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

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining And Energy Union - [2018] FCA 1968 - FCA 2018 case summary — Zoe

[6]

THE COURT DECLARES THAT:

On 19 June 2013, the second respondent, an officer of the first respondent for the purposes of section 363(1)(b) of the FW Act, contravened section 355 of that Act when he threatened to organise a "blue" and pickets outside the gate to the Site, with intent to coerce McDow and/or BBA to not engage a particular independent contractor on the Project, namely Clifton Formwork (Vic) Pty Ltd.
On 19 June 2013, by the conduct of the second respondent referred to in the previous declaration and the operation of sections 363(1)(b) and 363(3) of the FW Act, the first respondent engaged in the said conduct with the said state of mind, thereby itself contravening section 355 of that Act.
On 6 February 2014, the second respondent, an officer of the first respondent for the purposes of section 363(1)(b) of the FW Act, contravened section 348 of that Act when he counselled various employees of OPT and Oz Fixing to engage in industrial action by remaining in the Site sheds and failing or refusing to perform any work, with intent to coerce McDow and/or OPT to comply with a lawful request of the first respondent to organise for employees of OPT and Oz Fixing to attend a CFMMEU manual handling training course.
On 6 February 2014, by the conduct of the second respondent referred to in the previous declaration and the operation of sections 363(1)(b) and 363(3) of the FW Act, the first respondent engaged in the said conduct with the said state of mind, thereby itself contravening section 348 of that Act.
On 6 February 2014, the second respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of the FW Act, by counselling various employees of OPT and Oz Fixing to engage in industrial action before the enterprise agreements by which they were covered had reached their nominal expiry dates, was within the meaning of section 550 of the FW Act, involved in contraventions of section 417(1) of that Act by the said employees of OPT and Oz Fixing, thereby himself contravening section 417(1) of that Act.
On 6 February 2014, by the conduct of the second respondent referred to in the previous declaration and the operation of sections 793(1) and (2) of the FW Act, the first respondent engaged in the said conduct with the said state of mind, thereby itself contravening section 417(1) of that Act.
On 6 February 2014, the second respondent, a permit holder within the meaning of the FW Act and an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of that Act, by exercising or seeking to exercise the right under section 484 of the FW Act to enter the Site for the purpose of holding discussions with various employees of OPT and Oz Fixing without giving an entry notice for the intended entry pursuant to section 487(1) of that Act, acted in an improper manner and thereby contravened section 500 of that Act.
In respect of the second respondent's contravention of section 500 of the FW Act referred to in the previous declaration, the first respondent: (a) engaged in the second respondent's conduct by operation of section 793(1) of that Act and thereby participated in that contravention; (b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting that contravention; (c) was accordingly knowingly concerned in that contravention within the meaning of section 550 of that Act; and (d) thereby itself contravened section 500 of the FW Act.
On 13 February 2014, the second respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of the FW Act, by counselling four employees of Rigweld to engage in industrial action before the enterprise agreements by which they were covered had reached their nominal expiry dates, was within the meaning of section 550 of the FW Act, involved in contraventions of section 417(1) of that Act by the said employees of Rigweld, thereby himself contravening section 417(1) of that Act.
On 13 February 2014, by the conduct of the second respondent referred to in the previous declaration and the operation of sections 793(1) and (2) of the FW Act, the first respondent engaged in the said conduct with the said state of mind, thereby itself contravening section 417(1) of that Act.
On 13 February 2014, the second respondent, a permit holder within the meaning of the FW Act and an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of that Act, by failing to produce for inspection a copy of his entry permit to either of two representatives of the occupiers of the Site (Peter Fraser and Innes Menke) upon their requests whilst exercising or seeking to exercise a State or Territory OHS right within the meaning of section 494(2) of the FW Act, acted in an improper manner and thereby contravened section 500 of that Act.
In respect of the second respondent's contravention of section 500 of the FW Act referred to in the previous declaration, the first respondent: (a) engaged in the second respondent's conduct by operation of section 793(1) of that Act and thereby participated in that contravention; (b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting that contravention; (c) was accordingly knowingly concerned in that contravention within the meaning of section 550 of that Act; and (d) thereby itself contravened section 500 of the FW Act.
On 13 February 2014, the second respondent, a permit holder within the meaning of the FW Act and an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of that Act, by refusing numerous directions from representatives of the occupiers of the Site (Lisa Ranftl, Innes Menke, Percy Jordan and Peter Fraser) to leave the Site whilst exercising or seeking to exercise a State or Territory OHS right within the meaning of section 494(2) of the FW Act, acted in an improper manner and thereby contravened section 500 of that Act.
In respect of the second respondent's contravention of section 500 of the FW Act referred to in the previous declaration, the first respondent: (a) engaged in the second respondent's conduct by operation of section 793(1) of that Act and thereby participated in that contravention; (b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting that contravention; (c) was accordingly knowingly concerned in that contravention within the meaning of section 550 of that Act; and (d) thereby itself contravened section 500 of the FW Act.
On 19 March 2014, the second respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of the FW Act, contravened section 494(1) of that Act when he exercised a State or Territory OHS right within the meaning of section 494(2) of the FW Act, in circumstances where he was not a permit holder within the meaning of that Act.
In respect of the second respondent's contravention of section 494(1) of the FW Act referred to in the previous declaration, the first respondent: (a) engaged in the second respondent's conduct by operation of section 793(1) of that Act and thereby participated in that contravention; (b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting that contravention; (c) was accordingly knowingly concerned in that contravention within the meaning of section 550 of that Act; and (d) thereby itself contravened section 494(1) of the FW Act.
On 1 April 2014, the second respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of the FW Act, contravened section 494(1) of that Act when he exercised a State or Territory OHS right within the meaning of section 494(2) of the FW Act, in circumstances where he was not a permit holder within the meaning of that Act.
In respect of the second respondent's contravention of section 494(1) of the FW Act referred to in the previous declaration, the first respondent: (a) engaged in the second respondent's conduct by operation of section 793(1) of that Act and thereby participated in that contravention; (b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting that contravention; (c) was accordingly knowingly concerned in that contravention within the meaning of section 550 of that Act; and (d) thereby itself contravened section 494(1) of the FW Act. (collectively, the Declarations)

