The number of contraventions
70 The parties agree that, by operation of s 94 of the BCIIP Act, the Union is taken to have engaged in the conduct constituting the contraventions of s 47 of the Act by Messrs O'Mara, Smith and Bolitho. The Commissioner contends that "on a straight application of the language of s 94" this means that the Union contravened s 47 three times. The Union, on the other hand, submitted that the contravening conduct comprised the actions of its officials which, "taken together, constituted the picket". There was, as it put it, only one picket, not three and therefore only one contravention. The Union noted that in his written submissions the Commissioner recognised that picketing "by its nature, involves collective effort". Alternatively, the Union submitted that the Court should treat the three contraventions attributed to the Union as a single course of conduct.
71 It will be recalled that s 94(1) relevantly provides that "any conduct engaged in on behalf of a body corporate by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority … is taken, for the purposes of this Act, to have been engaged in also by the body".
72 It follows that the conduct of all three union officials is taken to have been engaged in by the Union. But does this mean that the Union contravened the Act three times?
73 The Union's argument to the contrary is based on a line of authority which begins with Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338, a decision of Charlesworth J. That case was concerned with contraventions of the FW Act and, relevantly, the effect of s 793 of the Act. The other authorities upon which the Union relied are Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Yarra's Edge Case) [2016] FCA 772 at [15]-[20] (Jessup J); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1269 (The Carrara Case) at [4]-[25] (Reeves J) and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) (2018) 260 FCR 564 at [95] and [113] (Bromberg J).
74 Section 793 of the FW Act is in relevantly identical terms to s 94 of the BCIIP Act.
75 In Robinson at [48]-[50] Charlesworth J said:
Section 793 does not, of itself, fix upon a body corporate liability for contraventions found to have been committed by its officers, employees or agents. Rather, it attributes to the body corporate the conduct and state of mind of its officers, employees and agents in prescribed circumstances. The question of whether the body corporate has contravened the FW Act (and, if so, on how many occasions) must be answered by assessing the facts, namely the conduct and state of mind attributed to the body corporate, against the elements of the contravention said to have been committed by it.
… The mere fact that two employees of the CFMEU have each contravened the FW Act does not of itself, demand the conclusion that the CFMEU is liable for two contraventions.
76 In that case three union officials organised and encouraged employees of a construction company to refuse to attend work on one day in June 2014 to protest their dissatisfaction with the "park and ride" facilities where they left their vehicles before being transferred to the project site. In doing so, they were found, based on their admissions, to have organised industrial action within the meaning, and in contravention, of the FW Act and the unions who employed them were taken to have engaged in the same conduct by reason of s 793.
77 Her Honour found that the conduct attributed to the CFMEU by the operation of s 793(1) consisted of the conduct of the union officials and the words spoken at meetings at two park and ride facilities. After considering the union's conduct as a whole, her Honour found (at [52]) that it organised a single instance of industrial action, namely the refusal of the employees to attend work on 19 June 2014. Her Honour explained:
On one view of the facts, it might be said that there were two physical acts of organisation conceived of as the Yarrawonga meeting and the Airport meeting, which were, I accept, separated in place, although not in time. The necessity to conduct the meetings at two places arose, however, from the fortuitous circumstance that some of the O'Rourke employees to whom the CFMEU's organising conduct was directed parked their vehicles at the Yarrawonga Park and Ride facility while others parked their vehicles at the Airport Park and Ride facility.
78 Her Honour went on to say (at [53]) that, in reaching this conclusion, she had given the word "organise" in s 417 of the FW Act "a meaning that encompasses the concept of 'marshalling' or 'rallying', which may inherently involve a number of discrete acts directed at achieving cohesiveness in a result (in this case, a single episode of industrial action)". Her Honour held that the union had organised one instance of industrial action "through the conduct of two human actors".
79 It is not readily apparent that her Honour would necessarily have arrived at the same conclusion had the allegation been one of engaging in, rather than organising, industrial action.
