Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union

THE COURT DECLARES THAT:

1. The Second Respondent contravened section 500 of the Fair Work Act 2009 (Cth) ("the FW Act") on 28 July 2015 at the Parliament Square construction project in Salamanca Place in Hobart ("the Site") by acting in an improper manner by a) failing to provide notice of his entry, in contravention of section 487 of the FW Act; b) failing to enter on a day specified in such a notice, in contravention of section 490(3) of the FW Act; c) holding discussions with workers outside of mealtimes or other break times, in contravention of section 490(2) of the FW Act; and d) using foul language, whilst exercising a right of entry under section 484 of the FW Act to hold discussions with workers.
2. The Second Respondent contravened section 500 of the FW Act on 21 October 2015 at the Site by acting in an improper manner by a) failing to provide notice of his entry, in contravention of section 487; b) failing to enter on a day specified in such a notice, in contravention of section 490(3) of the FW Act; c) holding discussions with workers outside of mealtimes or other break times, in contravention of section 490(2) of the FW Act; and d) dismissively ignoring advice from site management that he should not be on the Site, whilst exercising a right of entry under section 484 to hold discussions with workers.
3. The Second Respondent contravened section 500 of the FW Act on 5 November 2015 at the Site by acting in an improper manner by a) failing to provide notice of his entry, in contravention of section 487; b) failing to produce an entry notice when asked to do so by site management, in contravention of subsection 489(2) of the FW Act; c) refusing to leave the Site when requested; and d) by using offensive language, whilst exercising a right of entry under section 484 to hold discussions with workers.
4. The Second Respondent contravened section 500 of the FW Act on 5 November 2015 at the Site by acting in an improper manner by directing unnecessary and gratuitous abuse to site management whilst exercising a State OHS right of entry under subsection 494(2) of the FW Act.
5. By reason of sections 550 and 793 of the FW Act, the First Respondent contravened section 500 of the FW Act by the conduct of the Second Respondent constituting the contravention the subject of the first declaration herein.
6. By reason of sections 550 and 793 of the FW Act, the First Respondent contravened section 500 of the FW Act by the conduct of the Second Respondent constituting the contravention the subject of the second declaration herein.
7. By reason of sections 550 and 793 of the FW Act, the First Respondent contravened section 500 of the FW Act by the conduct of the Second Respondent constituting the contravention the subject of the third declaration herein.
8. By reason of sections 550 and 793 of the FW Act, the First Respondent contravened section 500 of the FW Act by the conduct of the Second Respondent constituting the contravention the subject of the fourth declaration herein. THE COURT ORDERS THAT:
9. The name of the First Respondent be amended to "Construction, Forestry, Maritime, Mining and Energy Union".
10. The First Respondent pay a penalty of $45,000 in respect of its contravention of section 500 as declared in paragraph 5 above.
11. The First Respondent pay a penalty of $50,000 in respect of its contravention of section 500 as declared in paragraph 6 above.
12. The First Respondent pay a penalty of $50,000 in respect of its contravention of section 500 as declared in paragraph 7 above.
13. The First Respondent pay a penalty of $25,000 in respect of its contravention of section 500 as declared in paragraph 8 above.
14. The Second Respondent pay a penalty of $5,000 in respect of its contravention of section 500 as declared in paragraph 1 above.
15. The Second Respondent pay a penalty of $5,500 in respect of its contravention of section 500 as declared in paragraph 2 above.
16. The Second Respondent pay a penalty of $6,000 in respect of its contravention of section 500 as declared in paragraph 2 above.
17. The Second Respondent pay a penalty of $1,500 in respect of its contravention of section 500 as declared in paragraph 4 above.
18. The pecuniary penalties referred to in paragraphs 10 to 13 above be paid to the Commonwealth of Australia within 28 days of these orders being made to the Court.
19. The pecuniary penalties referred to in paragraphs 14 to 17 above be paid to the Commonwealth of Australia within 60 days of these orders being made to the Court.
20. The proceeding otherwise be dismissed.
21. There be no order as to costs. THE COURT DIRECTS THAT:
22. The Applicant serve these orders on: (a) the First Respondent in accordance with rule 10.04 of the Federal Court Rules 2011 (Cth); and (b) the Second Respondent in accordance with rule 10.01 of the Federal Court Rules 2011 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TRACEY J: 1 Last month I found that each of the respondents had committed contraventions of provisions appearing in Part 3-4 of the Fair Work Act 2009 (Cth) ("the FW Act"): see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case) [2018] FCA 1080 ("the liability judgment"). These reasons should be read in conjunction with those in the liability judgment. 2 The parties have since filed written submissions relating to pecuniary penalties and other relief sought by the Commissioner. 3 The Commissioner sought: declarations that Mr Richard Hassett and the Construction, Forestry, Mining and Energy Union ("the CFMEU") had each contravened s 500 of the FW Act on multiple occasions; the imposition of pecuniary penalties on each respondent; an order that those penalties be paid to the Commonwealth of Australia within 28 days; an order that Mr Hassett pay any pecuniary penalty imposed on him personally and that he not seek or receive financial reimbursement from the CFMEU of such penalty once paid; and that there be no order as to costs.

