Penalty
113 The primary judge was required to sentence the Union for its contraventions of ss 346(b), 355 and 417 of the Act in relation to the strikes, and ss 346(b) and 355 in relation to the stoppages.
114 The industrial action took place on nine days in August and September 2016. There were 16 events of industrial disruption on those days. On six days there was a single strike or stoppage. However, on both 13 and 14 September, there were two strikes, and on 23 September, there were two strikes and four stoppages. The Commissioner's grounds of appeal upon penalty focus upon the penalties imposed upon the Union in respect of the contraventions on those three days.
115 On 13 September 2016, Mr Pauls organised a strike at the Newstead site for the day. On the same day, Mr Parfitt organised a strike at the Hercules site for the day.
116 On 14 September 2016, Mr Steele organised a strike for the day at the Ivy site. On the same day, Mr Bland organised a strike for the day at the Wharf Street site.
117 On 23 September 2016, Mr Pauls organised a strike for the day at the Spire site and Mr Floro organised a strike for the day at the Hercules site. On the same day, Mr Davis organised a stoppage at the South Point A site, Mr Bland organised two stop work meetings (treated as one stoppage and one contravention in the pleadings) at the Skytower site, Mr Stott organised a stoppage at the Newstead site and Mr Steele organised a stoppage at the Opera site.
118 On 13 September 2016, approximately 139 employees ceased work. On 14 September, approximately 97 employees ceased work. On 23 September, at least 99 employees ceased work.
119 Under ss 363 and 793 of the Act, the actions taken by the individual respondents, as officers of the Union, are taken to be actions of the Union. The parties did not submit that s 557 of the Act applied. However, the primary judge found that s 556 applied such that a maximum of two penalties could be imposed for the Union's contraventions on each of 13 and 14 September, and a maximum of six penalties for the contraventions on 23 September. There could only be one penalty for each of the remaining six days.
120 The primary judge found that the actions of the Union on each of the nine days amounted to a single course of conduct. Her Honour imposed nine penalties of $48,000 upon the Union for its actions on the nine days. The total of the penalties was $432,000.
121 The Commissioner's grounds of appeal allege, firstly, that the primary judge erred by finding that the multiple contraventions on each of 13, 14 and 23 September arose in a single course of conduct. The Commissioner's second ground is that her Honour erred by regarding herself as bound to impose only a single penalty for each such course of conduct even though that course consisted of multiple contraventions. The Commissioner's third ground is that each of the penalties for the Union is manifestly inadequate.
122 The primary judge's reasons for finding that the Union's contraventions arose within "a single course of conduct" on each day and for imposing same penalty for each course of conduct were briefly stated:
80 In relation to the CFMMEU, the various stoppages and strike actions were referable to the campaign it had conducted against Hutchinson across various sites. Upon examination of this conduct it is in my view apparent that the actions of the CFMMEU, through its officials and employees, was orchestrated to take place on particular dates to cause maximum disruption on those dates. To that extent, I consider that the conduct of the CFMMEU on each particular date was a single course of conduct…
81 Consistently with this approach, I consider that the conduct of the individual respondents was referable to their actions on particular dates…
Conclusion
82 Insofar as concerns the contraventions by the CFMMEU, I conclude that the penalties for contraventions should be in the high range. I note that the CFMMEU does not dispute this. I note the co-operation by the CFMMEU and take this into consideration, however I also consider that considerations of specific deterrence are of high importance in this case. In the circumstances I consider it appropriate to impose a penalty of $48,000 for each of the nine courses of conduct, totalling $432,000.
123 The course of conduct (or one transaction) principle under the general law has been stated in a variety of ways. A useful exposition of the principle was given by Owen JA in Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319 at 328 [22]:
… At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.
124 In Transport Workers' Union of Australia v Registered Organisations' Commissioner [No 2] [2018] FCAFC 203; 363 ALR 464 at [84]-[91], the Full Court, referring to other judgments of the Full Court, considered the application of the course of conduct principle in the assessment of pecuniary penalties. The principles include the following:
(1) The purpose of the common law course of conduct principle is to ensure that, having regard to the circumstances (factual and legal), a party is not penalised more than once for the same conduct.
(2) That phrase should not simplistically be adopted to transfer multiple contraventions into one contravention, or, necessarily, to impose one penalty by reference to one maximum amount.
(3) The principle cannot, of itself, operate as a de facto limit on the penalty to be imposed.
(4) The application of the principle must be informed by the particular legislative provisions relevant to the proceedings. In particular, weight must be given to the fact that the legislature has deliberately and explicitly created separate contraventions for each relevant action.