[7]

The name of the first respondent in this proceeding be changed to the "Construction, Forestry, Maritime, Mining, and Energy Union."
The first respondent pay to the Commonwealth of Australia a penalty of $40,000 in respect of its contravention of section 355 of the Fair Work Act 2009 (Cth) as declared in paragraph 2 of the Declarations.
The first respondent pay to the Commonwealth of Australia a penalty of $40,000 in respect of its contraventions of sections 348, 417(1) and 500 of the Fair Work Act 2009 (Cth) as declared in paragraphs 4, 6 and 8 of the Declarations.
The first respondent pay to the Commonwealth of Australia a penalty of $40,000 in respect of its contravention of section 417(1) of the Fair Work Act 2009 (Cth) as declared in paragraph 10 of the Declarations.
The first respondent pay to the Commonwealth of Australia a penalty of $40,000 in respect of its contravention of section 500 of the Fair Work Act 2009 (Cth) as declared in paragraph 12 of the Declarations.
The first respondent pay to the Commonwealth of Australia a penalty of $40,000 in respect of its contravention of section 500 of the Fair Work Act 2009 (Cth) as declared in paragraph 14 of the Declarations.
The first respondent pay to the Commonwealth of Australia a penalty of $25,000 in respect of its contravention of section 494(1) of the Fair Work Act 2009 (Cth) as declared in paragraph 16 of the Declarations.
The first respondent pay to the Commonwealth of Australia a penalty of $25,000 in respect of its contravention of section 494(1) of the Fair Work Act 2009 (Cth) as declared in paragraph 18 of the Declarations.
The second respondent pay to the Commonwealth of Australia a penalty of $6,000 in respect of his contravention of section 355 of the Fair Work Act 2009 (Cth) as declared in paragraph 1 of the Declarations.
The second respondent pay to the Commonwealth of Australia a penalty of $6,000 in respect of his contraventions of sections 348, 417(1) and 500 of the Fair Work Act 2009 (Cth) as declared in paragraphs 3, 5 and 7 of the Declarations.
The second respondent pay to the Commonwealth of Australia a penalty of $8,000 in respect of his contravention of section 417(1) of the Fair Work Act 2009 (Cth) as declared in paragraph 9 of the Declarations.
The second respondent pay to the Commonwealth of Australia a penalty of $8,000 in respect of his contravention of section 500 of the Fair Work Act 2009 (Cth) as declared in paragraph 11 of the Declarations.
The second respondent pay to the Commonwealth of Australia a penalty of $8,000 in respect of his contravention of section 500 of the Fair Work Act 2009 (Cth) as declared in paragraph 13 of the Declarations.
The second respondent pay to the Commonwealth of Australia a penalty of $4,000 in respect of his contravention of section 494(1) of the Fair Work Act 2009 (Cth) as declared in paragraph 15 of the Declarations.
The second respondent pay to the Commonwealth of Australia a penalty of $4,000 in respect of his contravention of section 494(1) of the Fair Work Act 2009 (Cth) as declared in paragraph 17 of the Declarations.
The penalties in paragraphs 2-8 above are to be paid to the Commonwealth of Australia within 28 days.
The penalties in paragraphs 9-15 above are to be paid to the Commonwealth of Australia within 90 days.
The second respondent pay the penalties in paragraphs 9-15 above (Penalties) personally in that he not, whether before or after the payment of the Penalties: (a) seek to have or encourage the first respondent in any way whatsoever, directly or indirectly, to pay to him or for his financial benefit in any way whatsoever, any money or financial benefit referable to the payment of the Penalties, whether in whole or in part; and (b) accept or receive from the first respondent in any way whatsoever, any money or financial benefit referable to the payment of the Penalties, whether in whole or in part.
There be no order as to costs.

