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

Federal Court of Australia|2017-05-11|Before: Barker J

Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union (2008) 171 FCR 357; [2008] FCAFC 170 Ponzio v B&P Caelli Constructions Pty Ltd (2007) 158 FCR 543 R v MacNeil-Brown (2008) 20 VR 677: [2008] VSCA 190 Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61; [2008] FCA 1426 The Queen v Mcinerney (1986) 42 SASR 111 Trade Practices Commission v CSR Ltd (1991) ATPR 41-076; [1990] FCA 521 Veen v The Queen (No 2) (1988) 164 CLR 465; [1998] HCA 14 Wong v The Queen (2001) 207 CLR 584]; [2001] HCA 64

National Practice Area: Employment & Industrial Relations

Counsel for the Applicant: Mr JL Bourke QC with Mr JD Forbes

Solicitor for the Applicant: Corrs Chambers Westgarth

Counsel for the Respondents: Ms RM Doyle SC with Mr TC Borgeest

BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent

MICHAEL BUCHAN (and others named in the Schedule) Third Respondent

JUDGE: BARKER J DATE OF ORDER: 11 MAY 2017

In respect of the declarations made on 30 November 2015, the following pecuniary penalties be imposed on the following respondents: (a) In respect of Declaration 1, the sum of $3,500 on the Sixth Respondent (Upton). (b) In respect of Declaration 2, the sum of $2,500 on the Seventh Respondent (Heathcote). (c) In respect of Declaration 3, the sum of $3,500 on the Fifth Respondent (Harris). (d) In respect of Declaration 4, the sum of $6,500 on the Second Respondent (McDonald). (e) In respect of Declaration 5, the sum of $2,500 on the Fourth Respondent (McCann). (f) In respect of Declaration 6, the sum of $5,000 on the Third Respondent (Buchan). (g) In respect of Declaration 7, the sum of $22,000 on the First Respondent (CFMEU). (h) In respect of Declaration 8, the sum of $22,000 on the First Respondent (CFMEU). (i) In respect of Declaration 9, the sum of $22,000 on the First Respondent (CFMEU). (j) In respect of Declaration 10, the sum of $2,000 on the Fifth Respondent (Harris). (k) In respect of Declaration 11, the sum of $22,500 on the First Respondent (CFMEU).
Pursuant to the Fair Work Act 2009 (Cth), the penalties be paid to the Commonwealth. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent

JUDGE: BARKER J DATE OF ORDER: 11 May 2017

In respect of the declarations made on 30 November 2015, the following pecuniary penalties be imposed on the following respondents: (a) In respect of Declaration 1, the sum of $6,500 on the Second Respondent (McDonald). (b) In respect of Declaration 2, the sum of $5,000 on the Third Respondent (Buchan). (c) In respect of Declaration 3, the sum of $22,000 on the First Respondent (CFMEU). (d) In respect of Declaration 4, the sum of $22,000 on the First Respondent (CFMEU).
Pursuant to the Fair Work Act 2009 (Cth), the penalties be paid to the Commonwealth. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent

JOSEPH MCDONALD (and others named in the Schedule) Third Respondent

JUDGE: BARKER J DATE OF ORDER: 11 may 2017

In respect of the declarations made on 30 November 2015, the following pecuniary penalties be imposed on the following respondents: (a) In respect of Declaration 1, the sum of $2,500 on the Second Respondent (Noonan). (b) In respect of Declaration 2, the sum of $7,500 on the Third Respondent (McDonald). (c) In respect of Declaration 3, the sum of $6,000 on the Fourth Respondent (Buchan). (d) In respect of Declaration 4, the sum of $3,500 on the Fifth Respondent (Harris). (e) In respect of Declaration 5, the sum of $22,000 on the First Respondent (CFMEU). (f) In respect of Declaration 6, the sum of $22,000 on the First Respondent (CFMEU). (g) In respect of Declaration 7, the sum of $22,000 on the First Respondent (CFMEU). (h) In respect of Declaration 8, the sum of $22,000 on the First Respondent (CFMEU).
Pursuant to the Fair Work Act 2009 (Cth), the penalties be paid to the Commonwealth. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 The questions raised in these three proceedings concern what orders should be made against the respondents in light of their admitted contraventions of the Fair Work Act 2009 (Cth) (FW Act) by reason of their conduct in 2013 in the vicinity of the New Perth Childrens' Hospital project in Nedlands, Western Australia. 2 While the proceeding was commenced by the Director, Fair Work Building Industry Inspectorate, following a change in legislation the name of the applicant was amended by an order of the Court on 21 December 2016 to the Australian Building and Construction Commissioner. The Commissioner seeks orders that the respondents in each of the proceedings be required to pay pecuniary penalties in respect of their admitted contraventions of the FW Act. 3 At a liability hearing on 30 November 2015, the respondents in all matters were found liable for each of a number of admitted contraventions and, by consent, I made declarations as to the admitted conduct. 4 Prior to the liability hearing, the Commissioner had foreshadowed that he would seek, against each of the individual respondents, orders that they personally pay any pecuniary penalty that they may be ordered by the Court to pay. The Commissioner foreshadowed that he would seek orders of the type ordered by Flick J in Director of the Fair Work Building Industry Inspectorate v Bragdon (No 2) [2015] FCA 998. 5 At the time of the liability hearing on 30 November 2015, Bragdon was the subject of appeal. For that reason, I adjourned the further hearing of these matters in relation to the question of penalty to a date to be fixed following the Full Court decision. On 28 April 2016, the Full Court delivered its decision in Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64. Bragdon was reversed on appeal, but this particular question was left unresolved. 6 The same question was then considered by Mortimer J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436, where her Honour also considered the Court has power to make orders of the type made in Bradgon. However, in a subsequent appeal from her Honour's decision, the Full Court held the Court is not empowered to make such an order. See Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2016] FCAFC 184. As a consequence, the question of penalty now falls to be decided.

The evidence in these proceedings 7 At the liability hearing on 30 November 2015, the Commissioner relied upon the following affidavits which have been filed and served in either the above three proceedings or in the now settled WAD 133/2013 (John Holland proceeding) proceeding, wherein John Holland was the applicant, and the Construction, Forestry, Mining and Energy Union (CFMEU) and others were the respondents and the Commissioner was an intervener: Mr Radivoj (Rod) Banjac affirmed 7 July 2015; Ms Renee Margaret Brooking affirmed 6 July 2015; Mr Morris Holder sworn 7 July 2015; Mr Patrick John Kelly sworn 30 June 2015; Mr Gregory Nicholas Montana sworn 7 July 2015; Mr Brett Roland Roberts affirmed 3 July 2015; Ms Stacey Scaffardi sworn 7 July 2015; Mr Lindsay Robert Albonico sworn 8 July 2015; Mr Sam Buick affirmed 9 July 2015; Mr Stephen Grafton Chaseling sworn 9 July 2015; Ms Sarah Louise Hale affirmed 10 July 2015; Mr Robert John Marchant sworn 9 July 2015; Ms Tamianne Louise McSherry affirmed 9 July 2015; Mr John Ryan Pond affirmed 7 July 2015; Mr Ryan Carrington affirmed 7 July 2015; Mr David Paton affirmed 10 July 2015; Mr Peter Free affirmed 13August 2015; and Ms Melanie Anne Mallot affirmed 3 May 2013. 8 At the liability hearing each of the affidavits was formally read and received into evidence. Pursuant to the orders that I made by consent on 30 October 2015 in the John Holland proceeding, each fact or matter in any of the affidavits constitutes an "agreed fact" within the meaning of that term for the purposes of s 191of the Evidence Act 1995 (Cth). 9 At the liability hearing, draft declarations were tendered by consent, and were subsequently made by the Court. 10 The respondents refer to a number of these affidavits in their submissions and also rely on the affidavits of Mr Simon Alexander Millman, made 21 June and 28 June 2016.