DECLARATIONS 4 The respondents did not make any submissions about the declaratory relief proposed by the Commissioner. 5 In a recent decision I have had occasion to hold that well-established principle justifies the making of declarations of the kind sought by the Commissioner in the present case: see Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 at [6]-[9]. 6 I adhere to what I there said. The declarations sought by the Commissioner in the present case should be made.

Quantum 7 The Court has power to impose pecuniary penalties if satisfied that a respondent has contravened a civil remedy provision: see s 546(1) of the FW Act. Section 500 of the Act is a civil remedy provision. The maximum penalties prescribed for a contravention of s 500 at relevant times was 300 penalty units (for a body corporate) and 60 penalty units (for an individual): see ss 539(2) and 546(2) of the FW Act. The value of a penalty unit at the time of the first contravention, on 28 July 2015, was $170. Thereafter the value increased to $180. As a result the maximum pecuniary penalty available for the first contravention by the respondent union is $51,000 and by Mr Hassett, $10,200. The maximum penalties for each of the later contraventions were $54,000 and $10,800 respectively: see s 12 of the FW Act and Crimes Act 1914 (Cth) s 4AA(1). The Court may order that any pecuniary penalty be paid to the Commonwealth: see s 546(3)(a).

Guiding principles 8 In The Bendigo Theatre Case (No 2) I summarised the principles which guide the Court in the determination of appropriate pecuniary penalties: see at [13]-[32]. I do not need to restate them but I record that I have had regard to them for the purpose of fixing penalties in the present case.

The number of contraventions 9 The Commissioner alleged and the Court has found that Mr Hassett had contravened s 500 of the FW Act on four occasions in 2015. Contraventions occurred on: 28 July 2015 (liability judgment at [16]-[19]); 21 October 2015 (liability judgment at [20]-[25]); and two occasions on 5 November 2015 (liability judgment at [28]-[29]). 10 Penalties must be imposed for each of these contraventions: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at 95, 99-100; [2017] FCAFC 133 at [128]-[130] and [148]-[149] (Dowsett, Greenwood and Wigney JJ).

