Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union

Federal Court of Australia|2022-09-12|Before: Mr P, O'Callaghan J

TO: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION, KANE PEARSON, DARIO MALONI, AND PAUL TZIMAS.

(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

THE COURT DECLARES THAT:

On 13 July 2018, the second respondent contravened s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) when he organised employees engaged to perform building work at the construction project at the University of Melbourne Veterinary School in Werribee (Site) to engage in unlawful industrial action by refusing to perform building work between 11:05am and 12:05pm.
On 13 July 2018, the third respondent contravened s 46 of the BCIIP Act when he organised employees engaged to perform building work at the construction project at the Site to engage in unlawful industrial action by refusing to perform building work between 11:05am and 12:05pm.
On 26 July 2018, the second respondent contravened s 46 of the BCIIP Act when he organised employees engaged to perform building work at the Site to engage in unlawful industrial action by refusing to perform building work between 9:50am and 12:30pm.
On 26 July 2018, the third respondent contravened s 46 of the BCIIP Act when he organised employees engaged to perform building work at the Site to engage in unlawful industrial action by refusing to perform building work between 9:50am and 12:30pm.
On 26 July 2018, between 9:50am and 10:30am, the fourth respondent contravened s 46 of the BCIIP Act by being knowingly involved in the contraventions of s 46 by the second and third respondents the subject of declarations 3 and 4.
The first respondent contravened: (a) s 46 of the BCIIP Act on 13 July 2018 by reason of the conduct of the second and third respondents referred to in declarations 1 and 2; (b) s 46 of the BCIIP Act on 26 July 2018 by reason of the conduct of the second, third and fourth respondents referred to in declarations 3, 4 and 5.

THE COURT ORDERS THAT:

The first respondent pay the following pecuniary penalties: (a) $180,000 in respect of its contraventions referred to in declaration 6(a); (b) $180,000 in respect of its contraventions referred to in declaration 6(b).
The second respondent pay the following pecuniary penalties: (a) $35,000 in respect of his contravention referred to in declaration 1; (b) $35,000 in respect of his contravention referred to in declaration 3.
The third respondent pay the following pecuniary penalties: (a) $25,000 in respect of his contravention referred to in declaration 2; (b) $25,000 in respect of his contravention referred to in declaration 4.
The fourth respondent pay a pecuniary penalty of $15,000 in respect of his contravention referred to in declaration 5.
The requirement for service of these orders on the respondents pursuant to r 41.07(1) of the Federal Court Rules 2011 (Cth) be dispensed with.
The pecuniary penalties referred to in orders 1, 2, 3 and 4 be paid to the Commonwealth of Australia within 28 days.
There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an application by the Australian Building and Construction Commissioner (the Commissioner) for declarations that the respondents contravened s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act), and for pecuniary penalties in respect of those contraventions. 2 On 21 September 2020, the parties agreed partially to resolve this proceeding by the Commissioner filing a Further Amended Statement of Claim (FASOC) that removed a number of allegations of contraventions of the Fair Work Act 2009 (Cth) (FW Act) and the respondents, by their amended defences, admitting that they had contravened s 46 of the BCIIP Act. 3 The respondents admitted all material facts alleged in the FASOC. Resolution of the proceedings on this basis allowed a five day liability hearing scheduled to commence on 26 October 2020 to be vacated, and for the matter to proceed on the basis that two discrete legal questions relating to liability would be resolved on the pleadings and the matter could otherwise proceed to a penalty hearing. 4 The initial hearing took place on 29 October 2020. At that hearing, the parties acknowledged that the two contested liability issues were the subject of an appeal by the first respondent, the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) (2020) 282 FCR 1. Accordingly, I adjourned the hearing until that judgment had been delivered. 5 On 10 November 2020, the Full Court handed down its decision in The Bay Street Appeal. On 25 June 2021, the High Court of Australia refused the Commissioner's application for special leave to appeal that decision. See Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2021] HCATrans 115. 6 I then made orders by consent for the parties to file supplementary submissions in light of The Bay Street Appeal, which they did. In those submissions, the Commissioner accepted that as a result of The Bay Street Appeal, there remained only one issue in contest in relation to the question of liability. 7 The matter then proceeded to a further hearing on 4 November 2021. After that hearing, and while judgment was reserved, the High Court delivered its judgment in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 399 ALR 599 on 13 April 2022. The parties sought, and I made, orders providing for them to file further submissions addressing the impact of that decision on this proceeding, and they did so. 8 By amended defences dated 22 September 2020, the respondents admitted the following contraventions of the BCIIP Act: (a) the second respondent, Kane Pearson, admitted to two contraventions of s 46 of the BCIIP Act for organising industrial action at the University of Melbourne Veterinary School in Werribee (U-Vet Site) on 13 and 26 July 2018; (b) the third respondent, Dario Maloni, also admitted to two contraventions of s 46 of the BCIIP Act for organising industrial action at the U-Vet Site on 13 and 26 July 2018; (c) the fourth respondent, Paul Tzimas, admitted to one contravention of s 46 of the BCIIP Act for being a knowing participant in the s 46 contraventions by Messrs Pearson and Maloni at the U-Vet Site on 26 July 2018; and (d) the first respondent, the CFMMEU, admitted that pursuant to ss 94 and 95 of the BCIIP Act, the conduct of Messrs Pearson, Maloni and Tzimas was taken to be the CFMMEU's conduct and that, as a consequence, the CFMMEU contravened s 46 of BCIIP Act. 9 Although the CFMMEU admitted that the conduct of Messrs Pearson, Maloni and Tzimas was taken to be its conduct, it contended that it had contravened s 46 of the BCIIP Act only twice (one contravention for each of 13 and 26 July 2018), rather than five times as alleged by the Commissioner (one contravention for each individual respondent's contraventions of s 46). 10 The Commissioner seeks declarations recording the above contraventions, and the imposition of appropriate pecuniary penalties on each respondent for the declared contraventions, including a personal payment order against Mr Pearson.

The facts 11 The admitted facts are as follows. 12 Kane Constructions Pty Ltd was the head contractor for a construction project at the U-Vet Site for the construction of a four-storey learning and teaching building, an extension of the veterinary hospital (the project) in Werribee, Victoria. At the time, Kane Constructions engaged various subcontractors to carry out the building work at the U-Vet Site, including Austar Investments (AUST) Pty Ltd, Associated Rigging Aust Pty Ltd, Melbourne Facades Pty Ltd, and Quadrant Mechanical Services Pty Ltd. Those subcontractors employed construction workers to attend the U-Vet Site and perform building work on the project. 13 Kane Constructions employed managers to oversee the progress of works at the project, including Paul Christian (Senior Project Manager), Peter Spence (Project Manager), and Stanko Ratkovic (Site Manager). 14 Mr Maloni was an employee of Kane Constructions. He was the CFMMEU shop steward and a health and safety representative at the U-Vet Site. 15 Messrs Pearson and Tzimas are, and were at all relevant times, officers of the CFMMEU.