[14]

13 February 2014 17 On 13 February 2014 at around 6:45pm, Mr Myles entered the Site and convened and conducted what he described to Project representatives as a "union meeting" with four employees of Rigweld Holdings Pty Ltd (Rigweld) and Rob Smit (the night shift Health and Safety Representative on the Project), in the crib sheds off Newcomen Road behind the Site office on the Site. Having entered the Site, Mr Myles counselled or procured the four Rigweld employees to engage in industrial action within the meaning of s 19 of the FW Act, either by imposing a ban, limitation or restriction on the performance of their work or by failing or refusing to perform any work at all on their night shift that evening. 18 Mr Myles' entry to the Site was in response to a request for assistance from Mr Smit for the purpose of assisting Mr Smit. My Myles left the Site shortly after 7:00pm ended when the meeting ended. The four Rigweld employees also left the Site and did not commence or perform any work on their night shift that evening. The conduct of the four Rigweld employees was counselled or procured by Mr Myles. 19 At some time around or just after 8.00pm that night, Mr Myles re-entered the Site and proceeded around various areas of the Site in the company of Mr Smit. Again, Mr Myles entered the Site in response to a request for assistance from Mr Smit for the purpose of assisting Mr Smit. 20 Between around 8:30pm and 8:50pm, Mr Myles refused numerous directions from representatives of the Project to leave the Site, despite threats to call police. Mr Myles stated that he refused to leave until he had finished and that he had a job to do. 21 Mr Myles raised issues and questions about the safety of the emergency access to and egress from the stormwater sump/retention chamber and, in response to a statement from Peter Fraser that he (Mr Myles) was on the Site illegally, said that he (Mr Myles) was accompanying Mr Smit. 22 Around this time, Mr Fraser asked Mr Myles to produce for inspection a copy of his entry permit. Mr Myles refused or failed to produce his entry permit and said words to the effect of "I haven't got any ID, I'm not leaving the site, why don't you call the police - I'd love that". 23 Mr Menke also requested to see Mr Myles' entry permit and Mr Myles did not produce one. Mr Menke said to Mr Myles that if he could not show any documentation or reason for being there, then he would need to leave. Mr Myles said "I'm not going anywhere until I'm finished." 24 At around 9:00pm, the police were called and several Protective Services Officers attended the Site. After they spoke with Mr Myles, he left the Site.

