Long has the following contraventions of industrial laws which occurred after the contravening conduct in this matter:
contravention of s 417 of the FW Act for contravening conduct on 2 April 2014; and
contravention of ss 346 and 348 of the FW Act for contravening conduct in April 2015.
76 The CFMMEU, and in particular the Divisional Branch, has an appallingly long history of prior contraventions of industrial laws. The Commissioner relied on a document setting out that prior history, the accuracy of which was not challenged by the CFMMEU. The Commissioner's analysis shows that the CFMMEU has regularly been involved in the contravention of provisions of the FW Act or the BCCII Act which have attracted pecuniary penalties. The document shows that the CFMMEU has been ordered to pay very significant penalties in relation to those contraventions including many very close to (or at) the maximum available penalty. The document and the updating of it, records over 140 proceedings in which penalties for contraventions of industrial laws dating back to 1999 were imposed. Many if not most of those cases involve multiple contraventions. Over 100 of those cases deal with contraventions that occurred prior to the contraventions here being dealt with. It appears that around 65 of the cases involved the Divisional Branch and around 55 of those cases concerned multiple prior contraventions which occurred prior to the instant contraventions. There can be no doubt that the CFMMEU, through the Divisional Branch, has a significant antecedent history of prior contravening conduct which supports the need for deterrence, particularly specific deterrence. That consideration must loom large in the fixation of appropriate penalties. The CFMMEU's history of prior contraventions demonstrates a compelling need for specific deterrence. General deterrence is also a matter of significance.
77 In relation to specific deterrence I also take into account that, despite the admissions made by the respondents in relation to the instant contraventions, there is no evidence before me of the CFMMEU taking any compliance action to counsel, educate or inform MacDonald or Long in order to prevent the reoccurrence of contravening conduct by them in the future. Nor is there any evidence before me of any compliance regime ever put in place by the CFMMEU to address its long history of prior contraventions. As I said in the Cardigan Street Case at [85] "[t]he absence of any evidence of compliance systems within the CFMMEU is particularly alarming given the heavily critical comments of the CFMMEU made by this Court in many cases over recent years". As I also there said at [86] "[a]n organisation faced with a litany of contraventions over an extended period of time, which repeatedly incurs not only significant financial penalties but also pointed judicial criticism, would necessarily put in place measures to change the cultural or normative conduct of the contravening behaviours of its officers and employees" unless such behaviour was condoned by the senior leadership of the organisation. That inference, made in the Cardigan Street Case, is equally available here. All of that is demonstrative of a compelling need for specific deterrence.
78 Before recording my conclusions as to the quantum of the penalties to be imposed, it is necessary to deal with the respondents' contention that the s 500 contraventions of each of the respondents are, in each case, properly to be characterised as a single course of conduct by that respondent.
79 The respondents contended that the circumstances of each of the entries exhibited considerable legal similarity. It was contended that on each entry MacDonald and Long exercised the same legal right, the right to enter and remain on premises for the purposes of holding discussions with employees; that the right was exercised against the same employer over a narrow date range; and that the exercise of the right was accompanied by the same failure to provide notice of entry and produce entry permits on request.
80 The factual circumstances said to have been common were the dismissive responses given by MacDonald and Long to requests made of them for their entry permits and that MacDonald and Long proceeded onto the construction sites (save on the second entry) despite being warned not to do so. Further, it was contended that each entry was responsive to the adoption by Qanstruct of its new right of entry policy and that the conduct engaged in by MacDonald and Long was engaged in partly for the purpose of testing and defying that new policy. That MacDonald and Long were responsive to an adverse change in the industrial relationship was said by the respondents to unify each unlawful entry. Lastly that the rights sought to be exercised were completely ineffectual was also contended to be a factually common circumstance.