13 July 2018 16 At about 7:30am on 13 July 2018, the weekly "toolbox" meeting was conducted at the U-Vet Site and attended by all workers. At about 8am, at the conclusion of the meeting, Mr Maloni told the Austar workers that they were not to return to work because their CBUS and Incolink payments were not up to date. The Austar workers complied with Mr Maloni's direction that they wait in the lunch shed. 17 The Austar workers returned to perform building work at about 9am. At about 9:50am, Mr Pearson entered the U-Vet Site. Mr Spence told Mr Pearson that he was not allowed to be on the U-Vet Site, and that he had to leave. Mr Pearson ignored the direction from Mr Spence to leave and entered the site's meeting room to speak with Mr Maloni. 18 At about 11am, a further toolbox meeting was held with about 110 workers. At the conclusion of that toolbox meeting, Mr Maloni addressed the gathered workers and said: "Wait! Wait! All of the CFMEU members stay behind". Approximately 35 workers stayed behind with Messrs Pearson and Maloni. Mr Pearson said to them, "let's go to the site sheds". At about 11:05am, Messrs Pearson and Maloni led those workers into the site sheds, held the door shut so that Messrs Spence and Christian could not enter, and addressed the workers for about 30 minutes. 19 At about 11:40am, Mr Christian entered the site sheds. He told the workers that the meeting was unlawful and directed the workers to return to work immediately. Mr Pearson attempted to yell over the top of Mr Christian, saying: "You can't address my men. I'm not letting you address my men. You're intimidating my men". 20 At about 11:50am, most of the workers returned to work. However, Mr Maloni prevented the remainder of them from leaving the sheds by blocking the doorway. At about 12:05pm, Mr Maloni moved out of the doorway and the remaining workers resumed work.

26 July 2018 21 On 26 July 2018, Messrs Pearson and Tzimas entered the U-Vet Site together at about 8:30am. They entered the first aid room, where Mr Maloni was waiting, for the purpose of holding discussions with him. 22 Mr Spence then entered the first aid room and told Messrs Pearson and Tzimas that their entry was unlawful and they had to leave. They refused to do so, and held discussions with Mr Maloni for about ten minutes. 23 At 9:30am, all building workers at the U-Vet Site that day entered the lunch sheds to take their "smoko" break. Mr Maloni, in the company of Messrs Pearson and Tzimas, entered the sheds and held a meeting with the workers. At 9:50am, at the conclusion of the break, a number of workers failed to resume work, including at least six employees of Melbourne Facades and ten employees of Quadrant. 24 Messrs Pearson, Tzimas and Maloni then held a meeting with Mr Spence and other managers of Kane Constructions. Mr Tzimas raised what he alleged to be inadequate lux lighting levels in the level 4 stairway and Mr Pearson had the following exchange with Mr Spence: Mr Pearson: All the workers are not going back to work until the issues are fixed. Mr Spence: For any safety issues WorkSafe can come to site. Mr Pearson: WorkSafe have already been notified and are coming to site. 25 Immediately after this meeting, Mr Spence inspected the lighting in the level 4 stairway and considered it was adequate. At about 10:30am, Mr Spence entered the lunch sheds and addressed the workers, saying: There are no safety issues and no immediate risk to health and safety. As Kane [Constructions] management we are instructing you all to go back to work. Stopping work now is considered unlawful industrial action. 26 Despite the direction of Mr Spence, the workers refused or failed to return to work. Shortly after this, Mr Tzimas left the U-Vet Site. 27 At about 11:30am, following a site inspection by two inspectors, WorkSafe concluded that there was no reasonable cause for employees to be concerned for their health and safety and there was no reason for a cessation of work. 28 At about 12pm, after this conclusion had been communicated to them, Messrs Pearson and Maloni returned to the lunch sheds. Mr Pearson addressed the workers for about 30 minutes and Mr Maloni positioned himself across the doorway, preventing anyone from entering or exiting the lunch sheds. Messrs Pearson and Maloni left the lunch sheds at about 12:30pm. 29 At about 12:30pm, Mr Spence entered the lunch sheds and directed the workers to return to work. They did so shortly after.

