitted, by reference to the Amended Statement of Claim, that the relevant action which gives rise to a contravention of s 417 is the industrial action taken by the Nilsen Employees and the respondents being knowingly concerned in the action. The s 500 contraventions were said to be directed to different actions, including entering the site outside hours, preventing management speaking to the employees, as opposed to taking industrial action. The respondents submitted that although the Amended Statement of Claim is less than precise about the conduct that constituted each contravention, I should be satisfied that there is substantial overlap.
66 The submission does require close attention to the Amended Statement of Claim. Again, having to rely on the Amended Statement of Claim without the assistance of an agreed statement of facts has led to unnecessary difficulty. It is, as accepted by the parties, rather imprecise and has obvious limitations. That said, there does appear to be some overlap in the contraventions, although not as substantial as described by the respondents.
67 It is appropriate to recognise that the s 417 and s 500 contraventions, by their nature are directed to fundamentally different conduct. Section 417 of the FW Act is directed to organising or engaging in industrial action (including in an accessorial capacity). On the other hand, s 500 of the FW Act is directed to prohibiting a permit holder from exercising a right of entry from hindering or obstructing others or otherwise acting in an improper manner: see for example: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 549 at [37]. In this case both of the provisions have been contravened by Stegic, Hopper and the CEPU.
68 Section 556 of the FW Act does not preclude separate penalties being imposed for different conduct, and indeed, it was not suggested that it did so in this case.
69 To the extent there is any factual overlap given the drafting of the Amended Statement of Claim, it is a factor to be taken into account in assessing the relevant penalties to ensure there is no double penalty being imposed.