80 The Yarra's Edge Case, on the other hand, was a case of engagement in industrial action.
81 This case was decided under the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act). Each of a number of union officials was found to have contravened s 38 of the BCII Act. Paragraph 69(1)(b) of the BCII Act relevantly provided that, for the purposes of the Act, conduct of an officer or agent of a building association acting in that capacity "is taken to be conduct of the building association".
82 On the facts of the case, and based on the way it was conducted, Jessup J held that the Union contravened the Act only once. Significantly, the applicant pleaded that, by reason of their conduct on several occasions in February 2011, the union officials "themselves and in combination, imposed a ban, restriction or limitation on the performance of the tower crane erection work on the site and thereby engaged in building industrial action within the meaning of section 36 of the BCII Act". This form of industrial action appears in para 7(1)(b) of the BCIIP Act. His Honour accepted the respondents' submission that only one ban, restriction or limitation was alleged to have been imposed by each of the organisers and held that the case was conducted on this basis. At [9] his Honour said:
In one way of looking at it, the present problem has arisen because the idea of engaging in something, by reference to which s 38 operated, and the concepts of "limitation" and "restriction", which were contained in the definition of "building industrial action", made sense in two alternative settings, namely, that of a person who did a specific, isolated, thing on one occasion, and that of a person who participated, at various times and to various extents, in an ongoing activity, or suite of activities. Each would be sufficient to attract liability under s 38, but the treatment of a situation of the second-mentioned kind not as a single engagement but as separate engagements at each point when the person had any involvement in some relevant action would be to allege multiple contraventions, rather than a single contravention. It would, in short, be a different case.
83 Furthermore, the fact that five union organisers had engaged in this conduct did not lead his Honour to hold that the union contravened the Act five times. At [19] his Honour said that on the facts of the case "it would be artificial to regard the conduct of the [union] as having amounted to a separate engagement in industrial action in respect of the conduct of each of the five organisers concerned".
84 Carrara related to the conduct of two CFMEU officials, who had called and conducted a series of twice daily, two-hour union meetings at the Carrara Sports and Recreation Project on the Gold Coast after the breakdown of negotiations for an enterprise agreement. The Commissioner alleged that the CFMEU and the two officials arranged the meetings to coerce the project's managing contractor to enter into an enterprise agreement with the CFMEU on its terms, in contravention of ss 343 and 348 of the FW Act. In his pleading the Commissioner alleged that the relevant conduct was conduct which was engaged in by an officer, employee or agent of the CFMEU, within the scope of his actual and apparent authority, on behalf of the CFMEU, and "thereby is taken to have been engaged in by the CFMEU by operation of section 793 of the [FW Act]".
85 The Commissioner submitted that since the conduct and state of mind of its officials was attributed to the CFMEU under s 793 of the FW Act, this meant the CFMEU had committed three contraventions, rather than one. That is, one contravention by its own conduct and two further contraventions, one each by the conduct and states of mind of Messrs Desmond and Watson. Reeves J rejected the submission and treated the CFMEU's contraventions of ss 343 and 348 as "one whole contravention" relying, in part only, on the conduct of the two officials (see [20]). His Honour did so for two reasons.
86 First, the allegation of vicarious liability by reason of s 793 was an alternative allegation in the Commissioner's pleading. The Commissioner's primary case was that each of the CFMEU and the union officials was personally liable for the contraventions and the trial was conducted solely on that basis, with the result that the CFMEU was found liable as a principal contravener. By raising separate contraventions based on the conduct and state of mind of two CFMEU officials, his Honour said that the Commissioner was "effectively contending that the Court should now embark upon his undetermined alternative case for the sole purpose of visiting an additional penalty on the CFMEU". At [17], his Honour described such a course as a "hypothetical trial" and "extraordinary waste of resources".