The number of contraventions 30 By its amended defence, the CFMMEU admitted that by operation of ss 94 and 95 of the BCIIP Act, where Messrs Pearson, Maloni or Tzimas have engaged in conduct or taken action, the CFMMEU is also taken to have engaged in that conduct or taken that action. 31 The CFMMEU's defence is that, at the liability stage of the analysis, the conduct and action of Messrs Pearson, Maloni and Tzimas should be aggregated and consolidated into a single contravention of s 46 of the BCIIP Act for each day in question, 13 and 26 July 2018 (that is, two contraventions in total). 32 The Commissioner said that the CFMMEU has contravened s 46 of the BCIIP Act five times, being one contravention for each of the individual respondent's contraventions. 33 Chapter 5 of the BCIIP Act is headed "Unlawful action". 34 Section 45 provides that Chapter 5 applies, relevantly, to: (b) action that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a [corporation]; (c) action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a [corporation]: (i) to take, or not take, particular action in relation to another person; or (ii) to threaten to take, or not take, particular action in relation to another person. 35 Section 46 provides: "A person must not organise or engage in unlawful industrial action". 36 Here, the respondents admitted that their admitted conduct constituted "industrial action" within the meaning of ss 5 and 7 of the BCIIP Act, and that by reason of the conduct of the individual respondents, the relevant workers were "organised" to engage in unlawful industrial action by them. 37 Section 92(1)(d) relevantly provides that a person must not be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil remedy provision. Section 92(2) deems a person who has contravened s 92(1)(d) in relation to a civil remedy provision to have contravened that civil remedy provision. 38 Section 94(1)(a) relevantly provides that any conduct engaged in on behalf of a body corporate by an officer, employee or agent of the body within the scope of his or her actual or apparent authority is taken, for the purposes of the BCIIP Act, to have been engaged in also by the body. Section 94(2) (read with s 94(3)) relevantly provides that such an individual's state of mind (including his or her intentions and purposes, and his or her reasons for them) is deemed to be also the body's state of mind. 39 For the purposes of the BCIIP Act, ss 95(1)(b) and (d) deem an action taken by an officer or agent of a union acting in that capacity, or a union member who performs the function of dealing with an employer on behalf of that member and other members of the union acting in that capacity, to be an action of the union. Section 95(3) attributes to the union the state of mind of the relevant officer, agent or member in taking that action. (Section 95 uses the term "building association", which, pursuant to s 5 of the BCIIP Act and s 12 of the FW Act, includes a union registered under the Fair Work (Registered Organisations) Act 2009 (Cth).) 40 Part of the Commissioner's case rests on his pleaded case. Relevantly, the FASOC was in these terms: [As to 13 July 2018] 45. Pearson "organised" the 13 July Stopped Workers [being the approximately 35 workers who stayed behind after the toolbox meeting, referred to at [18] above] to engage in unlawful industrial action by: (a) directing the 13 July Stopped Workers to follow him to the site sheds, rather than returning to performing the "building work" that they had attended the U-Vet Site to perform; (b) leading the 13 July Stopped Workers into the site sheds; (c) blocking the doors of the site sheds after the 13 July Stopped Workers had entered the site sheds; (d) addressing the 13 July Stopped Workers for about 30 minutes; (e) obstructing Christian from directing the 13 July Stopped Workers who he referred to as "my men" to return to performing "building work". 46. Maloni "organised" the 13 July Stopped Workers to engage in unlawful industrial action by: (a) directing the 13 July Stopped Workers to "stay behind" and not to return to performing "building work" following the 11.00am toolbox meeting; (b) leading the 13 July Stopped Workers into the site sheds; (c) blocking the doors of the site sheds after the 13 July Stopped Workers had entered the site sheds; (d) addressing the 13 July Stopped Workers for about 30 minutes; (e) physically preventing the remaining workers from returning to work (as pleaded in paragraph 40). 47. In the premises, (a) Pearson; (b) Maloni, "organised" the 13 July Stopped Workers to engage in unlawful industrial action between about 11.05am and 12.05pm on 13 July 2018 in contravention of s 46 of the BCIIP Act. … 50. At all relevant times on 13 July 2018: (a) [Deleted] (b) pursuant to s 94 of the BCIIP Act; (c) [Deleted] Pearson and Maloni had actual, apparent or ostensible authority to act on behalf of the CFMMEU. 51. Further, at all relevant times on 13 July 2018: (a) pursuant to s 95 of the BCIIP Act; (b) [Deleted] Pearson's and Maloni's conduct is taken to be conduct of the CFMMEU, by reason that the conduct of Pearson and Maloni constituted conduct of an officer or agent of the CFMMEU acting in that capacity. 52. In the premises, by reason of the matters in paragraphs 47 and 49 to 51 above, the CFMMEU contravened s 46 of the BCIIP Act. … [As to 26 July 2018] 99. By reason of the matters pleaded in paragraphs 69 to 75, and 80 to 83 the 26 July Stopped Workers [being those workers who entered the lunch sheds and took their "smoko" break referred to at [23] above] were "organised" to engage in unlawful industrial action by: (a) Pearson; (b) Maloni; 100. The fact that Pearson "organised" the 26 July Stopped Workers to engage in unlawful industrial action can be inferred by the facts that: (a) at 9.30am, Pearson entered the lunch sheds where the 26 July Stopped Workers were; (b) prior to 9.30am, none of the 26 July Stopped Workers had raised any imminent issue of safety at the U-Vet Site with Kane [Constructions] management; (c) shortly after 9.30am, Pearson addressed the 26 July Stopped Workers; (d) the 26 July Stopped Workers were rostered to return to perform "building work" at 9.50am following their smoko break; (e) following the address by Pearson, the 26 July Stopped Workers failed to return to perform "building work" at the U-Vet Site; (f) Pearson then met with Spence and said "all the workers are not going back to work until the issues are fixed"; Particulars Implicit in this statement by Pearson is that he has control over when the 26 July Stopped Workers will be returning to perform "building work". (g) consistent with this statement, the 26 July Stopped Workers did not return to work despite being expressly directed to do so by Spence; (h) following Worksafe's investigation, at about 12.00pm, the 26 July Stopped Workers then listened to another address from Pearson for about 30 minutes without returning to perform "building work"; (i) the 26 July Stopped Workers only returned to perform "building work" once Pearson had finished this second address. 101. The fact that Maloni "organised" the 26 July Stopped Workers to engage in unlawful industrial action can be inferred by: (a) his involvement with all of Pearson's conduct as pleaded in the preceding paragraph; (b) at about 9.50am, Maloni addressed the 26 July Stopped Workers; (c) at about 12.00pm, he preventing [sic] the 26 July Stopped Workers from returning to perform "building works" by standing in the doorway of the lunch sheds. 102. In the premises, (a) Pearson; (b) Maloni, "organised" the 26 July Stopped Workers to engage in unlawful industrial action between about 9.50am to 12.30pm on 26 July 2018 in contravention of s 46 of the BCIIP Act. … 104. Further, at all relevant times between 9.50am and 10.45am, Tzimas: (a) [Deleted] (b) [was] directly or indirectly, knowingly concerned in or party to; (c) [Deleted] each of Pearson and Maloni to organise the 26 July Stopped Workers to engage in unlawful industrial action on 26 July 2018. 105. By reason of the matters pleaded in the preceding paragraphs, and by operation of s 92(2) of the BCIIP Act: (a) [Deleted] (b) [Deleted] (c) Tzimas; are taken to have contravened s 46 of the BCIIP Act. CFMMEU liability for Tzimas', Maloni's, and Pearson's contraventions 106. At all relevant times on 26 July 2018: (a) [Deleted] (b) pursuant to s 94 of the BCIIP Act; (c) [Deleted] Pearson, Tzimas, and Maloni had actual, apparent or ostensible authority to act on behalf of the CFMMEU. 107. Further, at all relevant times on 26 July 2018: (a) pursuant to s 95 of the BCIIP Act; (b) [Deleted] Pearson's, Tzimas', and Maloni's conduct is taken to be conduct of the CFMMEU, by reason that the conduct of Pearson, Tzimas, and Maloni constituted conduct of an officer or agent of the CFMMEU acting in that capacity. … 110. In the premises of the matters in paragraphs 106 to 107 above, and by reason of the matters in 102, and 105 above, on 26 July 2018 the CFMMEU contravened, or is taken to have contravened … s 46 of the BCIIP Act. 41 Each of these pleaded matters was admitted, with the exception of the pleas against the CFMMEU in [52] and [110], where in both instances it said that it had contravened s 46 of the BCIIP Act once on each respective date, and otherwise denied the paragraphs. 42 The CFMMEU contended that there was only one work stoppage and that on the facts pleaded and agreed, there was only one organising of it on each of 13 and 26 July 2018, albeit undertaken by a total of three human actors, citing by way of comparison The Bay Street Appeal (2020) 282 FCR 1 at 60 [259] (White J). 