Mr Hassett 11 Mr Hassett has not previously been penalised for contravening the FW Act or its predecessors. 12 He has not exhibited contrition for his offending conduct. Nor has he offered any assurances to the Court as to the propriety of his future conduct. 13 As will be seen he was reminded of the statutory requirements on the occasion of his site visit on 28 July 2015. Despite this he continued to fail to comply with the giving of notice and other requirements on his subsequent visits to the site during the year. I readily infer that this misconduct was deliberate. 14 Furthermore, when challenged by managers, he responded dismissively and, in some instances, by resort to foul and abusive language. 15 This misconduct, in each instance, was objectively serious, particularly having regard to Mr Hassett's status as a permit holder who could and should have been aware of his responsibilities under the FW Act. 16 As a permit holder he was required to give notice of his proposed entries to construction sites and to produce his permit upon request once on such sites. 17 On none of the occasions which are the subject of the present proceeding did Mr Hassett comply with these requirements. 18 On 28 July 2015 he visited the site for the avowed purpose of "talking to the blokes". When reminded that he had not given 24 hours' notice of his attendance and that he could only speak to the workers during meal breaks, Mr Hassett responded: "You can't fucking stop me." He remained on site and held discussions in the lunch room with at least two workers. As he was leaving the site he was again reminded of his obligations about giving notice and the timing of meetings. Again, he responded using foul language. 19 He was found (liability judgment at [78]) to have contravened s 500 by acting improperly in that he did not give the notice required by s 487 of the FW Act before coming on to the site, conducting discussions at times outside the range prescribed by s 490 and by using profane language. 20 Mr Hassett submitted that his misconduct on this day fell at the lower end of the spectrum of objective seriousness. He relied on the following matters: The two workers to whom he spoke were in a lunch room and were not engaged in productive work at the time he spoke to them. There was no evidence of any loss or damage arising from his conduct. The interactions between Mr Hassett and site managers were very brief and the managers were not materially distracted from their duties. There was no involvement by senior management of the union in the contravening conduct. 21 Even assuming the accuracy of these assertions these factors do little to mitigate the seriousness of the offending. 22 A penalty of $5,000 is warranted for this contravention. 23 Shortly after Mr Hassett entered the site on 21 October 2015 he said that he wanted to have a meeting with employees in the lunch room. When asked whether he had a right of entry for this purpose he said that he did not. He was then advised by a manager that the manager could not stop him conducting such a meeting but that Mr Hassett should not be on the site. He proceeded to the lunch room and conducted discussions with some of the workers. 24 He was found (liability judgment at [89]) to have contravened s 500 by failing to have given notice of his entry on this day, holding discussions with workers outside the prescribed periods and ignoring the advice that he should not be on the site. 25 Again Mr Hassett sought to characterise his misconduct as being of a low order of objective seriousness. He sought to rely on the fact that he had been told that the manager couldn't stop him being on site and had not told him to leave. Nor had the manager, in unequivocal terms, told Mr Hassett that he was not permitted to meet employees. The meeting had occurred in the lunch room. There was no evidence that the employees had lost productive work time or that the managers had been distracted from their duties. No economic loss had been sustained as a result of Mr Hassett's activities on the site. Senior managers of the union had not been involved in the contravening conduct. 26 Most of these factors do little to assist Mr Hassett's case. He had been told that he should not be on the site. He chose to ignore this advice. As a permit holder he should have been aware of the consequences of his failure to have given notice: see s 486 of the FW Act. Despite this advice he remained on the site and conducted discussions with some of the workers. There was no requirement for any of the managers to tell Mr Hassett, in unequivocal terms or otherwise, that he was not to meet with the workers. He should have been well aware that he had no entitlement to do so. 27 A penalty of $5,500 should be imposed for this contravention. 28 The first of the two contravening entries on 5 November 2015 occurred despite Mr Hassett being advised, earlier in the day, that he should not come onto the site without giving the required notice. After coming on to the site he said that he wanted to talk to the "blokes" about a rostered day off. The managers disputed his entitlement to do so. Nonetheless Mr Hassett proceeded to the lunch room. A manager asked him for a copy of a notice of entry. Mr Hassett failed to produce such a notice and was told to leave the site and that he would be trespassing if he remained. Mr Hassett's response was: "Fuck off". 29 He was found (liability judgment at [94]) to have contravened s 500 by entering the site without having given prior notice, failing to produce his permit on request and not leaving the site when requested to do so and by using profane language. 