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

Federal Court of Australia|2022-01-21|Before: Katzmann J

Introduction 1 On two consecutive days in November 2018 two officials of the Construction, Forestry, Maritime, Mining and Energy Union (the Union), Gerasimos (known as Maki) Danalis and Anthony Dimitriou attended a building site in Kiama controlled by Richard Crookes Constructions Pty Ltd where a building complex was under construction (the project) for the Kiama Municipal Council. Their stated purpose was to address concerns about safety matters. 2 The conduct of the officials (and on the first day that of another official) caused the Australian Building and Construction Commissioner to institute the current proceeding. The Commissioner alleged that on the first day the three men had contravened the Fair Work Act 2009 (Cth) (FW Act) in numerous respects and had also engaged in an unlawful picket in contravention of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act). The Commissioner alleged that on the second day Danalis and Dimitriou had contravened the FW Act in two respects. Finally, the Commissioner alleged that the Union was involved in the conduct of the officials, so that it, too, had contravened the legislation in all relevant respects. 3 The Commissioner's claims against the third official were not proved to the requisite standard and some of his claims against Danalis and Dimitriou also failed. But some of the alleged contraventions against Danalis, one against Dimitriou, and the consequential liability of the Union were proved. See Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) [2021] FCA 920 (the liability judgment or LJ). All the proven contraventions were of sections of the FW Act. Unless otherwise indicated, in this judgment, which is concerned with the relief to which the Commissioner is entitled, all references to sections of an Act or "the Act" are to the FW Act. I found that Danalis had contravened s 500 twice on the first day and once on the second and that he had also contravened s 503 on the first day. I found that Dimitriou had contravened s 500 once on the second day. I found that the Union was knowingly concerned and therefore involved in those contraventions and, by virtue of s 550(1) read with s 793, is taken to have also contravened those provisions. 4 Sections 500 and 503 fall within Pt 3-4 of the Act which is concerned with the rights and obligations of officials of organisations who hold entry permits to enter premises for purposes relating to their representative roles under the Act and under State or Territory workplace safety laws. Section 500 prohibits a permit holder exercising or seeking to exercise such rights from intentionally hindering or obstructing any person or otherwise acting in an improper manner. Section 503 relevantly prohibits a person from taking action which is not authorised under Pt 3-4 with the intention of giving the impression that the doing of a thing is in fact authorised or reckless as to whether the impression is given. 5 In summary, I found that on the first day, 27 November 2018, Danalis contravened: (1) section 500 by intentionally obstructing the project workers from continuing with the pour of a concrete slab in that he obstructed the driver of a concrete truck (the First Truck) from completing his delivery of concrete and project workers from operating a concrete pump, and consequently hindering Colm Thomas, Crookes' site manager, and Tomas Rees, Crookes' project manager, from discharging their duties; (2) section 500 by intentionally obstructing the project workers from continuing with the pour of a concrete slab in that he obstructed the drivers of two other concrete trucks (the Second and Third Trucks) from driving their vehicles onto the site to deliver concrete for the pour, and consequently hindering Thomas, Rees, and also Shannon Murray, the traffic controller on the site, from discharging their duties. (3) section 503 by taking this action reckless as to whether he was giving the impression that the union officials were authorised by Pt 3-4 of the Act to stop the concrete pour, stop the concrete trucks from entering the site, shut down the site, and determine whether it was safe to proceed, when they were not so authorised. 6 I found that on the second day, 28 November 2018, each of Danalis and Dimitriou contravened s 500 in that they each acted in an improper manner by refusing to undertake a visitor's induction when Thomas requested them to do so and entered the project site unaccompanied and without having undergone an induction. 7 I also found that the Union was knowingly concerned in all these contraventions and was therefore taken to have contravened the same provisions. 8 The remaining questions concern the orders that should be made. In particular, there is controversy about the number of declarations, the extent of the respondents' culpability, and whether orders should be made requiring the union officials personally to pay the penalties imposed upon them without seeking or accepting an indemnity from the Union.

General principles 9 Section 545 gives the Court the power to make any order it considers appropriate if it is satisfied that a person has contravened a civil remedy provision. Section 21 of the Federal Court of Australia Act 1976 (Cth) expressly confers on the Court the power to make declarations. There is utility in making declarations, even when penalties are imposed, "to define and publicise the type of conduct" which constitutes the contraventions and to clearly set the foundation for the consequential orders, including those based on accessorial liability: Cruse v Multiplex Ltd (2008) 172 FCR 279 at [53] (Goldberg and Jessup JJ).

The dispute 10 There is no dispute that declarations should be made. The dispute turns on whether one declaration should be made with respect to Danalis's contraventions of s 500 on the first day, which would have a flow-on effect for the Union, and whether only one declaration should be made with respect to the contraventions by Danalis and Dimitriou on the second day.