43 It was further submitted that while it would have been sufficient to establish the CFMMEU's liability that only one official organised the unlawful industrial action on either 13 or 26 July, it does not follow that because multiple officials organised the action that there were multiple contraventions by the CFMMEU. Organising may (and often does) involve collective human activity which is intended to (and does) induce or procure others to engage in a particular activity, and/or which marshals or coordinates that activity. The CFMMEU relied on the decision of Charlesworth J in Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 at 348 [53], where her Honour gave the word "organise" in s 417 of the FW Act (a person must not organise or engage in industrial action) "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)" and found that, in that case, "[t]he CFMEU, as a body corporate, organised one instance of industrial action, albeit through the conduct of two human actors". 44 The Commissioner, on the other hand, submitted that on the facts pleaded and admitted there are distinct acts and conduct of the individual respondents, comprising five discrete contraventions of s 46 of the BCIIP Act by them, as follows: (a) As to 13 July 2018, the actions of Messrs Pearson and Maloni are pleaded at FASOC [31] to [40]. At FASOC [45], the actions of Mr Pearson are distinctly pleaded and it is alleged that by those actions Mr Pearson organised unlawful industrial action. At FASOC [46], the actions of Mr Maloni are distinctly pleaded and it is alleged that by those actions Mr Maloni organised unlawful industrial action. At FASOC [47], it is then alleged that each of Mr Pearson and Mr Maloni individually contravened s 46 of the BCIIP Act. (b) As to 26 July 2018, the actions of Messrs Pearson, Maloni and Tzimas are pleaded at FASOC [53] to [83]. At FASOC [100], there are distinct actions alleged to have been taken by Mr Pearson to organise the unlawful industrial action, and at FASOC [101], there are distinct actions alleged to have been taken by Mr Maloni to organise the unlawful industrial action. At FASOC [102], it is then alleged that each of Mr Pearson and Mr Maloni individually contravened s 46 of the BCIIP Act. Further, at FASOC [104] to [105], it is alleged that Mr Tzimas contravened s 46 by being, directly or indirectly, knowingly concerned in or party to each of the contraventions of Mr Pearson and Mr Maloni. (c) At FASOC [50] to [51] and [106] to [107], the material facts are alleged to activate the attribution provisions of ss 94 and 95 of the BCIIP Act so that the CFMMEU is taken to have engaged in the same acts or conduct as engaged in by the individual respondents. 45 The Commissioner further submitted that the words "is taken" in ss 94 and 95 of the BCIIP Act directly attribute conduct or action of an individual to the body corporate, as distinct from accessorial liability in s 92 of the BCIIP Act, and that there is no textual basis to construe this as requiring or permitting aggregation of individual acts or conduct in this process of attribution to the body corporate. 46 In particular, the Commissioner relied on these passages from the judgment of Besanko J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 3) (Royal Adelaide Hospital Case) [2017] FCA 10 at [23]ff: There are various ways in which related conduct which might seem to involve more than one contravention is properly characterised as one contravention or where, although there are, for example, two contraventions, the overall nature of the conduct constituting the contraventions by the individuals is such that it is a single course of conduct and that is relevant, perhaps highly relevant, to the assessment of penalty. The first way in terms of logical analysis is 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. There is some support for this approach in the authorities. However, it is not clear support. The CFMEU relies on this approach in support of its contention that it has committed only one contravention. The [Director of the Fair Work Building Industry Inspectorate, now the Commissioner] submits that the authorities upon which the CFMEU relied do not support this approach or if they do, they are wrong and should not be followed. The second way is where the relevant statute empowers the Court to treat two or more contraventions as one contravention because there is one course of conduct by the same person. The relevant statutory provision in this case is s 557(1) of the FW Act. The CFMEU relied on that section in this case. However, that reliance is misplaced. Section 557(1) of the FW Act only applies where the contraventions involve one of the sections identified in s 557(2) of the FW Act, and s 343(1) of the FW Act is not one of those sections. The third way is where there is a single course of conduct and, although the number of contraventions remains the same, the fact that there is a single course of conduct is highly relevant to penalty. … The fourth way in which the fact that multiple contraventions arose from a single course of conduct may be taken into account is in the application of the totality principle. The DFWBII did not suggest that this would be inappropriate in this case. I return to the arguments concerning the first approach. I accept that the conduct involving the contraventions by Mr Cartledge and Mr McDermott occurred at about the same time, was over very quickly, was the result of the same matter (i.e., Mr Nunweek contacting some members of the crane crews) and that the threats were to similar effect. The CFMEU relies on two decisions of the Court, being Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; (2016) 241 FCR 338 ("Robinson") and [Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Yarra's Edge Case) [2016] FCA 772]. In Robinson, two officials of the CFMEU organised and encouraged employees of a company to refuse to attend work. They were each found to have contravened s 417(1) of the FW Act. Their conduct was attributed to the CFMEU by virtue of s 793 of the FW Act. An issue arose as to whether the CFMEU had committed one or two contraventions. Unlike this case, the course of conduct provision in the FW Act (i.e., s 557(1)) applied to contraventions of s 417(1) of the FW Act. Charlesworth J noted that the attribution provision which was relevant in the case before her, namely, s 793 of the FW Act did not in express terms attribute the contraventions themselves of the officers to the body corporate, but rather the conduct of the officers (at [48]). I note that the attribution section in this case, namely, s 363(1) of the FW Act attributes the action of the officers or agents to the industrial association. Charlesworth J said that there was one contravention by the CFMEU because there was one instance of industrial action, albeit through the conduct of two human actors, and she placed emphasis on the meaning she gave to the word "organise" in s 417(1) of the FW Act. Her Honour said (at [53]): In reaching my conclusion that the CFMEU committed only one contravention, I have 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). The CFMEU, as a body corporate, organised one instance of industrial action, albeit through the conduct of two human actors. … In The Yarra's Edge Case, Jessup J was dealing with contraventions of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) ("BCII Act") and his Honour held that, although there were five organisers who had each contravened the Act, the CFMEU in that case had contravened s 38 of the BCII Act once (at [19]). His Honour took a similar approach to that taken by Charlesworth J in Robinson. … 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 … … I hold that there were two contraventions by the CFMEU. I will take the matters identified in paragraph 31 above into account when considering the totality principle. 47 In my view, if I may with respect adopt words used by Katzmann J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (WGC Cranes Case) [2021] FCA 622; (2021) 307 IR 411 at 428 [96], in this case, as in that case, "[t]he actions of the Union officials which [were] attributed to the Union were not collective acts, albeit that they had a common purpose". 48 On 13 July 2018, Mr Pearson entered the U-Vet Site at about 9:50am, and it was he who ignored Mr Spence's direction to leave the site and instead entered the site's meeting room to speak with Mr Maloni. 49 About 70 minutes later, at another toolbox meeting, Mr Maloni addressed the gathered workers and demanded that all of the CFMMEU members stay behind. It was Mr Pearson who then said, "let's go to the site sheds", at which point Messrs Pearson and Maloni led the workers there, prevented Messrs Spence and Christian from entering, and addressed the workers for 30 minutes. At the end of that time, Mr Pearson attempted to yell over the top of Mr Christian, and about ten minutes after that, after most of the workers had returned to work, Mr Maloni prevented the remainder of the workers from leaving the sheds by blocking the doorway, where he remained until 15 minutes or so later. 50 It seems to me sufficiently clear that, on the basis of those admitted facts, the actions of the two officials that day were not collective acts, although they did have a common purpose. There were two contraventions, for the reasons explained by Besanko J in the Royal Adelaide Hospital Case. See [46] above. 51 The same is true of what occurred on 26 July 2018. Although Messrs Maloni, Pearson and Tzimas together arrived at the U-Vet Site and entered the sheds, and held a meeting, it was Mr Tzimas who raised what he alleged to be inadequate lux lighting levels, and it was Mr Pearson who had the exchange described above with Mr Spence. After WorkSafe had concluded that there was no health and safety issue and that there was no reason for a cessation of work, although Messrs Pearson and Maloni returned together to the lunch sheds, it was Mr Pearson who addressed the workers for about 30 minutes, and Mr Maloni who prevented anyone entering or leaving the lunch sheds. 52 Again, at the risk of repeating myself, it seems to me that those acts were not collective ones, although they doubtless had a common purpose. 53 For those reasons, in my view, the CFMMEU has contravened s 46 of the BCIIP Act five times, being one contravention for each of the individual respondent's contraventions.