81 I reject those submissions. Whether multiple instances of conduct are to be regarded as a course of conduct raises a question of characterisation. An interrelationship between the legal and factual elements of each of the instances of conduct concerned is relevant, but ultimately the object of the exercise is to ensure that a contravener is not punished twice for what is essentially the same wrongdoing. The nature of the wrongdoing underlying the contraventions of s 500 were that each of MacDonald and Long acted in an improper manner. The impropriety involved with one contravention may well have had shared characteristics with the next. However, as an instance of wrongdoing, I would characterise each impropriety as separate and distinct from the next. Each impropriety is capable of being addressed separately without any danger that the respondents will be dealt with twice for the same wrongdoing. I accept that there is some connection between the s 500 contraventions on the fourth and fifth entries. That connection is provided by the fact that, at least in part, all of that conduct was motivated by the same intent to break Qanstruct's adherence to its new policy and that the conduct occurred on the same day in a relatively short period of time. In my view, however, that connection does not suffice to demonstrate that the contraventions related to the same wrongdoing. Rather, the connection illustrates an overlap which, if it is to be dealt with, is best dealt with under the totality principle.
82 In relation to the CFMMEU, I also need to address the course of conduct principle and a related contention.
83 As set out at [105] of the primary judgment, the CFMMEU admitted that the conduct of MacDonald and Long was its conduct. In the CFMMEU's submissions made at the penalty hearing, the CFMMEU accepted that by reason of the admissions made, the CFMMEU is liable, on a derivative basis, for each of the contraventions of s 500 and s 340(1) where MacDonald and Long are the primary contraveners. However, there was some suggestion in contentions later made by the respondents that it was open for the Court to find fewer contraventions on the part of the CFMMEU than the sum of the contraventions on the part of MacDonald and Long. A contention to that effect was made relying on a construction of s 793 of the FW Act which was first considered by Charlesworth J in Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525. It is not necessary for me to deal with the detail of the argument. Any result in which the Court found that there were fewer contraventions by the CFMMEU than the sum of the contraventions of MacDonald and Long would undermine the admissions that have been made by the CFMMEU. Any contention advocating for that result must necessarily be rejected.
84 That does not mean, however, that in addressing the course of conduct principle, the CFMMEU cannot have the benefit of that principle in relation to its derivative liability for the contraventions of MacDonald and Long, in circumstances where MacDonald and Long themselves are unable to rely on that principle as primary contraveners. In particular I have in mind the fourth and fifth entries where MacDonald and Long entered together in what I found (primary judgment at [120]-[121]) to be an orchestrated attempt to break Qanstruct's new right of entry policy. Whilst, on each entry, the primary contraveners were each involved in separate wrongdoing based upon conduct personal to each of them, from the perspective of the CFMMEU, the conduct personal to it was the sum of the conduct of both of its officials. The sum of that conduct is, in my view, capable of constituting the same wrongdoing. There is at the least an overlap which should be taken into account in the application of the totality principle. That overlap extends to all of the conduct which occurred on the fourth and fifth entries. That conduct occurred in close temporal proximity and for the same purpose. As the Full Court said in Parker at [274] course of conduct and totality are closely related and should be considered in the context of one another. Some moderation of the penalties to be imposed upon the CFMMEU is appropriate for its contraventions on the fourth and fifth entries. I consider that to be best addressed through the totality principle.
85 I reject the CFMMEU's contention that all of the conduct of its officials on all of the entries was a single course of conduct for the CFMMEU. I also reject the alternative submission that all of the conduct orchestrated to break Qanstruct's policy was a single course of conduct for the CFMMEU. An evaluation of the similarities and distinctions as between the different instances of conduct does not, in my view, lead to the characterisation that the sum of the conduct involved no more than one instance of wrongdoing on the part of the CFMMEU.
86 The Commissioner contended that the Court should make a personal payment order in respect of the penalties imposed upon MacDonald and Long. The orders sought have been framed in accordance with the orders made by the Full Court (Allsop CJ, White & O'Callaghan JJ) 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. The orders sought would require MacDonald and Long to pay the penalty imposed by the Court personally and not to seek or encourage the CFMMEU to pay to him any money or provide any financial benefit referable to the payment of the penalty, and additionally, not accept or receive from the CFMMEU any money or financial benefit referable to that payment.