(5) The application and utility of the principle must be tailored to the circumstances.
(6) A judge is not obliged to apply the principle if the resulting penalty fails to reflect the seriousness of contraventions.
(7) The task is to evaluate the conduct and its course and assess what penalty is, or penalties are, appropriate for the contraventions.
(8) It is necessary to examine all the conduct and enquire how its course and its explanation factually and legally informs the imposition of penalties, in order to avoid double punishment.
[see Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 at [31]; Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 357 ALR 55 at [231]-[236]; Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; 262 ALR 417 at [16]-[19]; Australian Building and Construction Commissioner v Construction Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 at [148].]
125 The sentencing task of the primary judge required the exercise of a judicial discretion. Her Honour was required to determine the appropriate penalty having regard to all the relevant objective and subjective circumstances. Many of the issues that fell to be decided along the way, such as whether there was a risk of double punishment and the level of penalty that would avoid that risk, were themselves discretionary elements involved in the sentencing discretion. In House v R [1936] HCA 40; 55 CLR 499, Dixon, Evatt and McTiernan JJ explained the principles upon which an appellate court will interfere with a discretionary judgment, at 504-505:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
126 In this case, the primary judge decided that the Union's contraventions on 13, 14 and 23 September 2016 should be treated as arising within "a single course of conduct" on each day. Her Honour apparently reached that conclusion because each contravention was referable to the single campaign the Union was conducting. In other words, the contraventions had the single purpose of coercing Hutchinson into engaging only subcontractors that had enterprise agreements with the Union. The Commissioner submits that the primary judge was wrong to decide that there was a single course of conduct on each day.
127 However, the Commissioner has not submitted that her Honour acted upon a wrong principle or made some other error of law or of fact. In Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1, Middleton and Gordon JJ observed at 12 [39] that, "Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions". But in this case, there was more than bare identity of motive. That multiple actions were taken on the same day, against the same business and with the same motive, provided a basis for her Honour's conclusion, and it cannot be held that the conclusion was unreasonable or otherwise fell within the ambit of appealable error as described in House v R. The Commissioner's submission simply expresses disagreement with the conclusion, and provides no basis to set aside her Honour's exercise of discretion.
128 The Commissioner next submits that the primary judge erred by approaching the sentencing task as though only one maximum penalty was available to be imposed for the multiple contraventions that her Honour had found to come within a single course of conduct. The Commissioner points out that it was open to her Honour to impose up to two penalties for the Union's contraventions on both 13 and 14 September and up to six penalties for the contraventions on 23 September. However, her Honour imposed only one penalty for each date. Her Honour concluded that "it was appropriate" to impose a penalty of $48,000 for each date, but did not explain why that was so.
129 There were two strikes and four stoppages at six different sites on 23 September 2016. There were two strikes on each of 13 and 14 September at two different sites. The scale of the industrial action on the three days and disruption was significantly greater than for the other days. For example, the scale of the industrial disruption on 23 September, where the two strikes were taken for a whole day, the four stoppages lasted up to two hours each and at least 99 employees ceased work, can be contrasted with 21 September, where there was a single stoppage lasting up to two hours and approximately 16 employees ceased work. Yet a single penalty of $48,000 for the contraventions on 23 September and a single penalty of the same amount for the contravention on 21 September was imposed upon the Union. Intuitively, the same penalty for significantly more serious, widespread, concerted and disruptive conduct seems anomalous.
130 The Union submits that the uniformity of the penalties may reflect a scaling-up of the penalties for the single contravention days such that the total penalty is intended to reflect the totality of the conduct over the course of the month. However, there is no hint of that type of reasoning in the primary judge's reasons, and that submission cannot be accepted.
131 The primary judge's reasons set out a finding that the contraventions on each of the nine days of industrial disruption arose in a single course of conduct, and then proceed, without further reasoning of any significance, to the conclusion that the same penalty should be imposed for each day. The proximity of these findings in her Honour's reasons, and the absence of relevant interposed reasoning, suggests that they are linked. Her Honour did not otherwise explain why it was appropriate to impose the same penalty. Having regard to the absence of any other explanation and the extent of the disparity in the scale and seriousness of the industrial action on the three relevant days compared to the other days, it should be inferred that her Honour's approach was that only one maximum penalty was available where there were multiple contraventions that constituted what her Honour had found to be a single course of conduct.