Pecuniary penalties 54 Section 81 of the BCIIP Act relevantly provides that: (1) A relevant court, on application by an authorised applicant, may make one or more of the following orders relating to a person (the defendant) who has contravened a civil remedy provision: (a) an order imposing a pecuniary penalty on the defendant; (b) an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention; and (c) any other order that the court considers appropriate. … (2) The maximum pecuniary penalty is: (a) for a Grade A civil remedy provision - 1,000 penalty units if the defendant is a body corporate and otherwise 200 penalty units; and (b) for a Grade B civil remedy provision - 100 penalty units if the defendant is a body corporate and otherwise 20 penalty units. … (5) A pecuniary penalty under paragraph (1)(a) is payable to the Commonwealth, or to some other person if the court so directs. It may be recovered as a debt. (6) In determining a pecuniary penalty under paragraph (1)(a), the court must take into account all relevant matters, including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered because of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct. … 55 The Commissioner is an "authorised applicant" within the meaning of s 5 of the BCIIP Act.

The principles 56 As set out above, s 81(6) of the BCIIP Act provides that, in determining a pecuniary penalty under s 81(1)(a), the court must take into account all relevant matters, including: (a) the nature and extent of the contravention; (b) the nature and extent of any loss or damage suffered because of the contravention; (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct. 57 The principles governing the imposition of pecuniary penalties in matters such as this were addressed by the plurality judgment of the High Court in Pattinson [2022] HCA 13; (2022) 399 ALR 599 (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). There is no need here to refer to those principles in any detail. As the plurality emphasised in that case at 602 [9]: Under the civil penalty regime provided by the [FW] Act, the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act. 58 The plurality cited with approval the following passage from the judgment of French CJ, Kiefel, Bell, Nettle and Gordon JJ in Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at 506 [55]: [W]hereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in [Trade Practices Commission v CSR Ltd [1990] FCA 521; (1991) ATPR ¶41 076], is primarily if not wholly protective in promoting the public interest in compliance: "Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act] … The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act." (Footnotes omitted.) 59 Having referred to the judgment of French J in Trade Practices Commission v CSR Ltd [1990] FCA 521; (1991) ATPR ¶41-076 at 52,152-52,153, in which his Honour listed a number of factors to which "[t]he assessment of a penalty of appropriate deterrent value will have regard", the plurality in Pattinson also observed, at 605 [19], that "[i]t may readily be seen that this list of factors includes matters pertaining both to the character of the contravening conduct … and to the character of the contravenor", but that "[i]t is important, however, not to regard the list of possible relevant considerations as a 'rigid catalogue of matters for attention' as if it were a legal checklist" (footnotes omitted).

The maximum penalties 60 In assessing the proper level of penalties, it is necessary to have regard to the maximum penalty. 61 The maximum penalty that might be imposed for each contravention of s 46 of the BCIIP Act is $210,000 for the CFMMEU, and $42,000 for each of Messrs Pearson, Maloni and Tzimas.

The nature, extent and circumstances of the contraventions - ss 81(6)(a) and (c)

Conduct of Messrs Maloni and Pearson on 13 July 2018

Commissioner's submissions 62 The Commissioner submitted that the conduct of Mr Maloni was deliberate and objectively serious in that: (a) he misused the position of elected health and safety representative; (b) he directed all CFMMEU members on the U-Vet Site to wait behind after the 11am toolbox meeting, in circumstances where he would have known that they were rostered to continue to perform work; (c) he led the 13 July Stopped Workers (as defined in the FASOC - see [40] above) to the site sheds and held the door shut so that Messrs Spence and Christian could not enter; (d) when the majority of the 13 July Stopped Workers left the sheds to return to work, he prevented the remaining workers from leaving the sheds by blocking the doorway; and (e) he admitted to organising the 13 July Stopped Workers to engage in unlawful industrial action between 11:05am and 12:05pm. 63 The Commissioner also submitted that the conduct of Mr Pearson was deliberate and objectively serious in that: (a) he ignored the direction from Mr Spence to leave the U-Vet Site when he was told upon his entry that he was not allowed to be there and had to leave; (b) he directed the 13 July Stopped Workers to "go to the site sheds"; (c) he led the 13 July Stopped Workers to the site sheds and held the door shut so that Messrs Spence and Christian could not enter; (d) when Mr Christian entered the sheds to direct the 13 July Stopped Workers to return to work, he attempted to yell over the top of Mr Christian, saying: "You can't address my men. I'm not letting you address my men. You're intimidating my men"; and (e) he admitted to organising the 13 July Stopped Workers to engage in unlawful industrial action between 11:05am and 12:05pm. 64 The Commissioner also submitted that there were no issues of safety (or at all) raised by either Mr Maloni or Mr Pearson to justify the stoppage of work, and no respect shown for Kane Constructions' authority on the U-Vet Site. It was also submitted that the conduct demonstrated a calculated, and targeted, form of industrial action, and that the CFMMEU had determined that it did not want Austar working on the U-Vet Site and sought to flex its industrial muscle to force Kane Constructions to bend to its demands to advance its industrial agenda.