87 The making of a personal payment order is discretionary. It is an unusual order. Ordinarily, no restrictions are imposed upon a contravener obtaining financial assistance from another person to pay a penalty imposed for a contravention of the law. Pecuniary penalties are ordinarily imposed on the basis that the burden or sting needed to address deterrence will have its intended impact despite the capacity for the contravener to obtain assistance in paying the penalty imposed. Non-pecuniary consequences, including reputational damage, attach to a Court's condemnation when a penalty is imposed. Further, pecuniary assistance for the payment of a penalty will often come at some cost, even if the cost involves a non-pecuniary detriment for the contravener. If the usual approach is to be departed from, some good reason ought to be demonstrated.
88 The Commissioner relied upon a range of reasons to demonstrate the need for personal payment orders to be made against MacDonald and Long. The Commissioner said that there was a complete absence of any contrition or evidence of a change in approach from the respondents. The Commissioner also relied upon what he referred to as the knowing, intentional and repeated nature of MacDonald and Long's conduct. Additionally reliance was placed on the prior history of contraventions of MacDonald and Long. I appreciate that some support may be found in the authorities suggesting that considerations of that kind may be relevant (Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211, Tracey J). But, to my mind, if relevant, those considerations are not particularly helpful. They are considerations which address the need for deterrence. Those considerations are relevant to whether a penalty is to be imposed and the extent of the penalty to be imposed. A personal payment order is not addressing the need for a penalty to be imposed but the need for the penalty imposed to be effective in providing its intended sting or burden. As Keane, Nettle and Gordon JJ said in Australian Building Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at [125] the imposition of a personal payment order is an exercise "of accomplishing the level of sting or burden which the court determines is necessary to be imposed" (emphasis added; and see also at [122]-[123]).
89 The same might be said of the respondents' contention that a personal payment order is not appropriate. The respondents relied on three matters. First, that neither MacDonald or Long were permit holders at present and therefore no longer have the means of engaging in future impropriety as permit holders. Second, that MacDonald had not been found to have contravened the FW Act since 2014 and that Long had not been found to have contravened the FW Act since 2015. Lastly, the respondents' relied on the lower level of seriousness of the contraventions in question here, as compared with the contraventions in relation to which a personal payment order was made in the Non-Indemnification Personal Payment Case. Again, all of those considerations are addressing the need for deterrence rather than the need to make the sting or burden effective. To my mind they do not say very much about the need for a personal payment order.
90 The Commissioner did, however, rely on one consideration which to my mind is both relevant and persuasive. The Commissioner relied upon the history of contravention by the CFMMEU through its officials and contended, mirroring the observations made by the Full Court in the Non-Indemnification Personal Payment Case at [40], that that history of contravention effectuated through officials of the CFMMEU "reflects a willingness to contravene the Act and to pay the penalties as a cost of [the CFMMEU's] approach to industrial relations". The Full Court continued:
A personal payment order of the kind to which we will come will bring home to [the contravener], and others in his position, that he, and they, cannot act in contravention of the Act knowing that Union funds will always bail him, or them, out.
91 The inference made by the Full Court, which those observations reveal, is that the CFMMEU has accepted that, as a cost of its approach to industrial relations, it will pay the pecuniary penalties incurred by its officials. It seems to me that it was principally that consideration that led the Full Court to the view that a personal payment order was warranted.
92 Consistently with the approach taken by the Full Court in the Non-Indemnification Personal Payment Case, I would infer that the history of prior contraventions by the CFMMEU through the Divisional Branch is demonstrative of an underlying willingness to pay pecuniary penalties imposed upon its officials in relation to the industrial conduct of those officials taken in the course of their employments. The CFMMEU did not resist the inference that the Commissioner sought be drawn against it. Consistently with the existence of such a policy and supportive of its long-standing and systemic nature, the respondent's acknowledged that the pecuniary penalty imposed on MacDonald in 2013 for his prior contraventions of s 38 of the BCII Act were not personally paid by him. Likewise, a penalty of $6,400 imposed upon Long for a contravention of s 417 of the FW Act (which post-dated the instant contraventions) was also acknowledged as not personally paid by Long.