132 The course of conduct principle exists to ensure that where that conduct results in more than one contravention, an offender is not punished more than once for what is effectively the same offending conduct. A finding that multiple contraventions are connected by a single course of conduct raises a question as to what is the appropriate penalty for those contraventions that avoids double punishment, but does not answer that question. The question is answered by evaluating the conduct and its course and assessing what penalty is, or what penalties are, appropriate for the contraventions. It was an error for the primary judge to take the approach that only a single penalty up to the statutory maximum for one contravention was available for multiple contraventions arising within a single course of conduct.
133 Having found error in the approach of the primary judge, it is necessary to resentence for the contraventions occurring on 13, 14 and 23 September 2016. It was not suggested that there should be any resentencing for the contraventions on the other dates. Nor was it suggested that the Court should depart from the factual findings made by her Honour.
134 The admissions and evidence before the Court regarding the contraventions on 13, 14 and 23 September 2016 are limited in scope, and have been described above at [21], [28]-[30] and [114]-[118]. I accept the Commissioner's submission that the overall conduct involved a deliberate, premeditated and sustained campaign of unlawful industrial behaviour orchestrated by the Union, including elements of intimidation, threat and coercion. In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; 249 FCR 458, in the context of assessing penalty, Dowsett and Rares JJ held at 475-476 [78]-[80], that where a site had been blockaded so work could not be performed, and where that action was intended to injure a party, substantive loss to someone was an inevitable consequence. I adopt the primary judge's finding that the Union intended that loss be suffered, and infer that loss must have been suffered by someone. It is not possible to identify the loss or to quantify it, other than to say that it is likely to have been greater on the days when multiple sites were affected. The Union points out that it reached a settlement with Hutchinson, but the terms of settlement are not before the Court, and it cannot be assumed that no loss was suffered by anyone.
135 The Union's history of prior contraventions was described in a schedule placed by the Commissioner before the primary judge, although it was not before this Court. However, the primary judge described that history as "extensive" and "vast". That description was not disputed by the Union. That history was reflected in the fact that the individual penalties imposed by her Honour were close to the maximum amount for one penalty.
136 It is necessary to give substantial weight to the objects of general and specific deterrence.
137 It is also necessary to take into account, as the primary judge found, that senior officers of the Union orchestrated the campaign against Hutchinson.
138 While there has been no expression of contrition, the Union cooperated by making admissions, obviating the need for a contested trial, other than in respect of the reserved issue which was resolved in the Union's favour.
139 The maximum number of penalties available to be imposed for the contraventions on each of 13 and 14 September is two, and for 23 September 2016, is six. A single penalty up to the maximum for each of those dates is inadequate, having regard to the legal and factual seriousness of each contravention, the extent of the disruptions, the loss caused and the number of contraventions. On the other hand, to impose the maximum number of penalties at the maximum amount would be to punish the Union excessively in circumstances where the contraventions involved substantially similar action taken for the same purpose on the same day. However, the penalties must also take into account that, factually and legally, the multiple contraventions committed on the same day were separate offences with separate factual and legal consequences.
140 It is appropriate to impose two penalties for the contraventions on 13 September 2016 and two penalties for the contraventions on 14 September of $35,000 each. It is appropriate to impose six penalties for the contraventions on 23 September 2016 of $25,000 each. These penalties may be compared to the maximum of $54,000 able to be imposed for each contravention.
141 The total of the penalties proposed to be imposed upon the Union in respect of its contraventions on the nine days is $578,000. Applying the totality principle, a total penalty of that magnitude is not excessive given the overall extent and seriousness of the contravening conduct.
142 The Commissioner accepted in argument that if more than one penalty were imposed in respect of the contraventions on each of 13, 14 and 23 September 2016, his final ground - that the penalties imposed by the primary judge were manifestly inadequate - would fall away.
143 The appeal should be allowed in part. Orders 19, 20 and 23 should be set aside.
144 Order 19 should be replaced by an order that, "In respect of the conduct on 13 September 2016, the subject of Declarations 34, 35, 36, 46, 47 and 48, the First Respondent pay two pecuniary penalties of $35,000 each."
145 Order 20 should be replaced by an order that, "In respect of the conduct on 14 September 2016, the subject of Declarations 40, 41, 42, 52, 53 and 54, the First Respondent pay two pecuniary penalties of $35,000 each."
146 Order 23 should be replaced by an order that, "In respect of the conduct on 23 September 2016, the subject of Declarations 49, 50, 51, 55, 56, 57, 75, 76, 77, 78, 81, 82, 83 and 84, the First Respondent pay six pecuniary penalties of $25,000 each."
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.