CFMMEU's submissions 65 The CFMMEU accepted that the s 46 contraventions on 13 July were deliberate, but said that "[i]n the circumstances, the … contraventions fell objectively towards the lower end of the scale of seriousness", because: The industrial action organised by Maloni and Pearson spanned about 1 hour, commencing at 11:05AM and concluding at 12:05PM. The number of workers involved is uncertain, with the FASOC pleading that initially 'about 35' workers stayed behind with Pearson and Maloni. The applicant is able to identify only 3 workers from Melbourne Facades by name. By 11:50AM, the majority of workers taking industrial action had returned to work. The rest returned to work 15 minutes later. The contravening conduct did not involve any senior officers. Whilst work was disrupted, there is no pleaded allegation and no evidence of economic loss. In the absence of any such evidence, and given the ambiguity about which workers were in fact involved in the industrial action, the Court should not find that there was economic loss … In any event, it is important to recall that the majority of the unknown number of workers who engaged in industrial action had returned to work after 45 minutes. The contravening conduct arose out of concerns about the treatment of Austar workers and underpayments. The contravention is to be contrasted with conduct engaged in for arbitrary or base motives. This, again, is not raised by way of mitigation but as a relevant contextual factor in assessing the objective seriousness of the contravening conduct and as pertinent to personal deterrence.

Commissioner's submissions in reply 66 In reply, the Commissioner submitted that the CFMMEU's characterisation of the conduct described above as "objectively towards the lower end of the scale of seriousness" should be rejected, because in each case: (a) the 13 July contraventions of Messrs Maloni and Pearson were deliberate; (b) they misused their respective representative roles; (c) there were aggravating features, including the fact that they did not attempt to justify their actions to management and they defied management in the presence of workers; and (d) the contraventions had a significant disruptive impact, with at least 35 workers stopping work for around an hour.

Finding 67 I am not altogether sure what the material difference is between a finding that a contravention is "serious", as the Commissioner contended, or at "the lower end of the scale of seriousness", as the CFMMEU contended. In any event, in my view the contraventions by Messrs Maloni and Pearson on 13 July 2018 are properly characterised as serious, for the reasons advanced by the Commissioner.

Conduct of Messrs Maloni, Pearson and Tzimas on 26 July 2018

Commissioner's submissions 68 The Commissioner submitted that the conduct of Mr Maloni was deliberate and objectively serious in that: (a) he misused the position of elected health and safety representative; (b) after the WorkSafe inspectors had concluded that there was no reasonable cause for employees to be concerned for their health and safety, he re-entered the lunch sheds and addressed the 26 July Stopped Workers (as defined in the FASOC - see [40] above) for a further 30 minutes and positioned himself across the doorway preventing anyone from entering or exiting the lunch sheds, which meant that neither Mr Spence nor Mr Christian could communicate the outcome of WorkSafe's inspection and direct the workforce to go back to work, and that any worker who wanted to return to work could not do so; and (c) he admitted that by his own conduct, he organised the 26 July Stopped Workers to engage in unlawful industrial action between 9:50am and 12:30pm. 69 The Commissioner also submitted that the conduct of Mr Pearson was deliberate and objectively serious in that: (a) he ignored the direction from Mr Spence to leave the U-Vet Site when he was told upon his entry that he was not allowed to be there and had to leave; (b) he said to Mr Spence that "all the workers are not going back to work until the issues are fixed", demonstrating that he was in control of when the 26 July Stopped Workers would return to work and the circumstances in which he would allow that to occur; (c) after the WorkSafe inspectors had concluded that there was no reasonable cause for employees to be concerned for their health and safety, he re-entered the lunch sheds and addressed the 26 July Stopped Workers for a further 30 minutes; and (d) he admitted that by his own conduct, he organised the 26 July Stopped Workers to engage in unlawful industrial action between 9:50am and 12:30pm. 70 As to Mr Tzimas' accessorial liability for Messrs Maloni and Pearson's s 46 contraventions, the Commissioner submitted that he: (a) ignored the direction from Mr Spence to leave the U-Vet Site when he was told upon his entry that he was not allowed to be there and had to leave; (b) raised an issue of inadequate lux lighting levels on a stairway, which was "an issue which [Mr] Spence could instantly inspect and determine was adequate and [was] an issue that WorkSafe did not consider to be a reason to cease work"; and (c) admitted to being knowingly concerned in the organising of the unlawful industrial action between 9:50am and 10:45am (when he left the U-Vet Site).

CFMMEU's submissions 71 The CFMMEU accepted that the s 46 contraventions on 26 July were deliberate, but said that "[i]n the circumstances, the … contraventions fell below the middle of the spectrum of seriousness", because: The industrial action was organised by Maloni and Pearson and occurred for 2 hours and 40 minutes, from 9:50AM to 12:30PM. 16 workers, 6 from Melbourne Facades and 10 from Quadrant were involved. The contravening conduct did not involve any senior officers. Whilst work was disrupted, there is no pleaded allegation and no evidence of economic loss. Without such evidence, the Court should not find that there was economic loss … If the Court infers that disruption occurred, it should infer that any disruption would have been limited only to works being performed by Melbourne Facades and Quadrant at the U-Vet Site. The contravening conduct was motivated by safety concerns, which resulted in WorkSafe inspectors being called and attending the U-Vet site to conduct an inspection. The respondents do not suggest that the safety concerns were such as to fall within the exception contained in s 7(2)(c) to the BCIIP Act. Rather, the concerns are relevant in demonstrating that the contravening was not engaged in for arbitrary or base motives. This is a relevant contextual factor in assessing the objective seriousness of the contravening conduct and is pertinent to personal deterrence of the individual contraveners. 72 As to Mr Tzimas' accessorial liability for Messrs Maloni and Pearson's s 46(1) contraventions, the CFMMEU conceded that he was an accessory to those contraventions, but said that because he was present at the U-Vet Site until shortly after 10:30am, his culpability is limited to associating himself with Messrs Pearson and Maloni for a period spanning about an hour, and that therefore his contravention "is at the lower end of the spectrum of seriousness".