93 The systemic willingness of the CFMMEU, through the Divisional Branch, to support the unlawful conduct of the officials of the Divisional Branch by paying the pecuniary penalties imposed upon them demonstrates that it is likely that officials of the Divisional Branch will not personally pay for penalties imposed for their contraventions. But that is not all. It also demonstrates that there will be no condemnation or other detrimental consequence inflicted upon those officials by the Divisional Branch.
94 As in the Non-Indemnification Personal Payment Case, the Court is confronted with circumstances which are apt to be characterised as unique. Those circumstances warrant an effective response. The unique circumstances demonstrate that it is likely that, in the absence of a personal payment order, MacDonald and Long will not feel the sting or experience the burden of any pecuniary penalty imposed upon them. To accomplish the intended sting and burden, I consider that personal payment orders should be made in relation to each of the pecuniary penalties I intend to impose on MacDonald and Long.
95 Finally, in assessing the appropriate penalties for the s 500 contraventions, I have had some regard to the judgment of White J in Director of Fair Work Building Industry Inspectorate. I have not done so in the application of the parity principle. I have done so in particular because, broadly speaking and being cautious about the existence of differences, the conduct found to have contravened s 500 in that case, was conduct largely of the same order (some of it more serious) than that which is here being considered for the imposition of a penalty for a breach of s 500 of the FW Act.
96 In that case, White J dealt with a large number of contraventions of s 500 which occurred at various sites in South Australia occupied by Lend Lease. Those contraventions occurred in the course of a considered and deliberate campaign by the CFMMEU to enter Lend Lease construction sites without providing notices of entry. A large number of CFMMEU officials were involved. Conduct common to all of the contraventions was described by White J at [98]-[103]. The commonality included that there were no allegations that Lend Lease suffered quantifiable economic loss or damage; that senior managers were distracted from their normal duties by having to deal with the CFMMEU officials, the period of distraction ranging from being relatively short through to extended periods over several hours; further, workers carrying out their normal duties were distracted from their work by the CFMMEU officials speaking to them; and each case involved what White J considered was an affront to the rights of Lend Lease, in circumstances where the CFMMEU officials involved acted in defiance of the requirements of the FW Act and were dismissive of the objections of Lend Lease management.
97 Further, as I have done, White J regarded the conduct concerned as a subversion of the balancing of the rights and interests sought to be achieved by Part 3-4 of the FW Act (at [103]).
98 All of the penalties imposed by White J on ten individual officials for contraventions of s 500 of the FW Act were imposed at the low range of available penalties, the maximum relevant penalties being the same in that case as are applicable here. The penalties imposed ranged from $1,000 to $3,400 for the individual contraveners and from $20,000 to $25,000 for the CFMMEU. The reasoning of his Honour shows that whilst the seriousness of the conduct as between the different contraventions accounted for some of the disparity in penalties, the main basis for that disparity was the contravener's prior history of contraventions.
99 The contraveners dealt with by White J included Long, whose conduct is described by White J at [169]. That conduct involved Long entering a construction site and holding discussions with employees, without having provided a notice of entry and without permission in defiance of two managers of Lend Lease. There is no indication of Long having made a dismissive or aggressive response to Lend Lease management's request. At the time, Long had no prior contraventions of s 500 although a single penalty of $5,000 had been imposed for prior contraventions of ss 38 and 43 of the BCII Act. Two further prior contraventions of ss 38 and 43 were also taken into account. A pecuniary penalty of $2,200 for each of Long's contraventions of s 500 was imposed. Similar contraventions of s 500 by individuals with no prior history of contraventions resulted in penalties between $1,200 and $1,500 (see [104]-[120] re Mr Grava, [121]-[131] re Mr Kalem, [132]-[137] re Mr Lomax, [176]-[179] re Mr Harrison and [186]-[191] re Mr Stephenson).