87 Second, his Honour said at [18]-[19] that, in order to accept the Commissioner's proposal it would have been necessary to examine the conduct and state of mind of the two union officials to see whether, if they were attributed to the CFMEU, it would be sufficient to establish all the elements of the contraventions, namely the negation of choice and the use of unlawful, illegitimate or unconscionable conduct. He observed that, at that stage of the proceedings, that course would have been very difficult, if not impossible, since the operation of the presumption in s 361 of the FW Act had made that inquiry unnecessary. In any event, his Honour considered that it was unlikely that all the critical elements could be established for reasons it is unnecessary to recount here.
88 It is his Honour's obiter remarks upon which the respondents relied. His Honour said at [21]-[23] that, even if it had been appropriate or possible to take the course the Commissioner proposed, it would likely have resulted in the same outcome, citing Robinson and The Yarra's Edge Case as well as Australian Building and Construction Commissioner v Harris [2017] FCA 733 in which Siopis J referred to those judgments with approval.
89 The Bay Street Case was an action brought by the Commissioner under the FW Act against the Union and two of its officers for taking "adverse action" against a building contractor contrary to para 346(b) of the Act because they engaged in industrial activity within the meaning of para 347(b) and organised action against the contractor with intent to coerce it to engage in industrial activity contrary to s 348. A person engages in "industrial activity" if, amongst other things, the person does or does not "comply with a lawful request made by, or requirement of, an industrial association" (para 347(b)(iv)) or "represent or advance the views, claims or interests of an industrial association" (para 347(b)(v)) .
90 As Bromberg J summarised the position at [2] of his reasons, the Commissioner's case was that the Union had initiated a work stoppage in breach of the general protection provisions of the FW Act after the head contractor at a construction site refused its request to provide additional amenities for the workers there. The action was brought against the Union and two of its officers, Long and Benstead. The Commissioner alleged that, by its failure to comply with the Union's request, the building contractor engaged in "industrial activity" within the meaning of para 347(b)(iv) or 347(b)(v). His Honour found (at [86]) that, by not making any change to site amenities in the face of the Union's demand, the building contractor failed to comply with a lawful request made by, or requirement of, an industrial association within para 347(b)(iv) and so engaged in "industrial activity" within para 346(b) and s 348. His Honour found (at [97]) that Long and Benstead organised industrial action against the building contractor because it did not accede to their request or demand and that each had taken adverse action against the contractor in contravention of para 346(b). His Honour was satisfied (at [108]) that both Long and Benstead contravened s 348 as alleged, by organising action against the contractor with an intent to coerce it to engage in "industrial activity".
91 His Honour then turned to consider the liability of the Union under s 793. His Honour accepted (at [113]) that the conduct of Long and Benstead is taken to have been engaged in also by the Union but, following Robinson and Carrara, considered that the conduct of the Union was "the sum of the conduct of Long and Benstead" and, consequently, held that the Union committed a single contravention of each of ss 346 and 348.
92 The Union has appealed and the Commissioner has cross-appealed. This finding is the subject of the cross-appeal.
93 The Commissioner's argument that "a straight application of the language of s 94" means that the Union contravened s 47 three times must be rejected. On the plain words of the section, it is the conduct of the union officials which is attributed to the Union, not their contraventions. In this respect, s 94 is to be contrasted with s 92(2) of the BCIIP Act, which relevantly provides that a person who contravenes subs (1), by, for example, aiding, abetting, counselling or procuring a contravention of a civil remedy provision or being knowingly concerned in, or a party to, such a contravention "is taken to have contravened the provision". The difference in language used in ss 92(2) and 94(1) provides an important contextual indication that Parliament did not intend to fix a body corporate with the contraventions of the officials on whose behalf they engaged in the relevant conduct but only, as the plain words of s 94(1) suggest, their conduct. Siopis J made a similar point in Harris (at [49]) with respect to s 793 of the FW Act, contrasting it with the accessorial liability provision in that Act - s 550(1), which provides that "[a] person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.".