The maximum penalties available 11 Sections 340, 346 and 348 of the FW Act are civil penalty provisions. 12 By ss 546, 539(2) Item 11 and 546(2)(b) of the FW Act, the maximum penalty available for a contravention of these provisions is 300 penalty units for a body corporate and 60 penalty units for an individual. 13 At the time of the relevant conduct, the value of a penalty unit was $170 (see s 4AA(1) of the Crimes Act 1914 (Cth) as from 14 January 2013). Accordingly, the maximum penalty for a contravention of any of these provisions is: for the CFMEU, $51,000; and for the individual respondents, $10,200.

General approach to determination of penalties 14 The general principles for determining the appropriate penalties in a case such as this are well established. 15 There are at least three purposes for imposing penalties for breaches of industrial law: (1) punishment - which must be proportionate to the offence and in accordance with prevailing standards of punishment; (2) deterrence - both specific (or personal) and general; and (3) rehabilitation. See Ponzio v B&P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at [93]; [2007] FCAFC 65; Director of the Fair Work Building Industry Inspectorate v Cartledge [2014] FCA 1047 at [51]. See also Director, the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59 at [67]-[69]. 16 Deterrence is a significant consideration, and will frequently be of primary importance. See [2015] FCAFC 59 at [69] and [71]. 17 Although rehabilitation is said to be one of the purposes for imposing penalties, it does not appear to be treated as a significant factor by the Court in the industrial law context. See Cartledge at [54], citing Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 160 at [51] (White J), citing Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 51, 152; [1990] FCA 521. In this case, it will be of little relevance, particularly in relation to those of the respondents who have a history of non-compliance. 18 By a process outlined in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [27] and [55]; [2008] FCAFC 8 of "instinctive synthesis", a court is required to take into account all relevant factors and to arrive at a single result which takes due account of them all. See Wong v The Queen (2001) 207 CLR 584 at [74]-[76]; [2001] HCA 64; Cartledge at [52]. In some recent decisions, the expression "intuitive synthesis" has been preferred. See [2015] FCAFC 59 at [86], referring to R v MacNeil-Brown (2008) 20 VR 677: [2008] VSCA 190. 19 Proportionality and consistency operate as a final check on the penalty. See Australian Opthalmic Supplies at [54]. Proportionality requires that the punishment be proportionate to the contravening conduct. Consistency requires that, all other things being equal, similar contraventions should incur similar penalties. 20 When imposing penalties for multiple contraventions the Court must take into account the totality principle. See Australian Opthalmic Supplies at [23]. 21 The totality principle requires that, after the Court has fixed a penalty appropriate for each individual contravention, the Court consider whether the total of those penalties is appropriate for the total contravening conduct. See Australian Opthalmic Supplies at [23], [96]-[97]; Cartledge at [59], and Director of Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 at [151]. 22 In light of the High Court's recent decision in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476; [2015] HCA 46 the parties may make submissions to the Court concerning the appropriate penalties to be imposed. 23 The Commissioner has provided a consolidated table of proposed penalties (Penalty Table) which sets out each of the admitted contraventions in each proceeding and the penalty range which the Commissioner submits is appropriate for each contravention, having regard to relevant matters. 24 The Commissioner submits that taking account of the relevant principles and the admitted conduct, the penalties set out in the Penalty Table are appropriate and within the permissible range. 25 The respondents also make submissions as to the appropriate penalties.