100 In terms of its objective seriousness, I have assessed the contravention of s 500 which resulted from the first entry as at the lower end of the scale. That assessment was made largely by reference to the nature of the impropriety and its consequences and the isolated and non-systematic nature of the first contravention. Taking into account MacDonald's prior contraventions and noting that he had one prior contravention at the time of the first entry which concerned conduct over 3 years earlier, a penalty of $1,800 is appropriate.
101 The CFMMEU's extensive history of contraventions warrants a penalty being imposed at the very high end of the range of penalties appropriate for a contravention of this level of seriousness. A penalty of $20,000 is appropriate.
102 In terms of its objective degree of seriousness, I have assessed the second entry by MacDonald as at a lower level of seriousness than the first entry. That was principally because MacDonald's impropriety did not involve defiance of Qanstruct's warning that he not enter the construction site. His impropriety involved not a lot more than a single dismissive response. The same limited prior history of contraventions, as for the first entry, is applicable. In those circumstances, an appropriate penalty is $500 for MacDonald and, because of its extended history of prior contraventions, $5,000 for the CFMMEU.
103 The third entry was made by Long onto the Cheltenham premises. The conduct in question is the adverse action taken by Long in making the threat. I have assessed the contravention as at or about the mid-level on the scale of serious contraventions of s 340(1). At the time of the third entry, Long had four prior contraventions but only two of those had been the subject of judgment and penalty. Those two contraventions occurred over five years prior to the third entry. In those circumstances, I consider a pecuniary penalty of $6,000 to be appropriate for Long. As for the CFMMEU, and because of its extended history of prior contraventions, a penalty of $35,000 is appropriate.
104 The fourth entry took place at the Cheltenham premises and involved both MacDonald and Long. I assessed the contraventions of s 500 by MacDonald and Long as being objectively serious. Putting aside the threat, they are more serious than the earlier entries because the purpose of MacDonald and Long entering the site was to break Qanstruct's new right of entry policy. The contraventions were not isolated but part of an orchestrated campaign. By this time, MacDonald had three additional contraventions to those he had on the first entry. Those related to conduct in the prior week and had not been the subject of judgment or penalty. He also had the contraventions resulting from the first and second entries. An appropriate penalty for MacDonald is $4,000. Long's prior contravening history was the same at the fourth entry as that at the third entry other than the additional contravention resulting from the third entry. I also consider $4,000 to be an appropriate penalty for Long.
105 Given its extended history of prior contraventions, a penalty of $28,000 should be imposed on the CFMMEU.
106 The fifth entry again involved both MacDonald and Long. The relevant circumstances of that entry, including the prior history of contraventions of MacDonald and Long, are essentially the same as for the fourth entry save for the contraventions which occurred on that entry. However, the contraventions occasioned on the fifth entry should be regarded as a little less serious than the fourth entry because neither MacDonald or Long gave a dismissive or aggressive response to requests made of them to show their permits. I would impose a penalty of $3,500 on each of MacDonald and Long. Given its extended history of prior contraventions, a penalty of $24,000 is appropriate for the CFMMEU.
107 Standing back and applying the totality principle, I do not consider any reduction to be appropriate other than in relation to the overlap to which I have earlier referred between the fourth and fifth entries. As a result, I would reduce the penalties I would otherwise have imposed upon MacDonald and Long for each of the fourth and fifth entries by $1,000. For the CFMMEU, the overlap results in a reduction of $4,000 in relation to each of the fourth and fifth entries.
108 Accordingly, the following pecuniary penalties will be imposed:
Entry MacDonald Long CFMMEU
First Entry $1,800 $20,000
Second Entry $500 $5,000
Third Entry $6,000 $35,000
Fourth Entry $3,000 $3,000 $20,000
Fifth Entry $2,500 $2,500 $20,000
Total: $7,800 $11,500 $100,000