How many declarations should be made? 11 With respect to the contraventions by Danalis of s 500 on 27 November 2018, Mr Latham of counsel, who appeared for both Danalis and Dimitriou, urged that only one declaration should be made because the Commissioner's proposed declarations were substantially identical, differing only to the extent that they referred to different trucks and added Murray to the persons obstructed or hindered in the discharge of their duties. In his submissions he referred to the remarks of Bromwich J in Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301; 275 IR 148 at [36]. 12 The Union took the same position, arguing that Danalis engaged in "continuing conduct of a similar duration" to that which Tracey J held to be one contravention in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) (No 2) [2018] FCA 1214; 280 IR 356 at [16]. 13 I am unpersuaded to do as the respondents urged. 14 The Commissioner pleaded and proved two series of acts each series of which I held to be separate contraventions of the Act. While there is a respectable argument that the two series should be treated as part of the one course of conduct for the purpose of fixing appropriate penalties, it does not follow that there should only be one declaration. 15 The remarks of Bromwich J in New Shanghai Charlestown at [36] are not to the point. They are concerned with the approach to determining penalties. The Brooker Highway Case is also distinguishable. 16 In The Brooker Highway Case the Commissioner alleged that a union official (Hassett) contravened s 500 on four separate occasions over the course of two hours on a single day, only two of which were found to have been proved. The two occasions Tracey J found to have been proved involved Hassett failing to give prior notice of his entry in accordance with s 487 of the FW Act and acting in an aggressive, demeaning and abusive manner towards managers and others present while he was on the site. His Honour held that it was Hassett's conduct as a whole which gave rise to the contravention. That is clear from what his Honour said at [14]-[16] of his reasons. In particular, I note that his Honour pointed out that in his liability judgment he had accepted the respondents' submission that "standing alone" Hassett's failure to give prior notice of his entry in accordance with s 487 may not have amounted to a contravention of s 500. His Honour explained at [15] that it was a combination of elements of misconduct which had led to him finding that Hassett had contravened s 500. At [16] he said that the "disparate elements form[ed] part of a continuum and, together, constituted a single contravention". 17 The position in the present case is quite different. 18 In my concluding remarks in the liability judgment I did say that I was satisfied that "on 27 November 2018 Danalis contravened s 500 of the FW Act by intentionally obstructing the concrete workers, Evans and McGrath and by hindering Murray, Rees and Thomas as alleged". But that was merely a summary of the findings I had earlier made. I had found two contraventions, one constituted by one series of events and the second by another series of events. 19 It follows that the respondents' submissions must be rejected. Two declarations should be made to reflect what I actually determined. 20 The Union submitted that the conduct of Danalis and Dimitriou on 28 November 2018 also involved only one contravention of s 500 because it was apparent from what I said at [410] of the liability judgment that the two officers engaged in the same contravening conduct at the same time and at the same place. It argued that, although the conduct in question involved two officials and "two sets of conduct", it was nonetheless "collective in nature as the two organisers were obviously acting as a team in performing the same acts in the same way". 21 This argument must be rejected, too. While it is their conduct, rather than their contraventions which is attributed to the Union by s 793 of the Act (see Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) (2020) 282 FCR 1 at [251] per White J with whom Allsop CJ agreed at [1] and [39] and Flick J agreed at [46]), the Union is properly to be regarded as having contravened the Act in each case. The evidence does not establish that the conduct of the union officials was "collective". Moreover, the fact that they may have acted in concert does not mean that the Union contravened the Act only once. The contraventions by the two union officials arose, as the Commissioner put it in his submissions, from their individual status as permit holders under the Act. Furthermore, I found that the effect of s 793 was that the Union was taken to have engaged in the same conduct as the union officials and, by virtue of s 550, the Union was involved in both contraventions and is taken to have committed them, too. In these circumstances, the declarations that should be made are in the terms or to the effect of those proposed by the Commissioner. How the Union's conduct should be treated for the purpose of fixing penalties is another matter.

General principles 22 The Court has a broad discretion when it comes to the imposition of pecuniary penalties. Upon being satisfied that a person has contravened a civil remedy provision of the Act, it may order the person to pay such a penalty as it considers appropriate: s 546(1). Each of ss 500 and 503 is a civil remedy provision. 23 The principles applying to the imposition of civil penalties are well-established. They were summarised at length by the Full Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 (ABCC v CFMEU) at [98]-[107] (Dowsett, Greenwood and Wigney JJ) and need not be repeated. I respectfully adopt that summary. 24 It suffices to note the following matters. The principal, if not sole, purpose of a civil penalty is protective, to operate as a deterrent for the wrongdoer and those who might be tempted to follow suit. But the penalty must be proportionate to the contravention such that, even where a large penalty is necessary to provide or promote effective deterrence, the penalty should not be so high as to be oppressive. The Court needs to consider both the objective seriousness of the contravention and the particular circumstances of the contravenor. The relevant considerations are set out in ABCC v CFMEU at [103]-[104]. Fixing an appropriate penalty involves identifying the factors relevant to the particular contravention and the circumstances of the contravenor and making a value judgment in the light of the purpose the penalty is intended to serve through a process akin to the "instinctive synthesis" involved in criminal sentencing. But this exercise is not carried out at large. 25 As the respondents acknowledged, the objective seriousness of the contraventions "must loom large" in determining what penalties are appropriate. In Williams v Construction, Forestry, Mining & Energy Union (No 2) [2009] FCA 548; 182 IR 327 at [16], Jessup J observed that what is important is the quality of the conduct and its relevance to the norms of industrial behaviour which the legislation seeks to establish or support. 26 In the case of a repeat "offender", the remarks of the Full Court in Construction, Forestry, Maritime, Mining and Energy Union (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 at [22] and Pattinson v Australian Building and Construction Commissioner (2020) 282 FCR 580, particularly at [104], must be borne in mind. I will return to this question in the context of considering the appropriate penalties for the Union.

Additional principles for cases involving multiple contraventions 27 In a case such as this involving multiple contraventions of the Act, three additional principles are relevant. The first is the principle against double jeopardy. The second is the course of conduct principle. The third is the totality principle. Each of these principles derives from the criminal law.

