Consideration
37 The events at the two sites involved different individuals and they did not overlap factually, aside from the "high fives" when they met at the end of the picketing. It is true that the two contraventions occurred for a common end (as senior counsel for the respondents put it, "the way RDOs are to be treated with respect to an applicable EBA") and at around the same time, but otherwise they were clearly enough two contraventions, one at each site or gate.
38 I accept the CFMMEU's submission that the contraventions of Mr Pearson and Mr Raspudic, which it is agreed are to be attributed to it, arose from the same course of conduct. As counsel put it in their written submissions:
They were both present at the same part of the NewCold site and engaged in the same actions in standing next to the black sports utility vehicle. They were motivated by the same purpose for the purposes of s 47(b)(ii) of the BCIIP Act, namely, advancing the industrial objective of the CFMMEU in ensuring that work did not occur on a designated rostered day off without the CFMMEU's permission. Their actions were directed at the same entities: NewCold and Hansen Yuncken. The consequences of their actions were the same, viz., people were restricted from accessing or leaving the site for a short period of time. There was clearly an interrelationship between the legal and factual elements of Mr Pearson and Mr Raspudic's contraventions. It follows that the CFMMEU should be taken to have engaged in a single course of conduct in relation to the actions of these officials.
39 I therefore accept the CFMMEU's (alternative) submission that it is to be treated as having engaged in a single course of conduct vis a vis the contraventions by Mr Pearson and Mr Raspudic, and to have committed a separate contravention by reason of Mr Perkovic's conduct. See generally Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at 91-92, [111]-[116].
40 The respondents submitted that there being no allegations that any persons (as opposed to vehicles) were directly prevented from entering the sites for the purposes of s 47(1)(a)(ii), or that the action undertaken by the respondents would reasonably have been expected to intimidate anyone for the purposes of s 47(1)(a)(iii), or that the action was unlawful apart from the contravention of s 47(1) of the Act itself for the purposes of s 47(2)(b)(iii), "points to the objective seriousness of the contravening conduct being of a lower order".
41 The respondents' submissions continued in relation to the contravention involving Mr Perkovic at the NewCold 1 site as follows:
… no staff scheduled to work were prevented from entering that site. Rather, the effect of the actions of Mr Perkovic was to cause inconvenience, as persons wishing to enter the site in vehicles had to park their vehicles outside the site before entering the site on foot. Other individuals also entered the site by foot or left by alternative exits.
The contravention pleaded is that the actions of Mr Perkovic directly restricted, rather than prevented, persons from accessing or leaving the NewCold 1 site. People were not prevented from entering the site. To the extent the contrary is suggested by the ABCC in its submissions at [14], that submission is contrary to the pleaded case and should be rejected. The more limited submission made by the ABCC in the same paragraph (to the effect that Hansen Yuncken staff were restricted from entering by vehicle and forced to access the site by foot) is accepted.
There is no allegation (or evidence) that the 'unlawful picket' actually affected the activities, functions or business of NewCold or Hansen Yuncken. Finally, no allegation is made that Mr Perkovic's actions would reasonably have been expected to intimidate a person accessing or leaving the site or an ancillary site.
42 As to the NewCold 2 site, the respondents' submissions were as follows:
Similarly, the contraventions involving Mr Pearson and Mr Raspudic at the 'NewCold 2 site' did not prevent persons entering that site. People who were unable to drive their vehicles into the site via the entrance blocked by Mr Pearson and Mr Raspudic entered the site by foot or alternative routes. Employees scheduled to work parked their vehicles along the side of the road outside the site and walked into the site. Some people seeking to enter the site walked around the picket. The effect of Mr Pearson and Mr Raspudic's actions was therefore to only to restrict or impede, rather than prevent, persons entering or exiting the site. Like Mr Perkovic, the effect of their actions was to cause inconvenience. The suggestion at [15] of the ABCC's submissions that persons were prevented from entering the site is contrary to its pleaded case and must be rejected.
There is also no allegation that the picket actually affected the activities, functions or business or NewCold or Hansen Yuncken. Moreover, there is no assertion that the action would reasonably have been expected to intimidate a person accessing or leaving the site or an ancillary site.
(Footnotes omitted).
43 The respondents also submitted that there was no evidence or suggestion that the contravening conduct which took place at the two sites "was part of a wider campaign" and that no profit or benefit was derived by any of the respondents from the contravening conduct.
44 The respondents also submitted that there is no evidence or pleaded allegation that any economic loss was suffered by NewCold or Hansen Yuncken and that "[t]here is no contention or pleading that any work was disrupted or disturbed by the conduct. Thus, while the actions of the respondents impinged the freedom of movement into and out of the NewCold sites, the Court cannot be satisfied that there was any impact on productivity or economic loss".
45 It follows, so the respondents submit, that "[t]he nature and extent of the contravening conduct, the circumstances in which it occurred and the absence of economic impact on the contractor and subcontractor demonstrate that the contravening conduct falls at the lower end of the spectrum of seriousness for a s 47(1) contravention."