Commissioner's submissions in reply 73 In reply, the Commissioner submitted that the CFMMEU's characterisation of the conduct described above as "below the middle of the spectrum of seriousness" should be rejected because the unlawful conduct was deliberate, it lasted a number of hours, and involved up to 124 building workers who had attended the U-Vet Site that day. The submission continued: The so-called safety concern raised was unfounded. Further, it was a disproportionate response to shut down the entire site for hours on the issue of whether lighting in a single stairway on a single level of the project was adequate. Each of these are aggravating factors that elevate the seriousness of the contraventions of Maloni and Pearson above "below the middle of the spectrum". For Tzimas, his role should be regarded as of mid-range seriousness, rather than low range …

Finding 74 Again, I do not consider finely calibrated notions of "serious", "mid-range serious" or "low-range serious" to be particularly useful. In my view, for the reasons given by the Commissioner, the conduct of each of Messrs Pearson, Maloni and Tzimas was serious.

Nature and extent of loss or damage - s 81(6)(b) 75 Although there was no evidence of actual loss, it is appropriate to infer that loss and damage was occasioned as a consequence of the respondents' unlawful conduct, because work on the U-Vet Site was disrupted on two separate days for a number of hours. In such circumstances, substantive loss to someone was inevitable. Compare Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 at 476 [79]-[80] (Dowsett and Rares JJ).

Prior similar conduct / contraventions and deterrence considerations - s 81(6)(d)

The CFMMEU 76 The courts have recounted the CFMMEU's notorious recidivism on many occasions. It is a serial offender, which has "historically acted in disregard of the law and appeared to treat the imposition of pecuniary penalties … as 'little more than the cost of its preferred business model'". See Pattinson at 606 [21]. 77 As Katzmann J said in the WGC Cranes Case at [162]: [T]here is a pressing need for specific deterrence in the case of the [CFMMEU]. Having regard to the [CFMMEU's] apparent disdain for industrial laws that get in its way, in order to achieve the objective of deterrence, both specific and general, substantial penalties are called for. 78 The evidence also established that the CFMMEU is both cash and asset rich. As Katzmann J also said in the WGC Cranes Case at [150]: In these circumstances the penalties will need to be sufficiently high to operate as an effective deterrent (though not so high as to be disproportionate to the gravity of the contraventions). That is particularly so in the case of the [CFMMEU] having regard to its culture of non-compliance with industrial laws which it has steadfastly refrained from addressing.

Messrs Pearson, Maloni and Tzimas 79 The Commissioner submitted, and the CFMMEU did not dispute, that Mr Pearson had several relevant prior contraventions. He was ordered to pay civil penalties in six previous proceedings spanning from 2009 to 2017 for conduct involving unlawful industrial action, unlawful picketing, coercion, intentionally hindering and obstructing while acting as a permit holder, and acting in an improper manner as a permit holder. 80 Specifically, his prior contravening conduct is as follows: Case Relevant conduct Nature of conduct Date of judgment Penalty and number of contraventions Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038 8 May 2017 On 8 May 2017, CFMMEU officials engaged in an unlawful picket at two Melbourne construction sites. CFMMEU official John Perkovic and a group of other men blocked access to a NewCold storage warehouse. They stood next to a CFMMEU SUV that was parked across the entry gate. At one point, Mr Perkovic and others surrounded two Hansen Yuncken managers. When told they were trespassing, one of the group said "P*ss off, we're here, we're staying". A short time later, when told that Hansen Yuncken staff, among others, needed access to the site, Mr Perkovic said that he had lost the keys to the car. Liability admitted CFMMEU: $215,000 for two contraventions of s 47 of the BCIIP Act and one contravention of s 77 Around the same time, at a second NewCold site, Mr Pearson, CFMMEU member Mario Raspudic and a group of other men stood next to another CFMMEU SUV parked across the driveway and restricted access to a number of concrete trucks, subcontractors, office staff and employees of a potential customer. At one point, Mr Pearson said that the car was broken down and he could not move it. Penalty decision on 6 December 2019 Mr Pearson: $20,000 for one contravention of s 47 of the BCIIP Act Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263 8 March, 9 August, 28 & 30 The CFMEU and a number of its officials engaged in a campaign against John Holland Qld Pty Ltd to force it to enter into an enterprise agreement on terms acceptable to the CFMEU. The industrial action taken as part of this campaign involved the CFMEU organising stoppages of work at two projects over a period from March 2013 until late November 2013. Liability admitted CFMEU: $551,900 for contraventions of ss 343, 417 and 421 of the FW Act October, 7, 11-12, 18, 21 & 25 November 2013 Penalty decision on 9 March 2018 Mr Pearson: $37,500 for contraventions of ss 343, 417 and 421 of the FW Act Director of the Fair Work Building Industry Inspectorate v Construction, 17 & 19 On 17 and 19 June 2013, Mr Pearson entered the Central Apartments construction site in Darwin exercising rights of entry, not for a legitimate purpose, but to indicate to the occupier the extent to which the CFMEU was capable of disrupting the site to encourage employees on the site to join the union for the occupier to pay their membership fees. Penalty decision on 14 August 2015 CFMEU: $35,000 for two contraventions of s 348 of the FW Act Forestry, Mining and Energy Union (No 3) [2015] FCA 845 June 2013 Mr Pearson: $6,000 for two contraventions of s 500 of the FW Act Director of the Fair Work Building Industry Inspectorate v Myles & Ors [2014] FCCA 1429 11 February 2010 CFMEU officials, and others, in exercising rights of entry on a construction site in Brisbane, failed to comply with reasonable safety requirements and failed to wear appropriate personal protective equipment. Liability decision on 20 December 2013 CFMEU: $26,400 for one contravention of s 500 of the FW Act Penalty decision on 28 February 2014 Mr Pearson: $4,950 for one contravention of s 500 of the FW Act Director, Fair Work Building Industry Inspectorate v Sutherland & Ors 28 February & 1 March 2011 Brookfield Multiplex Constructions Pty Ltd was the project manager for building work associated with the Gold Coast Hilton hotel (Surfers Paradise) and Wintergarden shopping precinct (Brisbane). The CFMEU was involved in the withdrawal of labour from these sites. Orders by consent on 10 July 2013 CFMEU: $50,000 for two contraventions of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) BRG1008/2011 Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia (CEPU): $15,000 for one contravention of s 38 of the BCII Act Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 5) [2012] FCA 1144 28 February 2011 to 26 The CFMEU, CEPU and officials engaged in unlawful industrial action and defied orders made by Fair Work Australia, contravened right of entry provisions and engaged in work stoppages at a Brisbane and Gold Coast construction site. Penalty decision on 19 October 2012 CFMEU and CEPU (jointly and severally liable): $550,000 (for one contravention by the CEPU and 12 contraventions by the CFMEU of s 38 of the BCII Act) Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 6) [2012] FCA 1273 May 2011 Penalties agreed Mr Pearson: $6,450 for four contraventions of s 38 of the BCII Act Judgment on injunctions on 16 November 2012 Lovewell v Pearson & Anor [2011] FMCA 102 5 June 2009 Mr Pearson intentionally hindered and obstructed a company in its work and otherwise acted in an improper manner when he disrupted a concrete pour and swore at employees at a building site in Queensland. Penalty decision on 25 February 2011 Mr Pearson: $4,500 for one contravention of s 767(1) of the Workplace Relations Act 1996 (Cth)