Double jeopardy 28 The principle against double jeopardy requires that only one penalty be imposed if contraventions of multiple provisions of the Act arise from the same wrongful conduct. Section 556 relevantly provides: Civil double jeopardy If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.

Course of conduct 29 Up to a point, the second principle is incorporated in s 557. Section 557 provides that, for the purposes of Pt 4-1 of the Act (which include s 545) but subject to one exception, two or more contraventions of certain civil remedy provisions 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 effect of the exemption, which appears in s 557(3), is to exclude the principle from operating in the case of a person who has previously contravened the same provision and upon whom a court has imposed a pecuniary penalty for it. The object and purpose of s 557 and provisions like it is to ensure that an "offender is not punished twice for what is essentially the same criminality": Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 at [18] (North, Flick and Jagot JJ). 30 Section 557 does not apply in the present case, however, because none of the sections the respondents contravened is one of the civil remedy provisions which are covered by it. But it is common ground that s 557 is not a code and the common law course of conduct principle continues to apply. That principle was described by the Full Court in Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 194 IR 461; 269 ALR 1 at [39] in the following way: The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is "the same criminality" and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions. (Original emphasis.) 31 On the other hand, it is important to appreciate that the fact that two contraventions were part of a single course of conduct does not limit "the penal response" to one maximum penalty: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262 at [12] (Allsop CJ). 32 The principle is not a rigid rule of law. Nor is it a "straitjacket, denying a judge the capacity to craft a result that properly reflects the conduct in question even if the course of conduct principle does squarely apply". Rather, it is a guide to the exercise of judicial discretion. See Parker v Australian Building and Construction Commissioner (2019) 270 FCR 39 at [273] (Besanko and Bromwich JJ).

Totality 33 The totality principle requires a court, before fixing penalties, to conduct "a final check… to ensure that a final, total or aggregate, penalty is not unjust or out of proportion to the circumstances of the case": Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at [42] (Stone and Buchanan JJ); Mill v The Queen (1988) 166 CLR 59 at 62-63.

The maximum penalties 34 The maximum penalties are fixed by the table in s 539(2). In the case of an individual, the penalty must not exceed the maximum number in the relevant item in column four of the table. In the case of a body corporate, like the Union, it must not exceed five times the maximum: s 546(2). 35 The maximum penalty for each of the contraventions is 60 penalty units for an individual and 300 for a corporation: FW Act, s 539(2) (item 25) read with s 546. At the time of the contraventions the value of a penalty unit was $210: Crimes Act 1914 (Cth), s 4AA. Accordingly, the maximum penalty the Court may impose for each of the contraventions by Danalis and the contravention by Dimitriou is $12,600 and $63,000 for each contravention by the Union. 36 Careful consideration must be given to the maximum penalties. As the Full Court explained in ABCC v CFMEU at [106]: That is so for at least three reasons: first, because the legislature has legislated for the maximum penalty and it is therefore an expression of the legislature's policy concerning the seriousness of the prescribed conduct; second, because it permits comparison between the worst possible case and the case that the Court is being asked to address; and third, because the maximum penalty provides a "yardstick" which should be taken and balanced with all the other relevant factors: Markarian at [31] (per Gleeson CJ, Gummow, Hayne and Callinan JJ).

The other relevant factors 37 Factors bearing on the objective seriousness of the contraventions in the present case include the nature, character and gravity of the conduct constituting the contraventions; the circumstances in which it took place and the period of time over which it occurred; whether the conduct was isolated or systematic; the loss and damage it caused; and whether the conduct was deliberate rather than merely careless or negligent. In the case of the Union, they also include the seniority of the officials responsible for the contraventions. 38 Factors relevant to the particular circumstances of the contravenors are the extent, if any, to which they cooperated with the Commissioner; any contrition they have exhibited; and whether any extra-curial punishment may have been imposed or any detriment suffered. In the case of the Union, additional factors include its size and financial position (which bears upon the extent of the penalty necessary to operate as an effective deterrent), whether it has a culture of compliance or has in place compliance systems; and what if any improvements have been made since the contraventions occurred. They also include the history, if any, of contravening conduct. 39 I will address the factors relating to the objective seriousness of the contraventions first, as they apply to more than one respondent, before turning to the particular circumstances of each of them.