94 The Commissioner also relied on the Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 3) [2017] FCA 10 (The Royal Adelaide Hospital Case) in which Besanko J was taken to Robinson and The Yarra's Edge Case but did not adopt the same approach.
95 The Royal Adelaide Hospital Case was the judgment on orders following Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 607. In that case the Director alleged that, during a meeting at a building site for the new Royal Adelaide Hospital, two union officials separately made threats to take action against joint venture partners involved in the construction works at the site with intent to coerce the joint venturers, through their employees who were present at the meeting, not to exercise a workplace right. Besanko J found that the allegation had been proved and held that, by making those threats, each of the union officials contravened s 343(1) of the FW Act. By reason of s 363 of the Act, which relevantly provides that action taken by an officer or agent of an industrial association acting in that capacity is taken to be action of an industrial association, his Honour observed that the actions of the union officials are taken to be the actions of the union, and therefore held that the union also contravened s 343(1).
96 In The Royal Adelaide Hospital Case, Besanko J rejected the union's contention that the union had contravened s 343(1) only once. His Honour observed at [23]-[29] that there were four ways in which related conduct which appears to involve multiple contraventions is properly characterised as one contravention or where "the overall nature of the conduct constituting the contraventions by the individuals is such that it is a single course of conduct". The first he characterised as "where there is undoubtedly more than one contravention by individuals, but because of the nature of the conduct and the terms of the section allegedly contravened, there is for attribution purposes, but one contravention by the party to whom the conduct is attributed". The second is where the relevant statute gives the Court the power to treat two or more contraventions as one contravention because there is one course of conduct by the same person. The FW Act, for example, gives the Court such a power in s 557. It provides that, for the purposes of Pt 4-1 of the Act, where a court has not previously imposed a pecuniary penalty for a contravention of such a provision, two or more contraventions of certain civil remedy provisions (of which s 343 was not one) are "taken to constitute a single contravention" if they are committed by the same person and arose out of a course of conduct by that person. The third is where there are a number of contraventions within a single course of conduct. The fourth his Honour identified as the application of the totality principle.
97 Only the first is presently relevant. His Honour said at [24] that there was some support for that approach in the authorities, referring later to Robinson and The Yarra's Edge Case, but it was "not clear support".
98 In rejecting the union's argument, his Honour observed at [37]:
There were two threats in this case, one by Mr Cartledge and the other by Mr McDermott. No doubt they were closely related, as I have indicated, but they remain two threats. I accept that s 363(1) of the FW Act does not in terms attribute the contraventions to the CFMEU and that it is the actions of Mr Cartledge and Mr McDermott which are attributed to the CFMEU. Nevertheless, those actions involved two threats. Once that conclusion is reached, it is not clear to me by what process of reasoning or principle a court would be entitled to say that for attribution purposes there was one contravention rather than two, or by reference to what principle a court would be able to distinguish between cases involving one contravention as distinct from two contraventions. It might be different if the words of the provision contravened made it clear that there could be only one contravention. Otherwise, in my opinion, the course of conduct or single course of conduct considerations are reflected in one of the other three approaches where applicable. I would also note it may be that the presence of s 557 of the FW Act and the limitations on its scope in s 557(2) of the FW Act bears upon the problem in the case of civil remedy provisions not referred to in s 557(2) of the FW Act. I do not think the first approach can be taken in the case of s 343(1) of the FW Act.
99 The Commissioner argued that the same analysis might be applied equally here as each of Messrs O'Mara, Smith and Bolitho admittedly engaged in action the purpose of which was to prevent or restrict persons from accessing a building site and "those distinct 'engagements' in 'action' are not capable of being rolled together into an amorphous single act".