Relevant factors in this case 26 Courts exercising industrial jurisdiction have identified a range of factors that may be relevant when assessing the appropriate penalty. See Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union (2008) 171 FCR 357 at [57]; [2008] FCAFC 170. 27 The Courts have, however, warned against the use of checklists because they give rise to the risk of transforming the process of instinctive synthesis into the application of a rigid catalogue of matters for attention. The Court observed, at [89]-[91], in Australian Ophthalmic Supplies: At the end of the day the task of the court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligation. 28 Bearing in mind the warning against applying a rigid checklist of matters, Plancor at [57]; Cartledge at [57]; and Stephenson at [73] have recognised the following factors as potentially relevant to the imposition of a penalty in an industrial regulatory context: the nature and extent of the conduct which led to the breaches; the circumstances in which the relevant conduct took place; the nature and extent of any loss or damage sustained as a result of the breaches; previous contraventions of industrial legislation; whether the breaches were properly distinct or arose out of the one course of conduct; the size of the business enterprise involved; whether or not the breaches were deliberate; whether senior management was involved in the breaches; whether the party committing the breach had exhibited contrition; whether the party committing the breach had taken corrective action; whether the party committing the breach had co-operated with the enforcement authorities; and the need for specific and general deterrence. 29 When taking into account as a relevant factor whether there are any previous contraventions of industrial legislation, it is necessary to have regard to the way in which prior contraventions can be relevant to the evaluation of the appropriate penalty. 30 An absence of any prior contraventions can mitigate what would otherwise be an appropriate penalty. 31 On the other hand, a history of prior contraventions may be relevant in two ways: first, by depriving the contravener of the mitigation that would follow from a clean record; and secondly, similar previous conduct may demonstrate that a contravener has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the contravener has failed to take adequate steps to prevent further contraventions. 32 Prior offences involving conduct of a different character to that engaged in any of these proceedings, may still be of relevance. As White J observed at [53]-[54] in [2014] FCA 160: Even when the previous offending involved conduct of a different character, it may still be relevant to sentencing. Depending upon the circumstances, a history of previous convictions may indicate an attitude of defiance, or indifference to, compliance with the law. In either case, considerations of personal deterrence will usually be important in the sentencing process. What is important is the quality of the conduct in each case and its relevance to the norms of industrial behaviour which the current legislation seeks to establish or support. 33 While prior contraventions may be taken into account in assessing penalty, they cannot, however, be given such weight as to lead to the imposition of a penalty that is disproportionate to the gravity of the current contravention. 34 I will now record the submissions made by the parties concerning relevant factors before considering their final relevance and the appropriate penalty in the case of each respondent.

Nature and extent of the conduct and circumstances in which it occurred

Generally 35 The Commissioner submits that: The conduct of the CFMEU and individual respondents occurred during the construction of significant public works, namely, a new children's hospital for Perth. The respondents acted with no regard to how their individual or collective actions may impact on the completion of the children's hospital. The conduct was particularly egregious in that it severely impacted ordinary workers who sought to attend for work, involved elements of intimidatory, threatening and coercive behaviour and deliberately caused disruption to operations at the site at the most critical and vulnerable times (for example, a concrete pour on 18 July 2013). Each matter revealed the active involvement and endorsement of unlawful conduct by senior CFMEU officials, including the WA State Secretary (Mr Michael Buchan), the WA Assistant State Secretary (Mr Joseph McDonald) and, on 18 July 2013, the National Secretary (Mr David Noonan). 36 More generally speaking, the respondents observe that they proceeded to resolve these proceedings in so far as liability was concerned, prior to the trial date. Amended defences containing admissions were filed and declarations were made by consent on the trial date of 30 November 2015. They say the parties also agreed to a regime for the treatment of evidence on that occasion as illustrated by order 7 of the orders made on 30 October 2015, as a result of which a number of the affidavits referred to above were filed. 37 In relation to the penalties now sought by the Commissioner, the respondents submit that they are excessive in a number of respects. It is further submitted that: Insufficient weight is given by the Commissioner to the need to discount any penalty imposed on the CFMEU by reason of the related John Holland proceedings, with a result that the CFMEU would be subjected to double punishment. The Commissioner fails to apply the appropriate discount to the penalties imposed on the CFMEU in circumstances where multiple contraventions by the CFMEU relate to conduct by officials which took place on the same day and arises out of a single course of conduct. The Commissioner seeks to draw an inference that John Holland has suffered economic loss as a result of the contraventions in circumstances where that inference is not open to the Court. Indeed, the respondents submit that the absence of proof of any economic loss ought to be treated as a factor in mitigation. The question of cooperation, appropriate penalty range and indemnity prohibition orders are dealt with further below. 38 While the respondents accept that the Commissioner's submissions in respect of each proceeding, as set out below, are broadly accurate, they submit there are certain aspects of events not explained to which the respondents draw attention as follows. I will now set out the competing evaluations.