[17]

The applicant's submissions 32 The applicant submitted that the CFMMEU is a highly experienced and skilled participant in the industrial arena, and that Mr Myles also has extensive experience in the industry and extensive experience in representational roles within it, including as an employed organiser of the CFMMEU. 33 It was submitted that: (1) each of the respondents "knew full well the vice of the contravening behaviour and chose to engage in it anyway"; (2) each of the contraventions is objectively serious, and the fact that the apparent consequences of some of the contraventions were more serious than others is of marginal relevance; (3) the statutory penalty for each and every contravention is the same, indicating that Parliament treats all of the relevant contraventions as equally serious; (4) all contraventions of the FW Act committed by recidivist contraveners such as the CFMMEU and Mr Myles are objectively serious because of that fact; and (5) it can be inferred that the repeated, unlawful behaviour of the CFMMEU's representatives is condoned at the very highest levels of management of the CFMMEU. 34 It was further submitted as follows: In any event, the contraventions of sections 348, 355 and 417(1) of the FW Act, involving threats of (or actual) coercive conduct and counselling industrial action by workers on the Project to secure industrial objectives pursued by Myles and the CFMMEU, is the antithesis of the scheme of the FW Act and the will of the Parliament. Coercion contraventions are "a particularly serious form of industrial (mis)conduct". As is now clear, the unlawful conduct that is the subject of this proceeding is but another example of the same modus operandi deployed by the CFMMEU and its officers (including Myles) on an exceedingly large number of previous and subsequent occasions. A small collection of judicial comments about the CFMMEU's penal history was recorded recently, including "dismal", "appalling" and "reveal[ing] a lamentable, if not disgraceful, record of deliberately flouting industrial laws" (to which can be added "disgraceful and shameful"). It must be met with pecuniary penalties with a sufficient deterrent effect. (Citations omitted.) 35 The applicant also adduced unchallenged evidence about the financial condition of the Construction and General Division Victoria/Tasmania Divisional Branch of the CFMMEU. It recorded revenue of $30,958,899 for the year ending 31 December 2016 and $6,620,150 for the 3 months from 1 January to 31 March 2017; and as at 31 March 2017, had net assets of $58,694,140 (including $9,384,326 of cash and cash equivalents). 36 It was further submitted that the CFMMEU therefore "has sufficient means to pay any penalties imposed by this Court. In fact, they are, unfortunately, simply a cost of the way in which the CFMMEU does business". 37 As to Mr Myles, it was submitted that "[i]n the absence of any evidence to the contrary, it can be inferred that the CFMMEU will itself also seek to pay the penalties imposed on [Mr] Myles, unless a personal payment order is made". 38 The applicant submitted that "[g]eneral and specific deterrence must play the primary (or sole) role in assessing the appropriate penalty in cases of contraventions of regulatory legislation, including the FW Act and that penalties must be fixed with a view to ensuring that the penalty is not such as to be regarded by the offender or others as an acceptable cost of doing business. The written submission continued (at [22]-[30]): The CFMMEU's penal record is well-established. Prior contravening conduct of the CFMMEU is set out in a table at Attachment B to this outline. [not reproduced in the documents annexed to these reasons] Contraventions of different industrial laws or by different branches or divisions of the CFMMEU in different States, are as a matter of principle, not irrelevant or of little relevance to the fixation of an appropriate penalty, merely because of that fact. Regrettably, unlawful conduct is "normalised" within the CFMMEU. The CFMMEU simply does not care about the law or the penalties imposed on it for its contraventions of it. The Court's repeated criticism of the CFMMEU's deplorable history of offending and its general approach to unlawful behaviour has not altered the CFMMEU's approach. This led recently to a Full Court penalising the CFMMEU with six maximum penalties, including some of which were "right of entry" contraventions with no discernible loss or impact to anyone. It is difficult to see why maximum penalties for the CFMMEU are not appropriate in this case either, involving equally (or more) serious conduct. More directly relevant to the fixation of appropriate penalties in this case are the CFMMEU's contraventions of industrial laws involving coercion and the right of entry provisions. In the table at Attachment B, over 50 of the proceedings involve contraventions of industrial laws involving coercion and about 20 involve contraventions of provisions within the "right of entry" regime. As the Full Court was right to do in The Broadway on Ann Case, when proper regard is had to the seriousness of the present contraventions in light of the CFMMEU's approach to the law and penalties and having regard to the centrality of deterrence (both specific and general), each and every new contravention must be properly seen as sufficiently grave so as to warrant the maximum penalty available. Turning to Myles, no different considerations apply. Myles has a terribly long record, although not as inordinately long as that of the CFMMEU. Prior to the imposition of his most recent penalties (of $19,500), Myles was described as having a "deplorable personal history of offending". Prior contravening conduct of Myles is set out in a table at Attachment C to this outline, totalling in excess of $136,000 in penalties levied on Myles personally. Much of that misconduct involves similar contraventions and similar behaviour to that in issue in this case (coercive threats/conduct, counselling or procuring work stoppages and improper behaviour whilst exercising rights of entry). General deterrence has a significant role to play in the penalties imposed by the Court upon Myles, being an employee and officeholder of the CFMMEU. Any penalties imposed on Myles need to be effective to act as a general deterrent to any other CFMMEU officer or delegate and to show that significant penalties will be imposed, irrespective of whether the conduct is ordered, supported or condoned by the CFMMEU (as their employer). As for specific deterrence, Myles is still an employed organiser of the CFMMEU. He has further, ongoing opportunity to contravene the FW Act and the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), by acting as one of the CFMMEU's institutionalised human agents and he has an extensive record of prior offending. The need for specific deterrence is also high and any penalties imposed on him should be at (or close to) the maximum also. (Citations omitted.)