81 Mr Pearson is still an officer of the CFMMEU (although he is no longer a permit holder). General and specific deterrence is therefore a significant factor when it comes to penalising him for his contraventions. 82 At the time of the contraventions the subject of this proceeding, neither Mr Maloni nor Mr Tzimas has been found to have contravened any industrial laws previously.

Corrective action 83 On 6 February 2020, the Branch Secretary of the Victoria-Tasmania Branch of the Construction and General Division of the CFMMEU, Mr John Setka, engaged Mr Brian Lacy AO, a barrister and former Senior Deputy President of the Australian Industrial Relations Commission, to provide training to CFMMEU organisers, shop stewards, members of the Branch Executive, and those organisers and shop stewards who have been named respondents in penalty proceedings in relation to contraventions of workplace laws. The purpose of the training was to ensure that CFMMEU organisers understand and have a good knowledge of their responsibilities and obligations under industrial and work health and safety laws generally. The CFMMEU said that it seeks to ensure, by the provision of this training, that these individuals have the requisite knowledge to enable compliance with their responsibilities and obligations. 84 Mr Setka also engaged Mr Lacy in September 2020 to provide, and he subsequently did provide, training to Messrs Maloni, Pearson and Tzimas in relation to their contraventions in the present case, and, in the case of Mr Pearson, his earlier contraventions. Mr Lacy concluded in his reports that each of them understood why their conduct the subject of these proceedings was unlawful and what they need to do to ensure there is no repeat of such conduct. Mr Lacy opined that each of Messrs Maloni, Pearson and Tzimas engaged positively with the training. 85 The CFMMEU submitted, and I accept, that the conducting of the training is to the CFMMEU's credit in so far as specific deterrence is concerned.

Cooperation with the Commissioner 86 The CFMMEU also submitted, and I accept, that the admissions made by the respondents are to their credit, including because the Commissioner has not been put to the cost and expense of preparing a case for trial, and the court has been spared a contested factual hearing on liability.

Penalties imposed 87 As I said above, in my view the CFMMEU has contravened s 46 of the BCIIP Act five times, being one contravention for each individual respondent's contraventions. 88 I accept the CFMMEU's submission, however, that for the reasons it submitted, it should be taken to have engaged in a single course of conduct in relation to the actions of Messrs Maloni, Pearson and Tzimas on 13 July 2018, and again on 26 July 2018, because the individual contraventions on those dates "arose from the organisation of the same instance of industrial action by the same workers" and "[t]hey were motivated by the same purpose, viz., organising industrial action in light of the circumstances of the Austar workers". See generally Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at 91-92 [111]-[115] (Dowsett, Greenwood and Wigney JJ). 89 Taking all the matters dealt with above into account, I would impose a penalty on the CFMMEU of $180,000 in respect of the contraventions of Messrs Maloni and Pearson on 13 July 2018, and the same amount in respect of the contraventions of Messrs Maloni, Pearson and Tzimas on 26 July 2018 (totalling $360,000). 90 As to Messrs Maloni, Pearson and Tzimas, there was no evidence led about their financial situation. 91 As I noted above, Mr Pearson has been ordered to pay civil penalties in six previous proceedings spanning from 2009 to 2017 for conduct involving unlawful industrial action, unlawful picketing, coercion, intentionally hindering and obstructing while acting as a permit holder, and acting in an improper manner as a permit holder. Neither Mr Maloni nor Mr Tzimas has been found to have contravened any industrial laws previously. 92 Taking all the matters dealt with above into account, I would impose the following pecuniary penalties: (1) On Mr Pearson: $35,000 in respect of his contravention on 13 July 2018 and $35,000 in respect of his contravention on 26 July 2018. (2) On Mr Maloni: $25,000 in respect of his contravention on 13 July 2018 and $25,000 in respect of his contravention on 26 July 2018. (3) On Mr Tzimas: $15,000 in respect of his contravention on 26 July 2018.

Personal payment order 93 The Commissioner sought a personal payment order against Mr Pearson, that is, that he be personally responsible for paying the penalties imposed on him. Given that most of his other prior offending took place before May 2017, I would, in the particular circumstances of this case, decline to make such an order in respect of Mr Pearson, assuming that there is power under the BCIIP Act to make one (as to which, see what I said in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038 at [58]-[61]).

Disposition 94 Accordingly, I will make orders that the respondents pay pecuniary penalties in the amounts I have set out above. 95 I will also make the declarations sought by the Commissioner, which the respondents accepted have utility and are appropriate in all the circumstances. 96 It was agreed that there should be no order as to costs. I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.

SCHEDULE OF PARTIES VID 300 of 2019 Respondents Fourth Respondent: PAUL TZIMAS

Building and Construction Industry (Improving Productivity) Act 2016(Cth)ss 5, 7, 45, 45(b), 45(c), 46, 81, 81(1), 81(1)(a), 81(2), 81(5), 81(6), 81(6)(a), 81(6)(b), 81(6)(c), 81(6)(d), 92, 92(1)(d), 92(2), 94, 94(1)(a), 94(2), 94(3), 95, 95(1)(b), 95(1)(d), 95(3)

Building and Construction Industry Improvement Act 2005(Cth)

Workplace Relations Act 1996(Cth)

At a glance

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Judgment (37 paragraphs)

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Legislation Cited (6)

Cases Cited (20)

Cited By (2)