100 I disagree. The present case is distinguishable. In contrast to The Royal Adelaide Hospital Case, this case concerned one unlawful act, not multiple unlawful acts. The allegation the Commissioner made here was that the union officials engaged in a single unlawful picket. The unlawful picket was pleaded as a collective action in which the three union officials, amongst others, participated. The facts as agreed made out that allegation. The part each individual played in the picket was not delineated either in the pleading or the agreed facts. In substance, the actions of one were attributed to all. Those actions were said to be taken by "the picketing group".
101 The Commissioner also relied on the remarks of Dowsett and Rares JJ in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 (The Perth Airport Project Case) at [97].
102 The Perth Airport Project Case concerned a blockade of about 100 protesters at a construction site apparently organised by certain officials and organisers of the CFMEU and in which they and other officials participated. The officials/organisers in question were Messrs Buchan, McDonald, Molina and Joshua. It was an agreed fact that the union had a reasonable belief that one of the subcontractors may have failed to pay some of its employees for some of their work on the site. The blockade lasted for nearly three and a half hours and prevented 145 to 150 site workers from attending work. The Commissioner alleged that the union and the officials and organisers had engaged in coercive conduct in contravention of s 348 of the FW Act.
103 The primary judge (Siopis J) upheld the respondents' contention that the contraventions by Buchan, McDonald, Molina and Joshua, which were attributed to the union, should be treated as a single course of conduct and also held that threats made by McDonald to return the following day were also part of the same course of conduct. As I have already pointed out, and as is uncontroversial in the present case, it is not the contraventions but the conduct which is attributed to the union. His Honour did not find in terms, however, that there had been only one contravention by the union.
104 On appeal, the Commissioner argued that the primary judge should have treated the conduct of each of Buchan, McDonald, Molina and Joshua as five contraventions attributed to the CFMEU rather than as a single course of conduct. Dowsett and Rares JJ said at [96]-[97]:
The CFMEU's five contraventions arose by reason that the conduct of Messrs McDonald (on both occasions), Buchan, Molina and Joshua, were its conduct, as the agreed facts acknowledged. The success of the blockade depended on the activities of those two officials and two organisers in organising it so that about 100 people were present and made it effective. The coercion was the more forceful because it had more people involved.
The Parliament did not enlist s 557(2) to deem that a course of conduct involving multiple contraventions of s 348 would be punishable as a single contravention for a first offender. It is important to recognise that coercion is a particularly serious form of industrial (mis)conduct. If more principal actors are involved in unlawful coercion, there is a potentially greater impact on the target. Of course, all will depend on the facts. Here, the CFMEU acted through four agents to organise and execute the blockade. Its enlistment of each agent and his conduct was a separate contravention of s 348 and each made the overall impact and effectiveness of the blockade greater. There was some overlap between the conduct of each of Messrs Buchan, McDonald, Molina and Joshua, whose acts created each contravention by the CFMEU. However, the CFMEU knew that the conduct of each of its officials or organisers, whom it deployed in effecting its coercion, would render it liable for a separate contravention of s 348.
105 In their concluding remarks their Honours excoriated the CFMEU for its conduct. At [102] their Honours said:
The CFMEU can be seen to have chosen to pay penalties in preference to obeying the law. It is not entitled to any leniency in the circumstances of the conduct complained of. The legislative purpose in the Act, of creating separate contraventions and imposing pecuniary penalties on organisations, such as the CFMEU, for conduct engaged in on the one occasion by their agents, will not be served by equating multiple contraventions by a recidivist as a wholly single course of conduct. Each separate contravention by the CFMEU's officials and organisers on 22 October 2013 had a distinct effect and impact in making the blockade of a very large site effective. The Act contemplates that the Court can fix a high price, by way of aggregated penalties, on an organisation in circumstances such as the present to deter future repetition.
(Emphasis added.)
106 The issue to which these remarks were directed was not the issue in the present case. In that case it is clear that the Court, both at first instance and on appeal, considered that the union was fixed with five contraventions. The primary judge treated them as a single course of conduct, a course with which North J agreed, but with which Dowsett and Rares JJ strongly disagreed. It provides no answer, or at least no direct answer, to the question whether in the present case the Union contravened s 47 of the BCIIP Act once or three times.