[21]

13 February 2014 42 At [24]-[28] the following submission was made: While it is admitted that Mr Myles acted unlawfully on 13 February 2014, the seriousness of his unlawful conduct must be assessed against the relevant context of his entry to the Site being for the purpose of rendering aid in response to a request from an health and safety representative. Mr Myles has admitted to three contraventions of the FW Act for his conduct on this day, being: (a) one contravention of s 417(1); (b) one contravention of s 500, by reason of his failure to show his permit; and (c) one contravention of s 500, by reason of his multiple refusal[s] to leave the Site. When assessing the penalties for the s 500 contraventions, the Court should treat the contraventions as forming part of a course of conduct. Section 557 - which is not relevant to this contravention - does not "cover the field" in relation to the fixing of penalty. While the course of conduct principle does not permit the fixing of a single penalty, where the contraventions arose out of a course of conduct, the penalties imposed in relation to the contraventions should generally reflect that fact, otherwise there is a risk that the respondent will be doubly punished in respect of the relevant acts or omissions that make up the multiple contraventions. Where there is an interrelationship between the legal and factual elements of a number of contraventions, a person who has engaged in such contravening conduct should not be penalised more than once for a single course of conduct. It is open to the Court to adopt this approach in this case. That is, the Court may issue two penalties and moderate the penalty on the basis that the relevant conduct formed part of a "course of conduct". The contravening conduct happened during a single entry to site and formed part of a continuous sequence of events. The contraventions are intimately connected with the manner in which Mr Myles entered the Site and the question of whether he was permitted to enter the Site pursuant to the request from Mr Smit and to thereafter remain on the Site. They cannot be separated from each other. The appropriate penalty is a mid-range penalty [cumulatively].

[22]