The nature, character and seriousness of the conduct and the circumstances in which it took place 40 The circumstances in which the various contraventions took place were essentially the same. The union officials had entered the building site pursuant to their statutory rights of entry in order to investigate reports of potential safety issues. On the first day, they were escorted by representatives of the principal contractor. On the second day they were not. A common feature of the conduct on both days was that the officials exhibited a certain arrogance or sense of entitlement. On the first day Danalis behaved as though he had the right to suspend the concrete pour if he determined that it was unsafe for it to proceed. On the second day he and Dimitriou behaved as though they could ignore the law if they considered it was unreasonable to insist upon compliance. None of the contraventions was trivial or insignificant. Danalis's conduct on the first day was serious and much more serious than the conduct of the two men on the second day. Each involved deliberate acts: obstruction on the first day and defiance on the second. I reject the submission to the contrary advanced on his behalf. The facts speak for themselves. 41 I begin with the first contravention of s 500 on 27 November 2018. 42 I found that Danalis's conduct exceeded the scope of his authority as a union official by attempting to interfere with the work being undertaken and the conduct of the business. He tried to switch off the agitator and instructed the driver of the First Truck not to continue with the pour, which he had no right to do. As a direct result of Danalis's intervention, against his own will and the instructions he had received from the principal contractor the driver eventually did as he was told. As a result the concrete pour was brought to a halt and the concrete spoiled. 43 The Commissioner conceded that the conduct did not fall "at the most serious end of the scale". But he submitted that Danalis's conduct must be serious as the findings establish that not only did he interfere with the work of the driver of the First Truck, he also interfered with the work of others and his conduct had ramifications for the broader project as a whole. With one qualification I accept those submissions. The qualification is that Danalis's conduct did not ultimately affect the broader project, which finished on time. 44 With respect to the second contravention of s 500 on 27 November 2018 I found as follows. The actions taken by Danalis prevented the drivers of the Second and Third Trucks from driving into the site which caused delay in the completion of the project. By not permitting the concrete trucks to enter, Danalis's conduct prevented the project workers on level 1 of building 8A from continuing with, and completing the pour, that day. Ultimately the project was delayed by about half a day but not all that delay was attributable to the obstruction of the passage of the Second and Third Trucks. 45 The Commissioner submitted that Danalis's conduct must be regarded as serious, noting that the findings establish that not only did he interfere with the work of the drivers of the two trucks but also with the work of others on the site which had "ramifications for the broader project as a whole". 46 I found that Danalis contravened s 503 by the actions he took on 27 November 2018 to stop the driver of the First Truck putting concrete into the hopper and prevent the driver of the Second Truck from entering the project site and also by the remarks he made to them and Thomas as well as the General Manager of the Council, Kevin McMurray, who was in attendance at the site at the time. In substance, I found that Danalis took those actions reckless as to whether he was giving the impression that he (and the other two union officials) were authorised to determine whether the site, or part of it, was safe; stop the concrete pour; stop the concrete trucks from entering the site; and shut down the site. 47 Once again the Commissioner accepted that his contravention was "not … at the most serious end" of the scale, but submitted that it was nonetheless "grave". 48 As for the contraventions of s 500 on 28 November 2018, I found that Danalis and Dimitriou acted in an improper manner by refusing to undertake a visitors' induction and entering the site unaccompanied, contrary to a reasonable request from the site manager. 49 As the Commissioner submitted, suspected safety breaches or safety concerns did not entitle Danalis to take matters into his own hands the first day or entitle Danalis and Dimitriou on the second day to flout the occupier's reasonable work health safety requirements. As the Commissioner also submitted, there is some incongruity in the officials entering the site for safety reasons and refusing to abide by safety precautions themselves. 50 It is common ground that the fact that the union officials entered the site to investigate safety concerns does not mitigate the penalty: see, for example, Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 at [122]-[129] (White J); cf. Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070; 299 IR 231 at [65]-[68] (Katzmann J). Still, I accept the respondents' submission that a dispute about sham safety issues is more serious than a dispute arising from genuinely held beliefs. So too is countermanding a refusal to allow entry to a work site if the refusal to allow entry is known to be reasonable.

Loss and damage caused by the contraventions 51 As the respondents put it, the loss or damage caused by the contraventions on 27 November 2018 was "significant" but not large in the scheme of things and "certainly not crippling". Uncontested evidence given at the liability hearing was that the cost to Crookes as a result of the interruption to the concrete pour was in excess of $12,000 but, as I pointed out at LJ [219], the evidence did not disclose by how much and no further evidence was adduced at the penalty hearing. Since it was open to the Commissioner establish the true figure, I conclude that the excess must have been inconsequential. 52 There was no evidence that any loss or damage was caused by the conduct of Danalis and Dimitriou on 28 November 2018. While some work on the site stopped that day, too, the Commissioner did not prove that Danalis or Dimitriou were responsible (see especially LJ at [296] and [311]). More likely the inclement weather made it unsafe for those workers who were working in the rain to continue.

The status of the union officials 53 Danalis and Dimitriou did not hold senior positions in the Union. Both of them were organisers, as was the third official who attended the site on 27 November 2018.

