One or Two Contraventions
23 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.
24 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 DFWBII 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.
25 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.
26 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.
27 The sentencing court may take into account the fact there is an interrelationship between the legal and factual elements of two or more contraventions to ensure the contravener is not punished twice for the same conduct. The Court may take into account that multiple contraventions may properly be seen as a single course of conduct and that may lead the Court to take the following approach:
In the present case, it is appropriate to take the single course of conduct into account by imposing separate fines for the two offences which when aggregated would represent a single penalty appropriate to punish the single course of conduct concerned. Fixing an amount of fines that when taken together represent a single penalty appropriate to punish the one course of continuing conduct begins from the premise that the maximum penalty for all of the contravening conduct that comprises a single transaction, but constitutes two separate offences, is to be treated, in effect, as $110,000 for the Union and $22,000 for Mr Mates: cf Mornington at [18] (per Gyles J) and at [47]-[49] (per Stone and Buchanan JJ).
(Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; (2009) 262 ALR 417 at [31]). This approach is closely allied to the totality principle and, in particular, that aspect of the principle which requires consideration to be given to proper proportionality (Mill v The Queen (1988) 166 CLR 59 at 62-63; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 at [61]).
28 However, the third approach is not applied as a matter of course and a sentencing judge is not obliged to take the approach even if the offences are properly characterised as arising from one transaction or a single course of conduct (Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 at [42] per Middleton and Gordon JJ). There was very little argument in this case about this approach.
29 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.
30 I return to the arguments concerning the first approach.
31 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) 241 FCR 338 ("Robinson") and The Yarra's Edge Case.
32 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.
33 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.
34 Her Honour said that, in the alternative, the course of conduct provision (s 557(1) of the FW Act) applied because, among other things, the two stop work meetings coincided in time and purpose and were geographically proximate, and therefore, there is taken to have been a single contravention (at [56]).
35 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.
36 The DFWBII submitted that the proper approach was that each contravention by a union official was a contravention by the union by reason of the attribution provisions in the FW Act, whether it be s 363 or s 793. That was the approach taken by White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 (at [23]-[24], [106], [115]-[116]) and Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 (at [7]-[14], [48]-[58], [198]) and Siopis J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 616 (at [33]). I note that as far as I can see, the argument now put by the CFMEU does not appear to have been put in either of those cases.
37 There were two threats in this case, one by Mr Cartledge and the other by Mr McDermott. No doubt they were closely related, as I have indicated, but they remain two threats. I accept that s 363(1) of the FW Act does not in terms attribute the contraventions to the CFMEU and that it is the actions of Mr Cartledge and Mr McDermott which are attributed to the CFMEU. Nevertheless, those actions involved two threats. Once that conclusion is reached, it is not clear to me by what process of reasoning or principle a court would be entitled to say that for attribution purposes there was one contravention rather than two, or by reference to what principle a court would be able to distinguish between cases involving one contravention as distinct from two contraventions. It might be different if the words of the provision contravened made it clear that there could be only one contravention. Otherwise, in my opinion, the course of conduct or single course of conduct considerations are reflected in one of the other three approaches where applicable. I would also note it may be that the presence of s 557 of the FW Act and the limitations on its scope in s 557(2) of the FW Act bears upon the problem in the case of civil remedy provisions not referred to in s 557(2) of the FW Act. I do not think the first approach can be taken in the case of s 343(1) of the FW Act.
38 As I have said, very little was said by the parties about the third approach. Again, nothing was said by the parties about whether s 557 of the FW Act, albeit dealing with the number of contraventions, bore upon the application of the third approach. In the circumstances, I will say nothing more about the third approach.
39 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.