19 March 2014 and 1 April 2014 43 At [32]-[34] the following submission was made: It can be inferred from the SOAF that Mr Myles believed he was entitled to enter the premises in response to a request for assistance from Mr Castles. If that is so, it must be accepted that Mr Myles did not deliberately contravene the Act. Contrary to the submissions of the Commissioner, there is no basis to say that Mr Myles "well knew" the vice of his conduct and proceeded to act in the face of that knowledge. The material in the SOAF identifies that Mr Myles in fact believed that he was entitled to enter the Site. The penalty should, for each of these days, be at the lower end of the range. It can be inferred from the SOAF that Mr Myles believed he was entitled to enter the premises in response to the requests for assistance from Mr Castles. It can equally be inferred that Mr Myles did not deliberately contravene the Act. He believed, wrongly, that he was entitled to enter the premises when requested to do so by an occupational health and safety representative. Contrary to the submissions of the Commissioner, there is no basis to say that Mr Myles "well knew" the vice of his conduct and proceeded to act in the face of that knowledge. Further, it is also relevant that Mr Myles was entering for a safety purpose. He was responding to a request for assistance from an elected occupational health and safety official. Contrary to the submissions of the Commissioner, it is highly relevant that there is no evidence of any loss or damage being suffered on either day as a result of Mr Myles' conduct. Nor is there any evidence of any disruption to work. These contraventions should be seen as technical contraventions, committed unknowingly and in the context of the good faith exercise of powers in relation to safety concerns on the Site. These factors are sufficient to warrant the imposition of a penalty at the lower end of the range for these two dates. 44 The respondents' submissions with respect to the CFMMEU were as follows (at [35]-[38]): As to the CFMMEU, its previous history of contraventions, while relevant, cannot be allowed to obscure the contravention for which it is being penalised. While its history is relevant, the penalty must nonetheless be appropriate having regard to all of the circumstances of the particular contravention. This was acknowledged in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191. There, the Court was dealing with an appeal from a single judge at first instance on the questions of both liability and relief. The Full Court upheld the appeal on liability and accordingly it was not necessary to deal with the appeal against the penalty imposed. However, the Full Court found that, was it necessary to do so, it would have found that the imposition of the maximum penalty of $51,000 was manifestly excessive. The Court observed that it "is difficult to escape the conclusion that the "recidivism" to which the primary judge referred was not merely a factor in giving a penalty at the high end of an appropriate response to the contravention, but in substance there was punishment for past conduct". The approach that was disapproved by the Full Court is the approach that the Commissioner urges upon the Court in this case. The Commissioner's submissions make do not engage with the facts. They do not assist the Court to determine the objective seriousness of the contraventions nor do they assist the Court to determine the "appropriate response" to the contraventions. Rather, the Commissioner's submissions are primarily focused on the CFMMEU's history of contraventions. Those submissions do not assist the Court. For the reasons given above, the contraventions in this case, with the exception of the events of June 2013, all occurred in the context of Mr Myles being invited on Site by a statutory office holder in response to safety concerns. There is no evidence that they formed part of any larger industrial campaign or strategy, nor that the CFMMEU's senior management directed or counselled the conduct. Further, as set out above, in relation to at least two of the offences, Mr Myles believed that he was lawfully entitled to enter the Site. In relation to those days (19 March 2014 and 1 April 2014) there is no evidence of any loss, damage, harm or inconvenience caused by the technical breaches of s 494(1) of the FW Act. The CFMMEU's history of contraventions cannot be allowed to obscure that these contraventions are technical contraventions that should be penalised appropriately. The appropriate balance between the nature of the penalties and the CFMMEU's history of contraventions is for a mid-range penalty to be imposed. (Citations omitted.) 45 Counsel for the applicant submitted that "Of course [Mr Myles] can't turn up and say, 'I'm here because I want to stop your job.' But to use safety as a cover and justification for entry, which is perfectly lawful, and then once there behave unlawfully, manifests a vice of a higher order, in our submission, because it provided him with a lawful opportunity to behave unlawfully".

[23]