Statutory double jeopardy and course of conduct 54 The personal respondents submitted, in effect, that Danalis's behaviour across the two days should be treated as a single course of conduct. They also argued that s 556 precludes the imposition of a penalty for the contravention of s 503. The Union submitted that the behaviour of Danalis and Dimitriou in contravention of s 500 should be treated as a single course of conduct. 55 I reject all these submissions. 56 The mere fact that the contraventions occurred at the same site on consecutive days does not mean that they were part of the same course of conduct. Nor does the fact that safety issues were raised on both days. The contravening conduct was different on each day. So, too, were the reasons for that conduct. Section 556 is inapplicable because the particular conduct the subject of the s 503 contravention is different from the particular conduct the subject of the s 500 contraventions. It follows that any pecuniary penalty with respect to the s 503 contravention would not be imposed "in relation to" the latter conduct. No question of double jeopardy arises. 57 On the other hand, the two contraventions of s 500 on 27 November 2018 did constitute a single course of conduct. There was plainly a relationship between the legal and factual elements of those particular contraventions. The legal elements were identical. Factually, Danalis's object in each case was the same, namely to halt the concrete pour until or unless the safety concerns of the union officials were addressed to their satisfaction, and the steps he took to achieve it were similar in that they involved confronting the drivers of the concrete trucks. 58 For these reasons penalties for the s 500 contraventions on 27 November 2018 must be adjusted in order to ensure that neither Danalis nor the Union is penalised twice for what is essentially the same conduct. 59 There was also a relationship between the factual elements of the s 500 contraventions on 27 November 2018 and the s 503 contravention. A substantial part of the action the subject of the s 503 contravention was the action constituting the contraventions of s 500. 60 It will be recalled that s 503 relevantly provides that a person must not take action with the intention of giving the impression that the doing of a thing is authorised by Pt 3-4 of the Act when it is not so authorised or reckless as to whether the impression is given. I found that Danalis had taken action reckless as to whether the impression was given that the officials were authorised to take it. The action in question was Danalis telling the driver of the First Truck not to put concrete in the hopper and standing in the middle of the entrance driveway in front of the Second Truck, shouting and gesticulating at its driver not to bring his truck onto the site. The other elements of the contravention were different in that they involved statements made to McMurray and Thomas. 61 Nevertheless there is a problem with the respondents' argument. That is the problem highlighted by the Full Court in Parker at [272]. It is not sufficient that there be an interrelationship between the legal and factual elements of the different contraventions. For the course of conduct principle to apply it is necessary for the Court to be satisfied that the "criminality" of the different contraventions is the same. While I am satisfied that the two contraventions of s 500 involve essentially the same "criminality", I am not satisfied that the contravention of s 503 involves essentially the same "criminality" as either or both the contraventions of s 500. The "criminality" involved in the contravention of s 503 is Danalis's reckless indifference to the impression he created by his actions and words, not the actions themselves.