Commissioner's submissions in WAD16/2014 39 The Commissioner submits that the events of 25 January 2013 involved deliberate steps by the relevant respondent union officials to prevent workers being able to attend the site to work that day. The effect of the blockade and subsequent strike action was that between 109 and 136 employees did not work that day because they were either prevented from entering the site or dissuaded from doing so. Such deliberate and calculated conduct involved a serious breach of s 340 of the FW Act. 40 The Commissioner notes a further blockade and strike action occurred on 30 January 2013, in relation to which Mr Tawa Harris has admitted unlawful conduct. While Mr Buchan, Mr McDonald and Mr Steven McCann were in attendance at the site, Mr Harris physically occupied the entrance to prevent workers being able to access the site to attend work. Critically and of significance is the fact that Mr Harris attempted to physically prevent employees from entering the site. 41 The result of Mr Harris' conduct was that work was delayed from commencing by 45 minutes. His deliberate and calculated acts involved serious contraventions of s 340 of the FW Act. 42 The Commissioner says an aggravating factor is that, just days prior to Mr Harris' conduct, the Fair Work Commission had issued orders to prevent industrial action occurring on the project.

Respondents' submissions 43 The respondents say that on 25 January 2013 for a period of only just under an hour (about 5.30am to about 6.20am), Mr McDonald, Mr Harris and Mr Patrick Heathcote stood in front of the front gate to the site on the footpath and directed employees to attend a safety meeting which was held at the private Oral Health car park operated by the University of Western Australia. Throughout this time, employees were able to enter, and did enter, the site through the turnstiles at the front gate, or through the alternative access gate located about 30 metres away from the front gate. Mr McDonald also asked that the bicycle gate be opened. 44 From about 6.20am to 7.10am, Messrs McDonald, Buchan, McCann, Harris, Mr Bradley Upton and Mr Heathcote attended the safety meeting, which was also attended by approximately 100 employees. A number of safety issues at the site were discussed at the meeting. 45 At about 6.55am, Mr Buchan, Mr McCann and Mr Heathcote approached Mr Chaseling and Mr Albonico, and lawfully requested a meeting with John Holland to discuss the safety issues. Mr Chaseling and Mr Albonico refused to meet with Mr Buchan, Mr McCann and Mr Heathcote to discuss the safety issues at that time. 46 At about 7.00am, Mr Buchan informed the employees at the safety meeting that John Holland had refused to meet to discuss the safety issues. Following a motion put by Mr McDonald, about 70 to 80 per cent of the employees at the safety meeting voted to strike until the following Wednesday. 47 From about 7.10am to about 8.15am, Mr Heathcote and Mr Harris stood in front of the front gate to the site. Mr McDonald stood near the front gate and informed employees that they could not enter the site. Mr Chaseling manufactured a situation in which an employee attempted to enter the site through the front entrance and was informed by Mr McDonald that he could not enter the site. But during this time, several employees entered the site through the front gate. Entry to the site remained possible through the alternative access gate. John Holland continued to keep the bicycle gate closed. The employees employed at the site were rostered to perform work starting at about 6.30am. Following the safety meeting, about 86 workers did not work at the site on 25 January 2013. 48 They also say that on 30 January 2013 from about 4.15am, Messrs McDonald, Buchan, McCann, Harris, Upton and Heathcote attended outside the site. By about 6.15am, they were joined in the Oral Health car park by approximately 300 individuals, including approximately 150 individuals who were not employed at the site. 49 From about 5.40am to about 6.45am, a group of individuals, including Mr Harris, stood in front of the front gate to the site. During this time, a mere three workers attempted to enter the site through the front gate and were unable to do so. 50 For about 40 minutes (namely from about 6.30am to about 7.10am) Messrs McDonald, Buchan, McCann, Harris, Upton and Heathcote attended a meeting at which safety issues at the site were discussed. At about 6.50am, Mr Buchan and Mr McCann approached Mr Chaseling and Mr Albonico, and lawfully requested a meeting with John Holland. Mr Chaseling and Mr Albonico agreed to the meeting if the employees at the site returned to work. 51 The employees employed at the site were rostered to perform work starting at about 6.30am. Following the conclusion of the meeting at about 7.10am, all employees entered the site and commenced work for the day, though some employees were about 45 minutes late to start work. As the Commissioner's submissions accept, at [62], the result of Mr Harris' conduct was that commencement of work was delayed for a mere 45 minutes.