Correct approach to assessment of penalties 46 In my view, the question of the assessment of penalties is to be approached consistently with the joint judgment of the Full Court (comprised of the Chief Justice, White J and myself) in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 (The Non-Indemnification Personal Payment Case) in particular at [22], viz: The overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct. The history of contravention is to be taken into account in fixing the proper level of penalty for the proportionate response to the contravention in question. Proportionality has within it the need to characterise the seriousness of the contravention. Proportionality of penal response to a contravention assessed by reference to its seriousness and gravity is an essential characteristic of the application of the statute. The penal response is for that contravention, not earlier contraventions: Veen v The Queen [No 2] (1988) 164 CLR 465 at 477-478. Prior contraventions may reveal an apparent disregard for the Act and the need for deterrence by a penalty at a level appropriate to achieve that objective. It is to be borne in mind, however, that it is for the conduct in question that the penalty is imposed, not for prior conduct. 47 To the extent that the submissions of the applicant suggested that the judgments of the majority in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 may be read to suggest otherwise, I respectfully disagree. 48 It is, of course, necessary to have regard to the maximum penalty, but it is but one (although one very important) yardstick. 49 As the Full Court said in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at 63 [154]- [156] (quoted in The Non-Indemnification Personal Payment Case at [26]): In considering the sufficiency of a proposed civil penalty, regard must ordinarily be had to the maximum penalty. In Markarian, a criminal sentencing context, it was observed at [31] that: careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. The reasoning in Markarian about the need to have regard to the maximum penalty when considering the quantum of a penalty has been accepted to apply to civil penalties in numerous decisions of this Court both at first instance and on appeal (Director of Consumer Affairs, Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118 at [43]; Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52; (2014) ATPR 42-470 at [50]- [52]; Setka v Gregor (No 2) [2011] FCAFC 90; (2011) 195 FCR 203 at [46]; McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29; (2011) 202 IR 467 at [28]- [29]). As Markarian makes clear, the maximum penalty, while important, is but one yardstick that ordinarily must be applied. Care must be taken to ensure that the maximum penalty is not applied mechanically, instead of it being treated as one of a number of relevant factors, albeit an important one. Put another way, a contravention that is objectively in the mid-range of objective seriousness may not, for that reason alone, transpose into a penalty range somewhere in the middle between zero and the maximum penalty. Similarly, just because a contravention is towards either end of the spectrum of contraventions of its kind does not mean that the penalty must be towards the bottom or top of the range respectively. However, ordinarily there must be some reasonable relationship between the theoretical maximum and the final penalty imposed. 50 With those principles in mind, I now turn to consider the appropriate penalties in respect of the (admitted) contraventions.

[26]

13 February 2014 58 The respondents submit that entering and leaving the site once, and then doing the same again, on 13 February 2014 should be taken to constitute a single contravention within the meaning of s 557 of the FW Act. Counsel submitted as follows in oral argument: Mr Myles entered the site at 6.45 and conducted the union meeting. He left the site at 7 and motioned for the employees to join him, which they did. And at around or just after 8 o'clock he re-entered the site and proceeded around various areas of it in the company of Mr [Smit] - Mr [Smit], of course, being the health and safety representative who had sought his assistance … It all happened, your Honour, as part of a continuous chain of events. The request for assistance, the meeting with the workers, the workers leaving the site, Mr Myles leaving with them, and then Mr Myles re-entering the site and inspecting it in the company of the Occupational Health & Safety representative, and thereafter engaging with the relevant officials. It is not the case that these are unrelated pieces of conduct. It all happened as part of one continuous sequence of events, and in that context, knowing that Mr Myles has gone on site for the purpose for which he went on site, we say that it is open to your Honour and that your Honour should accept that it does form part of a course of conduct. 59 As noted above, Mr Myles has admitted to three contraventions of the FW Act for his conduct on this day, being one contravention of s 417(1); one contravention of s 500, by reason of his failure to show his permit; and one contravention of s 500, by reason of his multiple refusals to leave the Site. 60 The proper function of the phrase "course of conduct" in s 557 in circumstances such as this is to ensure that, having regard to the circumstances (factual and legal), a party is not penalised twice for the same conduct: see The Non-Indemnification Personal Payment Case at [31] and the cases there cited. But here the two entries to the site are self-evidently not relevantly the same conduct. They are two contraventions of the same type that occurred on the same day. I do not therefore accept that the respondents will be "doubly punished". In my view, the three contraventions relating to the two separate entries and the further breach of s 471(1) should be dealt with separately. A penalty must therefore be imposed for each of the three contraventions. 61 I will impose a penalty of $40,000 on the CFMMEU for each of the three contraventions on 13 February 2014 (a total of $120,000). 62 I will impose a penalty of $8,000 on Mr Myles for each of the three contraventions on 13 February 2014 (a total of $24,000).