Danalis 62 The Commissioner submitted that each of the contraventions by Danalis attract penalties in the middle of the range, from 45% to 65% ($5,670-$8,190), in each case. I accept that the contraventions on the first day are in the mid-range of seriousness. But I do not accept that Danalis should be penalised to that extent. 63 Alone of the respondents, Danalis went into evidence. By an affidavit affirmed on 1 October 2021, he acknowledged and accepted the Court's findings, sought to explain his behaviour, and expressed regret for his conduct. An affidavit was also affirmed by his wife, Samantha. The evidence he and his wife gave, and upon which they were not cross-examined, indicate that he is essentially a man of good character. 64 After the events the subject of the contraventions he admitted to taking action on two days in October 2018 with intent to apply undue pressure on two companies and an individual to make or approve a building enterprise agreement on terms proposed by the Union. On 9 June 2021 he was found to have contravened s 54(1) of the BCIIP Act: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the WGC Cranes Case) [2021] FCA 622; 307 IR 411. At the time of the events the subject of the contraventions in the present case, however, he had never been found to have contravened any industrial laws. For present purposes he must therefore be treated as a first "offender" and on that basis entitled to be treated with some leniency. The contraventions of the BCIIP Act in October 2018 and of the FW Act the following month should be regarded as out of character. 65 Danalis's explanation for his conduct on 27 November 2018 was to the following effect. When he and his colleagues saw people working on the deck under the concrete boom he was concerned for their safety. Crookes had not provided a safe emergency exit from the deck where they were working and, when he inspected the concrete pump, it appeared to him to be sinking into the soil. He formed the view that there was a substantial risk that the boom could collapse in which case the workers underneath it could be killed or seriously injured and other workers would have no safe means of leaving the deck. In these circumstances he considered that the concrete pour should not proceed until the safety issues were addressed. He felt that Crookes, who had dismissed his concerns, was not taking these matters seriously. When discussions with Crookes management deteriorated, he allowed his emotions to get the better of him. He knew that he could have contacted Safe Work but considered that it would have been "impossible" for an inspector to arrive in sufficient time to address the issues. While he acknowledged that he could have left the site and followed the matter up later, he did not consider this was a practical option either. Rather, he felt that taking matters into his own hands was the only practical option to prevent serious injury. 66 With respect to his conduct on the following day, Danalis deposed that he did not think that Thomas was acting reasonably or in good faith by asking him to undertake an induction when he had never before been required to and when he had been "so obstructive" the previous day. That was consistent with what he had said in cross-examination. After readily admitting that he entered the site without Thomas's permission and having refused to undertake a site induction, he conceded that, generally they should do an induction but said that "usually they supply someone to escort you for your walk". That was what they were seeking and what they thought was appropriate. The exchange continued: Yes. But it's not for you as the entry permit holder just to decide not to do it when you're asked to do it?---Generally I agree with you, yes. You knew that what you were doing was inappropriate for a permit holder, to go off on a walk unaccompanied after having not been given permission to do it?---At that time I didn't consider that we were doing was inappropriate. … All right. Are you prepared to accept now that it was?--- I think I would have approached the entire issue differently. I understand that there's a requirement to - you know, that you should do an induction and that it's for the safety of everybody on site. I'm not disputing that. The real issue at this, you know, time was whether it was raised in good faith. I don't consider that it was. Having said that, those were very particular events. I had never been asked before to do an induction on a building site. I had been asked at a very complicated, you know, electrical site, for example, a BHP or something. So, these were very unique circumstances, and in those circumstances, I found it extraordinary, and for those reasons I didn't consider that it was reasonable, but - yes, it's a complicated issue, frankly. But it's not for you as an entry permit holder, is it, to question or second-guess the good faith of a request to carry out a site induction, is it?---Not in general circumstances. Well, not ever?---Wel1, if you've got a boss who's, frankly, acting towards you in a very unprecedented way, when all we're saying to him is we want to go out, walk for ten minutes, come with us, I think that it is - and we didn't question his good faith on the day, not openly, but yes, we didn't accept that what he was asking us was reasonable in the circumstances. 67 After referring to this evidence in his affidavit, Danalis accepted that his "subjective view at the time" was irrelevant to whether he had contravened the FW Act. 68 Danalis went on to say that well before the hearing he regretted his conduct. He said that in 2018, he decided he no longer wanted to work as a union organiser, largely because he neither enjoyed nor wished to continue working in "the industrial relations environment of the construction industry". Consequently, he updated his resume, applied for work elsewhere, enrolled in the College of Law to complete his Graduate Diploma of Legal Practice, and undertook work experience in a law firm. 69 Danalis deposed that he does not intend to return to work for the Union. During the last three years he has worked for the Health Services Union (HSU) as an industrial officer, completed his legal studies, and applied for admission as a solicitor. 70 He said he does not believe he is ever likely to contravene the Act again. He no longer holds a right of entry permit and has decided to pursue a career in a very different kind of workplace. He concluded: I have spent much time considering my own responses and behaviour during November 2018 and why I did what I did. With the benefit of hindsight I believe if I were ever to find myself in a similar confrontational situation that I am now much more mature, wiser and able to respond in an appropriate and acceptable way to the pressures of such a situation. 71 Mr Latham submitted that Danalis was contrite and had shown significant insight. The Commissioner submitted that this was an overstatement, arguing that Danalis had shown no insight into, or contrition about, the impact of his conduct on workers with whom he interacted or with Crookes. The Commissioner also submitted that Danalis had neither acknowledged nor expressed regret for the damage he had caused and had not cooperated with the Commissioner. With respect to his conduct on the first day, the Commissioner contended that Danalis reiterated his opinion that Crookes management had acted unreasonably and apparently suggested that he had no option in the circumstances to do as he did. With respect to his conduct on the second day, the Commissioner contended that Danalis had maintained that Thomas was unreasonable. For these reasons the Commissioner urged the Court to give only "minimal weight" to Danalis's expressions of remorse. 72 It may well have been an overstatement to say that Danalis has shown "significant" insight. The Commissioner is right to point out that Danalis did not acknowledge or express regret for the damage his actions caused Crookes or their effect on those with whom he interacted. But I do not accept the Commissioner's other submissions. The Commissioner fails to distinguish between Danalis's explanation for his conduct on the days in question and his later reflections on his behaviour. Moreover, while it was Thomas's right to insist on an induction and in those circumstances the officials had no right to enter the site unless accompanied, Danalis's suspicions that Thomas was acting out of spite were not without foundation. And although Danalis did not cooperate with the Commissioner, forcing him to present his case in this Court and call nine witnesses to give evidence, as Danalis was found not to be liable to three of the seven contraventions pleaded against him, this submissions should be accorded limited weight. 