46 The Commissioner submitted that "[e]ach of the contraventions [is] objectively serious" because they involved the deliberate, unlawful picketing of both sites which prevented or restricted persons from entering or leaving the sites for between 4 and 5 hours. Further, the Commissioner relies on the fact that employees of Parmalat, a potential customer of NewCold, were prevented from driving their vehicles to access the NewCold 2 Site and were forced to enter by foot. Trucks delivering concrete to the NewCold 2 Site were also prevented or restricted from driving into the NewCold 2 Site and had to enter by alternate means.
47 The Commissioner also submitted:
The presence or absence in a contravention of any element in sections 47(2)(a) or (b) does not of itself frame the seriousness of the contravention. The various elements in sections 47(2)(a) or (b) simply set out the different ways that s.47 may be contravened. There is nothing in s.47 itself, or in the BCIIP Act generally, that warrants elevating one type of contravention of s.47 as more serious than another because of which element in ss.47(2)(a) or (b) is established. The seriousness of the contravention will simply depend on the circumstances.
In any event, the unlawful picketing engaged in by each Respondent in this proceeding had both the required purpose and effect set out in ss.47(2)(a)(i) and (ii), and also involved two unlawful motivations as required by ss.47(2)(b)(i) and (ii). This does not point to the contravening conduct as being of a lower order.
…
The Respondents allege that no staff were prevented from entering the NewCold 1 Site. This submission must be rejected. The particulars to paragraph 12 of the Amended Statement of Claim, which are admitted by the respondents, provide that Mr Perry (Director) and Mr Flos (Project Manager) of NewCold were both in fact 'prevented' from driving onto the NewCold 1 Site. Perry was forced to enter the site by foot and Mr Flos returned home as a consequence of the NewCold 1 Blockade.
…
The Respondents allege this is not a case where economic loss can be inferred. The Applicant accepts that the disruption to the NewCold 1 Site and the NewCold 2 Site was not as significant as that in ABCC v CFMEU (2017) 249 FCR 458. However, the disruption need not be as severe in order for the Court to infer some economic loss or loss of productivity.
Contrary to the Respondents' Submissions:
(a) this is a case where managers were distracted from their duties, as indicated by:
i. Flos not being able to enter the NewCold 1 Site by reason of the picket (see subparagraph (iii) of the particulars under paragraph 12 of the ASOC);
ii. Ray Perry (Perry), Brandon Finucane, Michael Williams (Williams) and Chris Sheers were all distracted from their duties in dealing with the picketers at the NewCold 1 Site (see paragraphs 13 to 17 of the ASOC); and
iii. Ben Tobin, Perry, Williams, Simon Taylor and Michael Kostal were all distracted from their duties in dealing with the picketers at the NewCold 2 Site (see paragraphs 35 to 42 of the ASOC), and
(b) it can be inferred that the restrictions on personnel entering the site caused some loss of productivity …
48 It is true that Mr Perkovic and Mr Kane behaved with an apparent sense of impunity, including when Mr Pearson said that the car was broken down and that he could not move it and when Mr Perkovic said that he had "lost" his car keys. It is also true that a small number of people appear to have been dissuaded from entering through the two gates. I also accept the Commissioner's submission that the seriousness of the contravention will depend on the circumstances of each case, not merely upon which of the criteria in s 47 of the Act are made out. It is also true that the conduct was deliberate and continued for up to five hours. It may also be inferred that some very small loss of productivity may have occurred.
49 All that said, it seems to me that the admitted conduct in contravention of s 47 of the Act is not, as the Commissioner contends, to be viewed as "serious", such that it would warrant a penalty towards or at the maximum level.
50 In assessing the quantum of the penalties, I also take into account the utilitarian value of the admissions made by the respondents.
51 On the other hand, the CFMMEU is a large organisation with significant financial resources. It has a prior history that has been recorded and characterised in many decisions of this court over many years (which I need not repeat here), demonstrating its apparent willingness to contravene industrial laws in a serious way. And, of course, there is the need for deterrence of an organisation of its size.
52 Taking all those matters into account, I would impose a penalty on the CFMMEU of $100,000 in respect of each of the two contraventions by Mr Perkovic and Mr Pearson (and Mr Raspudic).
53 As to Mr Perkovic, Mr Pearson and Mr Raspudic, there was no evidence led about their financial situation.
54 Mr Perkovic and Mr Pearson have records of contraventions, set out at Annexure B. That said, Mr Pearson's impugned conduct last occurred in November 2013 and Mr Perkovic's in May 2014.
55 Taking all those matters into account, I would impose a penalty on each of Mr Perkovic and Mr Pearson of $20,000.
56 As to Mr Raspudic, he remained mute throughout his involvement in the picket. I would impose a lower penalty on him because of his lesser role. That penalty will be fixed at $15,000.
57 I should also say that in coming to these penalties, I have given consideration to whether the aggregate penalty exceeds what is proper having regard to the totality of the contravening conduct. In my view, it does not.