[29]

Personal Payment Order 68 The applicant seeks a personal payment order against Mr Myles. The respondents opposes it, for reasons that counsel put in the course of her oral submissions in these terms: … that's my point about when we are assessing behaviour, we need to put it in its proper temporal context; and we have now the burden of the personal payment order that was made and the opprobrium that goes with it, your Honour, and the short point is that when you put those two things together, an absence of any determined contraventions relating to conduct later than 1 March 2015 in the context of this conduct having happened earlier than that, and the fact that he has now felt the burden of a personal payment order - it's appropriate for an opportunity to be given to allow Mr Myles through continued conduct to demonstrate that his behaviour has changed. And we say it wouldn't simply follow, because a personal payment order was made against Mr Myles in the past, that one should be made in the present case. They are a form of order that has a particular burden for an individual, and in circumstances where nothing can be pointed to to demonstrate that Mr Myles has continued to engage in contravening conduct after 1 March 2014, it is not necessarily the case that an order of this kind should be made in this proceeding, and in fact Mr Myles should be given the opportunity to demonstrate that he has felt the effect and the burden of that personal payment order, and has changed his behaviour. 69 But in the absence of any evidence about the asserted burden and opprobrium, to say nothing of evidence about contrition, I do not accept that those matters should weigh in the balance. 70 In The Non-Indemnification Personal Payment Case at [39]-[41], the Full Court reasoned as follows in imposing a personal payment order on Mr Myles: It was submitted on behalf of the Union and Mr Myles that the exercise of the power can only be animated in circumstances where there is a proven (by compelling evidence) necessity for the order, by a proven failure of deterrence from the imposition of penalties unaccompanied by a personal payment order. This is so, it was submitted, because the implication of the implied power comes from the express power carrying with it everything necessary for its exercise; that is, everything necessary for deterrence. Thus, here, it was submitted, there was no proven failure of (specific) deterrence of Mr Myles by penalties alone. We reject this submission. The source of the implication of the power does not limit or constrain the circumstances of its exercise by some "wait and see" principle. The imposition of the order must be appropriate, not to increase the "sting" of the proper penalty (as senior counsel for the Commissioner accepted) but to ensure, as far as possible, that the burden of the proper penalty be recognised. Here the reasons why, in our view, a personal payment order can be justified are straightforward. The primary judge said the following at [199]-[200] in support of the non-indemnification order: 199 As I have noted at [143] above, a registered organisation such as the CFMMEU can only behave in the way it does because individuals within the union decide that action should be taken. The CFMMEU is legally represented and has access to legal advice. Both the organisation and its officials who lead the contravening conduct seem, on the evidence before me, to be uninterested in whether the conduct is lawful or not, provided they consider the industrial outcome to be sufficiently important. The CFMMEU, and its individual officers such as Mr Myles, operate very much on an 'end justifies the means' basis. 200 The need for an individual to take responsibility for conduct found to be unlawful, and for that responsibility not to be transferred, lies behind provisions such as s 77A of the Competition and Consumer Act. Where corporate entities are principal actors, it is one of the few mechanisms by which individual behaviour may be changed or affected and the compliance objectives of regulatory schemes advanced. The Union acts through its officials, of whom Mr Myles was, and is, one. The penalty against the individual must be a burden or have a sting to be a deterrent. The history of contravening by the Union, all undertaken through its officials, reflects a willingness to contravene the Act and to pay the penalties as a cost of its approach to industrial relations. Mr Myles has a history of significant contravention. A personal payment order of the kind to which we will come will bring home to him, and others in his position, that he, and they, cannot act in contravention of the Act knowing that Union funds will always bale him, or them, out. There is ample foundation to consider the order presently warranted. This is especially so in the complete absence of any evidence of contrition or change of approach from either the Union or Mr Myles. 71 That reasoning applies with equal force in this case. 72 For those reasons, I will make an order in the same form as the order made 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, namely that Mr Myles pay the penalties to be imposed personally in that he not, whether before or after the payment of the penalties: (a) seek to have or encourage the first respondent in any way whatsoever, directly or indirectly, to pay to him or for his financial benefit in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part; and (b) accept or receive from the first respondent in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part. 73 Counsel sought an order giving Mr Myles 180 days to pay. In the absence of any evidence about why, I cannot accept that. I will allow 90 days. 74 I will make the declarations sought; and direct that the applicant within 7 days file and serve a draft minute of order setting out the terms of the orders he propounds conformably with these reasons. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

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