73 I reject the submission that minimal weight should be given to Danalis's expressions of remorse. I believe he is contrite and his contrition is supported by the acts he has taken to remove himself from the construction industry and pursue a new career. In view of those acts, the prospect that he might reoffend is remote, even fanciful. In these circumstances, there is little or no need for specific deterrence. But the penalties imposed on him must reflect the need for general deterrence. 74 In his affidavit Mr Danalis also referred to the impact of newspaper reports concerning his conduct on 27 November 2018. 75 On 17 December 2019 an article apparently based on a media release issued by the Commissioner appeared in The Australian Financial Review (AFR). An affidavit from his solicitor, Timothy McCauley, reveals that a concerns notice was sent to the publisher on 17 January 2020 alleging that a number of defamatory imputations were conveyed by the publisher in the article and seeking an apology. Those reports published the allegation made in the Commissioner's pleading that "Danalis ran a finger across his throat" when directing the driver of the Second Truck not to enter the site. It carried the headline: "Union Official 'made throat slitting gesture'". The AFR denied that the alleged imputations were conveyed and claimed that in any event it had a complete defence. Some three months after the concerns notice was published and following an exchange of correspondence, however, it agreed to publish a "clarification" in terms satisfactory to Danalis. 76 It is common ground that the Commissioner did not use the term "throat slitting gesture" either in his pleading or in his media release. The media release issued by the Commissioner relevantly stated: When a second concrete truck tried to enter the project site all three CFMMEU officials blocked its path. Mr Danalis then shouted words to the effect: "We are shutting down the site". He then ran his finger across his throat. 77 The Commissioner claimed that that was "a genuine allegation based on the evidence of Kerry McMurray". In fact, however, it was a misrepresentation of that evidence. McMurray's evidence was that Danalis had signalled to the driver to turn off his engine by moving his hand across his throat. The Commissioner's pleading substituted "finger" for hand and omitted the reference to the purpose and context of the gesture. In his evidence on liability Danalis denied running a finger across his throat. He said that he made "a stop gesture" with his right hand at shoulder height, flicking his wrist back and forth. That evidence was consistent with McMurray's description. I accepted Danalis's evidence (at [217] of the liability judgment). 78 Danalis was understandably offended by the way in which his gesture was portrayed in the article. Although the Commissioner did not use the term "throat slitting gesture", he bears some responsibility for it as his description was reasonably capable of conveying the impression that that is what Danalis did and that might well have conveyed something sinister to the ordinary reasonable reader of the publication. Danalis deposed that he was worried that what was published could jeopardise his employment with the HSU though assured by the General Secretary that it would not. He was worried that employers would make allegations against him of not bargaining in good faith or conducting himself professionally based on a reputation he had developed as a result of the publication of the "throat slitting allegation". He said the publication of the allegation "took a huge toll on [him]", caused him to lose sleep, and to become stressed and also upset at seeing the distress the allegation had caused to people close to him. He was concerned about the long-term damage the allegation could do to him personally and professionally and felt that people who did not know him would think he was violent and unstable. 79 Danalis spoke of conversations with HSU organisers and others indicating that he was acquiring a reputation for violence or thuggery ostensibly as a result of the AFR article. For example, he said that on one occasion in or around January 2020, he walked into a room in the HSU office where a number of organisers were reading the article and one of them said to the group that he had "threatened to slit someone's throat at a building site". In February or March 2020 one of the organisers told him that the human resources managers were searching his name and reading the articles about him making a throat slitting gesture. She said: We think it makes you vulnerable to false complaints. Any manager just needs to make any complaint about your conduct and they will probably be believed. Why don't you ask to get taken out of bargaining? 80 Another said: So far managers at St Vincent's Hospital and Ramsay Health Care have told me directly that they have read the articles about you. I suspect that Red Cross has raised it as well judging by how their managers are acting in bargaining meetings. We like having you doing bargaining and we are learning a lot from you, but it's up to you if you think you can handle the headache they are going to give you. 81 Danalis deposed that he raised these matters with his direct manager who supported reducing the amount of bargaining with which he was involved and another industrial officer was appointed to do the majority of the bargaining work. 82 The Commissioner should not have pleaded the matter as he did. The particular pleading was unnecessarily inflammatory. Indeed, it was unnecessary. A pleading must state the material facts on which a party relies but not the evidence by which the material facts are to be proved: Federal Court Rules 2011 (Cth), r 16.02(1). The expression "material fact(s)" refers to the facts essential to the existence of the cause of action, that is, the fact or combination of facts giving rise to the right to sue the respondents: Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245 (Wilson J). It does not mean all relevant facts or circumstances. A fact is only material if it is an essential element of the cause of action: Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Limited [2002] FCA 1568 at [13] (Lindgren J). The erroneous allegation that Danalis ran his finger across his throat was not an essential element of any of the contraventions. The nature of his gesture was a matter for evidence, not a material fact. 83 Mr Latham submitted that the Court should take into account in mitigation of the penalty the harm Danalis had suffered as a result of the publication as an "extra curial punishment". The Commissioner argued otherwise, referring to another AFR article that had been published on 19 November 2019 apparently about his conduct the subject of the WGC Cranes Case. That article referred to Danalis allegedly telling a crane operator that he was "nothing but a scab piece of shit" and a "dog" before spitting at his feet. This was sourced from the Commissioner's statement of claim in the WGC Cranes Case. That statement of claim was later amended to remove that allegation but Danalis admitted to engaging in a "heated argument" with the crane operator and to two contraventions of s 54(1) of the BCIIP Act: WGC Cranes Case at [54], [67]. The Commissioner therefore submitted that any reputation Danalis had for being a "ball breaker" or of a "violent nature" was unlikely to be sourced only in the 17 December 2019 AFR article. But making a throat-slitting gesture is tantamount to making a threat to kill. It is qualitatively different from insolence, rudeness, and/or engaging in a heated argument. 84 The maximum penalties for the three contraventions arising out of the conduct on 27 November 2018 is $37,800. 85 Taking all relevant factors into account, for the two contraventions of s 500 I would impose a single penalty of $6,000 and for the contravention of s 503 I would impose a penalty of $3,000. 86 For the contravention on 28 November 2018 I would impose a penalty of $2,000 (roughly 17% of the maximum). The Commissioner argued, in effect, that the penalty for Danalis's contravention on 28 November 2018 should be the same as each of his contraventions relating to his conduct the previous day. I do not accept that that would be appropriate. The conduct on 28 November 2018 was not as serious. The Commissioner accepted that it was in the low range for Dimitriou and I see no reason why it should be any higher for Danalis. 87 The sum of these figures is $11,000. There is no need for a further adjustment to reflect the totality principle.