107 As a matter of judicial comity single judges of this Court are expected, if not obliged, to follow decisions of other single judges of the Court concerning the same legal issue, particularly questions of statutory construction, unless they consider the decisions to be "plainly" or "clearly" wrong: BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 at [83]-[89] (Greenwood J), Sundberg J agreeing at [1]. French J observed in Nezcovic v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 190 at [52]:
Judicial comity does not merely advance mutual politeness between judges of the same or co-ordinate jurisdictions. It supports the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. Where questions of law and in particular statutory construction are concerned, the view that a judge who has taken one view of the law or a statute is 'clearly wrong' is not likely to be adopted having regard to the choices that so often confront the courts particularly in the area of statutory construction.
108 The Commissioner argued that the approach taken in Robinson and the cases that followed it was plainly wrong.
109 The threshold is a high one and the Commissioner's argument did not reach it. Indeed, it amounted to little more than an assertion. In BHP Billiton at [86] Greenwood J observed:
In cases where a party advised and represented by experienced senior counsel properly discharging the duty owed to the Court urges upon the Court the merits of the reasoning of the authority in the resolution of the immediate case, it would be difficult to conclude that the authority is "plainly wrong" notwithstanding that a judge might reach an entirely different view of the proper construction of the provision against the background of the facts found and thus conclude that the early authority is wrongly decided. There is a distinction between concluding a decision is wrongly decided and a conclusion that an earlier authority is "plainly wrong" and thus ought not to be applied and followed.
110 Earlier, at [83] his Honour said:
The circumstances in which a judge in the exercise of the Court's original jurisdiction might find a decision of a single judge of the Court to be "plainly wrong" should be approached with real and deliberative caution and would generally involve that class of case where for one reason or another there is transparent error such as the consideration of an incorrect statutory instrument in the resolution of the controversy; consideration of a provision of a statute in a form not enacted at the relevant date of the events or a failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error; a failure to apply having regard to the issues raised by the controversy, a binding decision of a Full Court of this Court or the High Court; a failure to apply a decision of a Full Court of this Court, an intermediate Court of Appeal of another jurisdiction or an authority of the High Court expressing a clear persuasive emphasis of opinion in favour of a particular conclusion (particularly concerning legislation of the Commonwealth Parliament); or some other circumstance that has caused a dispositive adjudication of the controversy to miscarry.
111 The Commissioner made no attempt to demonstrate that the reasoning in Robinson was affected by such an error and I am not satisfied that the reasoning in Robinson was plainly or clearly wrong.
112 Further, I reject the Commissioner's contention that he alleged in his pleading that the Union had contravened the BCIIP Act three times. The allegation he made was at [58] of the amended statement of claim. It reads:
In the premises, the CFMMEU is liable for all contraventions of section 47 of the BCIIP Act, committed by O'Mara, Smith and Bolitho, as pleaded in the amended statement of claim.
It seems to me that this simply begs the question. It is at least ambiguous.
113 Having regard to the way in which the case was pleaded and on the basis of the facts as agreed and found, I find that there was one contravention by the Union through three of its officials acting in concert. The picket was pleaded as a collective action of up to 20 individuals. It was "the picketing group" that was alleged to have engaged in the conduct and it was "the picketing group" that was found to have done so. No distinction was drawn between the activities of any members of the group. Each of the three union officials contravened s 47 by engaging in the picket and it is their conduct which is attributed to the Union by s 94, not their contraventions. As in The Yarra's Edge Case, it would be "artificial" to regard the conduct of the Union as "a separate engagement" in respect of the conduct of each of the union officials. There was only one picket. The Union did not engage in the picket three times. Rather, since it is taken to have engaged in the conduct of the officials, it, too, contravened the Act by engaging in an unlawful picket.