30 Mr Hassett submitted that his conduct on this first occasion on 5 November 2015 fell towards the lower end of the spectrum of objective seriousness. He said that his interaction with managers was short. No employees had been distracted from work while he was there. There was no evidence of economic loss being caused by his presence. Again, there was no involvement of senior union management. 31 The facts that he was only on the site a short period and had limited interactions with managers are really beside the point. He should not have been on the site in the first place and he should have complied with the requirements of the FW Act once he was on site. 32 This was a further deliberate failure to comply with the requirements of the FW Act. 33 A penalty of $6,000 should be imposed. 34 The second entry on that day had been made for the purpose of a safety inspection. The contravening conduct occurred as Mr Hassett was leaving the site following that inspection. He told one of the managers that he was a "fucking cunt". 35 This misconduct was found (liability judgment at [101]) to have contravened s 500. 36 Mr Hassett said that his swearing did not constitute one of the more egregious acts of impropriety which occur on building sites. 37 This was a one off, passing exchange. It was aggressive. It should not have happened. It was, however, by no means as serious as Mr Hassett's earlier misconduct at the site. 38 A penalty of $1,500 is appropriate. 39 The Commissioner has invited the Court to impose a personal payment order in respect of the penalties I have imposed on Mr Hassett. Such an order has been framed consistently with that made by the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117. Such an order would require Mr Hassett to pay the penalty imposed by the Court personally and not seek to be compensated by the CFMEU or accept any funds from the CFMEU which are related to his payment of the penalty. 40 The Commissioner sought to justify the making of the order by relying on two of the three considerations which had motivated the Full Court in imposing such an order in The Non-Indemnification Personal Payment Case. These were the long history of the CFMEU, acting through its officials, contravening provisions of the FW Act and its predecessors and its willingness to pay whatever penalty the Court may decide to impose. The second consideration was what was described (at [41]) as the "complete absence of any evidence of contrition or change of approach from either the [union] or the relevant official." 41 The significant difference between circumstances of The Non-Indemnification Personal Payment Case and the present case relates to the history of the offending of the two officials involved. The official in The Non-Indemnification Personal Payment Case had "a history of significant contravention": at [40]. Mr Hassett has never previously been penalised for a contravention of industrial legislation. 42 The Commissioner argued forcefully that, despite Mr Hassett's previous unblemished record, a personal payment order was necessary in order to deter him from future misconduct. There had been repeated contraventions of s 500 over a five month period despite Mr Hassett being reminded of his obligations to comply with requirements of the FW Act. Reliance was also placed on the absence of any expression of contrition by him or assurance that he would take corrective action. Reference was also made to a subsequent contravention of the right of entry provisions by Mr Hassett which has not yet been dealt with at a penalty hearing: see Australian Building and Construction Commissioner v Construction Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) [2018] FCA 1081. 43 As I observed in The Bendigo Theatre Case (No 2) at [66] a case could be made out on one reading of the Full Court's reasons that such orders could or should be made in all cases in which officials have been found to have contravened pecuniary penalty provisions of the FW Act. As I there said (at [67]) I do not think that the Full Court's reason are to be so understood. The Full Court in that case, as I have noted, gave particular weight to the contravening official's history of offending. 44 I am not persuaded that the Commissioner has made out a case for a personal payment order in the present case. I accept that Mr Hassett's conduct suggests the need for penalties to be imposed at a level which will deter further misconduct. It does not, necessarily, follow that a personal payment order is required as an additional deterrent for an official who has not previously contravened the FW Act. It is to be hoped that consideration of the Court's reasons and the imposition of the penalties in this case will cause Mr Hassett carefully to consider his responsibilities as a permit holder under the FW Act and not repeat the disgraceful conduct in which he engaged in the latter part of 2015. Any repetition may well be found to justify a personal payment order.

The CFMEU 45 The CFMEU's liability derives from that of Mr Hassett. 46 What I have said in The Bendigo Theatre Case (No 2) at [70]-[75] about the gravity of the union's ongoing offending applies with equal force in the present case. 47 I do not need to repeat what I there said. 48 The following penalties will be imposed on the union: 28 July 2015 contravention - $45,000. 21 October 2015 contravention - $50,000. The first 5 November 2015 contravention - $50,000. The second 5 November 2015 contravention - $25,000. 49 I have given effect to the totality principle in fixing these penalties, bearing in mind the considerations which I outlined in my reasons in The Bendigo Theatre Case (No 2) at [78]. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.