Dimitriou 88 The Commissioner submitted that the penalty for Dimitriou attracted a penalty in the low range (20%-40% of the maximum). 89 I agree that the penalty for Dimitriou should be in the low range. Forty percent of the maximum penalty is outside the range and would be inappropriate. While Dimitriou has exhibited no insight and expressed no contrition, and did not cooperate with the Commissioner, this was an isolated event and Dimitriou is a first "offender". 90 I also note that Dimitriou faces the possibility of extra-curial punishment. Section 510 of the FW Act requires that the Fair Work Commission revoke or suspend his entry permit unless it is satisfied that revocation or suspension would be harsh or unreasonable in the circumstances. 91 Taking all relevant matters into account, I would impose a penalty of $3,000 which is roughly 25% of the maximum. It is slightly higher than the penalty I have fixed for Danalis because of Dimitriou's lack of contrition.

The Union 92 The Union is a notorious repeat "offender". It has an extensive history of contravening industrial laws. The Commissioner tendered a table which summarised the cases in which it had been found to have contravened industrial laws and the penalties imposed for the contraventions. The table ran to 85 pages. Some 182 cases were listed spanning more than two decades. Notably, before the events the subject of this proceeding in November 2018 the Union had been found to have contravened s 500 of the FW Act 118 times and s 503 seven times. Penalties were imposed in all these cases with apparently little, if any, deterrent effect. 93 The Commissioner submitted that the Union is large, well-resourced organisation with a direct interest in industrial matters. Evidence tendered by the Commissioner establishes that the Union is both cash and asset rich and has capacity to pay the penalties sought. 94 The Union adduced no evidence to show that it has any system in place to ensure compliance or prevent or reduce the risk of its officials or employees breaking the law. It has adduced no evidence to indicate that it has taken any corrective action. It appears to have no culture of compliance. If anything, the evidence suggests it has a culture of non-compliance. While it insists on employers complying with the law, it behaves as if it is above the law. I respectfully agree with the following observations of White J in Australian Building and Construction Commissioner v Menon [2020] FCA 1418 at [75] and the Full Court in the Non-Indemnification Personal Payment Case his Honour cited there: The imposition of the penalties does not appear to have had any effect on [the Union's] conduct. The impression one has is that the [Union] at least tolerates, and more likely condones, the conduct of the of organisers which occurred in this case and that, in the past, it has regarded the penalties imposed by the Court as simply a cost of conducting its industrial affairs in the manner it chooses. As was stated by the Full Court in The Non-Indemnification Personal Payment Case at [23]: … It is difficult, if not impossible, not to come to the conclusion that the Union is prepared, when it suits it, to contravene the Act and, as here, seek to coerce employers to comply with its demands. Without evidence to the contrary, it is a natural inference that those officials of the Union … tolerate and facilitate this attitude and approach of contraventions of the Act at the choice and will of the Union. 95 The Commissioner submitted that the Union should receive penalties in the high range (70%-100%) in each case. He argued that the penalty should reflect the "higher degree of culpability for the conduct of Danalis and Dimitriou 'in its hands' (over which it has organisational responsibility), its history of prior offending to the point of recidivism, and the fact that it is a large well-resourced organisation such that a small penalty risks being ineffective as a deterrent". While I do not consider that the contraventions should attract the maximum penalties, I do accept that that the matters to which the Commissioner referred affect the extent of its culpability. In particular, I accept that the Union's history of contravening conduct reflects a continuing attitude of disobedience of the law and a heightened need for both specific and general deterrence. At the same time, however, the penalties must be proportionate to the gravity of the particular contraventions. 96 For each of the two contraventions of s 500 on 27 November 2020 I would impose a penalty of $40,000, taking into account their interrelationship. For the contravention of s 503 I would impose a penalty of $50,000, making a total of $130,000. For the two contraventions of s 500 on 28 November 2020 I would impose two penalties each of $20,000, giving an overall total of $170,000. 97 I see no basis for reducing the penalties under the totality principle.

Should personal payment orders be made? 98 The Commissioner asked for orders to be made which seek to ensure that Danalis and Dimitriou are personally responsible for paying any penalties imposed on them and do not seek or receive an indemnity with respect to those penalties from the Union, whether directly or indirectly. In Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at [44] Kiefel CJ observed that a personal payment order brings home to the contravenor "the reality of a pecuniary penalty which is critical to the attainment of the deterrent effect which is the very point of the penalty" and "seeks to accomplish the purpose for which the power is given … within the limits of what is necessary to its effective exercise". 99 The Commissioner submitted that feeling the sting of a penalty is part and parcel of the imposition of the penalty and making an order which allowed the Union to pay the penalty would not accomplish the statutory purpose. 100 I accept that the power to make a personal payment order is not limited to cases in which a substantial level of specific deterrence is warranted. I also accept that the making of a personal payment order may also further general deterrence. But there is no obligation on a court to make a personal payment order in any, let alone every, case. An order of this nature is discretionary. There is no evidence that the Union would pay the penalties imposed on Danalis and Dimitriou or indemnify them in some way. I accept that there is at least a reasonable possibility that it would do so, particularly in Dimitriou's case because as far as I am aware he remains an official in the employ of the Union. I also accept that it may operate as a more potent deterrent. But specific deterrence is essentially irrelevant in Danalis's case for the reasons I have given and, since Danalis is no longer an official or employee of the Union, there is no particular reason why I should necessarily infer that the Union would indemnify him. I am therefore not disposed to make a personal penalty order in his case. Nor am I inclined to make a personal penalty order in Dimitriou's case notwithstanding the features of his case that distinguish his position from that of Danalis.

Conclusion 101 Declarations will be made in the form raised with the parties during oral argument. 102 Orders will be made penalising the Union and the two officials in the sums mentioned above. All penalties should be paid to the Commonwealth within 28 days. 103 The Commissioner did not seek costs, presumably because the proceeding related to a matter arising under the FW Act and the Court's power to award costs in such a case is circumscribed by the limits imposed by s 570 of that Act none of which apparently apply here. In these circumstances there will be no order as to costs. I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.

SCHEDULE OF PARTIES NSD 2057 of 2019 Respondents Fourth Respondent: ANTHONY BURKE

Building and Construction Industry (Improving Productivity) Act 2016(Cth)

Crimes Act 1914(Cth)s 4AA

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301; 275 IR 148 Mill v The Queen (1988) 166 CLR 59 Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 Parker v Australian Building and Construction Commissioner (2019) 270 FCR 39 Pattinson v Australian Building and Construction Commissioner (2020) 282 FCR 580 Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 Williams v Construction, Forestry, Mining & Energy Union (No 2) [2009] FCA 548; 182 IR 327

At a glance

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Judgment (21 paragraphs)

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Legislation Cited (5)

Cases Cited (22)

Cited By (3)