Double jeopardy
31 Although Counsel for the Commissioner and Counsel for the Respondents not surprisingly advanced competing submissions as to where within the range agreed the "appropriate" penalty otherwise was to be fixed, the fundamental difference between the parties in the present proceeding centred on the application of s 556 of the Fair Work Act and s 91 of the Building Industry Act.
32 The Commissioner contends that neither section precludes the imposition of a penalty as against both Mr Sloane and the CFMMEU because the "particular conduct" which is the subject of the s 500 contravention of the Fair Work Act and the conduct the subject of the contravention of s 46 of the Building Industry Act are different. But the Commissioner further contends that the "totality principle" applies in order to ensure that the overall penalties to be imposed are just and appropriate.
33 With reference to the Further Statement of Agreed Facts the Commissioner contends that what would be necessary to make out a contravention of s 500 of the Fair Work Act:
would not involve the proof of any fact going to the "engagement" of Mr Sloane in any of the conduct pursued on 20 February 2018, which would be necessary for proof of contravention of s 46 of the Building Industry Act, but only proof of those facts exposing Mr Sloane as having "organised" that conduct; and
would involve proof of those facts going to (for example) the request made of Mr Sloane and his production of his entry permit and proof of those facts (in particular) going to his improper purpose in seeking entry to the site - those facts including, for example, the matters set forth in the Further Statement of Agreed Facts at paras [11(e) and (f)] and [19].
That difference in respect to those facts which would not be necessary to establish a contravention of s 500 and those additional facts which would be necessary to prove that contravention is such that, in the Commissioner's submission, the present case is taken outside of the reach of either s 556 of the Fair Work Act or s 91 of the Building Industry Act.
34 The CFMMEU and Mr Sloane jointly contend that the sections do apply, such that penalties can be imposed for either the s 500 contravention of the Fair Work Act or for the contraventions of s 46 of the Building Industry Act - but not both. The facts common to both contraventions are such as to bring the case within the statutory expression "in relation to particular conduct" as that phrase is employed in both s 556 of the Fair Work Act and s 91 of the Building Industry Act.
35 The submission of the Commissioner, it is respectfully concluded, prevails.
36 In Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367 at [39]-[40], Jessup J rejected a construction of s 556 that confined the operation of that section to those cases where the statutory provisions giving rise to the multiple contraventions "involved precisely matching elements". His Honour concluded that "…the reference to 'particular conduct' in s 556 is to what the person actually did, with all of its attributes and in its whole context…". There in issue were contraventions of ss 417 and 421 of the Fair Work Act. In reaching his conclusions, his Honour reasoned as follows:
[36] … The question arises whether, having imposed a penalty on a particular respondent for his or its contravention of s 417, the court is prevented by s 556 from imposing a separate penalty for his or its contravention of s 421.
[37] The predecessor to this provision was introduced into the Workplace Relations Act 1996 (Cth) by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), but neither that predecessor nor s 556 itself has, it seems, been the subject of any judicial examination in any context that would yield useful results for the present occasion. The relevant passage in the Explanatory Memorandum for the Bill which became the Act of 2005 is unrevealing as to how the section was intended to be applied in the kind of problematic situation which now confronts the court.
[38] The problem has two dimensions. The first arises in what I shall describe as the simple case of two or more provisions having been contravened by the same conduct. That looks as though it ought to attract the operation of s 556, but counsel for the applicant submitted that the section operates only where the constituent elements of each contravention are the same. For example, in the matter which is presently under consideration - industrial action taken in contravention of ss 417(1) and 421(1) - the elements were not the same. Under s 417(1), but not under s 421(1), it was an element that the relevant enterprise agreement be within term. Under s 421(1), but not under s 417(1), it was an element that an order by the Commission proscribing the industrial action have been made. It was submitted that, in this sense, it could not be said that the penalty for which the FW Act provided related to the same "particular conduct" in each case.
[39] I think it unlikely that the draftsman had such a limited operation in mind when s 556 was on the drawing board. I doubt that he or she would have contemplated that there were, either in the FW Act as such or in that Act and in another law of the Commonwealth, two or more provisions which defined contravening conduct in terms that involved precisely matching elements. I am not aware of any such situation, and counsel for the applicant drew my attention to none. It is hard to imagine why the legislature would double up with identical legislation in the way that would be required to provide a setting for the viability of this submission on behalf of the applicant.
[40] The better view is that the reference to "particular conduct" in s 556 is to what the person actually did, with all of its attributes and in its whole context. If that conduct gives rise to liability to penalty under two or more provisions, the section is, in my view, engaged. In the present case, the conduct of the workers who took the industrial action attracted liability under s 417(1) and under s 421(1). It is true that, additionally to that conduct, there were adjectival elements the presence of which were necessary ingredients of the provisions respectively, and that these elements differed as between the two (the in-term agreement under s 417(1) and the Commission's order under s 421(1)), but, as it happened, both were in fact present on 31 March 2014 and both gave legal consequences to what the workers actually did. In my view, s 556 would stand in the way of penalties being imposed on the workers themselves under both sections, and the same applies where others, such as the organisers, were deemed to have contravened because of their involvement in that very conduct.
See also: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal) [2020] FCAFC 9 at [32] to [38] per Reeves, Rangiah and Bromwich JJ.
37 On the facts of the present case, it is not merely because a contravention of s 500 of the Fair Work involves the proof of facts different to those necessary to prove a contravention of s 46 of the Building Industry Act - and hence different constituent elements for each contravention - that takes the facts outside the operation of s 556 of the Fair Work Act and s 91 of the Building Industry Act. Section 500, it is respectfully considered, is directed at fundamentally different conduct to that embraced by s 46 of the Building Industry Act - the former is directed to prohibiting a person exercising a right of entry from hindering or obstructing others; the latter is directed to organising or engaging in unlawful industrial action.