Commissioner's submissions in WAD95/2014 52 The Commissioner submits that, on 3 May 2013, the site was subjected to a blockade and strike action. The events involved a large number of CFMEU officials, and their conduct included both actions and statements which prevented or dissuaded workers from entering the site. The evidence reveals highly calculated and organised action by the CFMEU and its officials. 53 As a consequence of the events of that day, some 207 employees did not work on the site on that day. 54 An aggravating factor is that the unlawful conduct was organised by the CFMEU and the individual respondents despite the fact that only relatively recently, on 25 January 2013 and 19 February 2013, the Fair Work Commission had issued orders to prevent industrial action occurring on the project. These orders were clearly ignored 55 This aggravating matter is also applicable to the events of 18 July 2013, the subject of WAD135/2014. 56 The conduct of the CFMEU, Mr McDonald and Mr Buchan involved a deliberate and flagrant breach of industrial legislation and should be considered to be grave, warranting severe sanction.

Respondents' submissions 57 The respondents say that on 2 and 3 May 2013, the CFMEU communicated the Equal Pay Request to John Holland and the public at large by way of various media appearances, as well as a tent embassy outside the site, which was identified by a banner reading, "EQUAL PAY EMBASSY. Shame John Holland Shame - EBA Means Equal Pay." 58 From about 4.25am to about 11.15am on 3 May 2013, a crowd met at the Equal Pay Embassy. At about 5.00am, Mr Buchan had a conversation with Ms Scaffardi in which he raised concerns with safety at the site. At or about 6.40am, Mr McDonald raised issues about safety, pay and conditions with the group standing outside the site. 59 From about 5.06am to about 10.30am, a group of between 10 and 20 people stood in front of the main gate and directed people not to enter the site. Over the same period, a larger group of about 200 people stood near the main gate at the Equal Pay Embassy. 60 As a result of the group standing in front of the main gate, several workers attempted to gain access to the site, but were unable to. Throughout this time, entry to the site continued to be possible through the entrance on Hospital Avenue, which was used by Ms Scaffardi to enter the site. About 207 employees did not attend for work at the site on that day.

Commissioner's submissions in WAD135/2014 61 The Commissioner submits that the conduct on 18 July 2013 was clearly the most serious of the contravening conduct the subject of these three proceedings. 62 The admitted facts and evidence disclose that the CFMEU and its officials engaged in an elaborate plan to arrange for a vast crowd of people to attend and blockade the site (the crowd at one point reaching some 400 people). 63 It also involved directing persons to block the relevant access points to the site to prevent trucks gaining access to the site in order for a critical concrete pour, which had been scheduled for that day, being able to proceed. 64 The concrete pour involved a critical path activity. Some 40 to 45 truckloads of concrete and slurry had been planned for that day. These trucks could not access the site, and also because relevant workers could not access the site to carry out the concrete pour, the concrete pour had to be abandoned. 65 Furthermore, at the urging of Mr Noonan, Mr McDonald and Mr Buchan, some 205 employees did not attend for work that day.

Respondents' submissions 66 The respondents say that from about 5.00am to about 9.30am on 18 July 2013, a group of between five to 15 people stood directly in front of site Entrance 1, while other people stood in front of the slip lane entrance to the site. Over the same period, a larger group that varied at the relevant times between about 40 to about 600 met nearby on a median strip and in the Oral Health car park. 67 Between about 6.30am and about 7.30am, Mr Buchan, Mr McDonald and Mr Noonan addressed the crowd, including in relation to the Equal Pay Request. From about 9.30am, after the crowd had moved to the Oral Health car park, Mr Buchan, Mr Noonan and Mr McDonald addressed the crowd again, including in relation to the Equal Pay Request. A vote was put by Mr McDonald that the employees at the site withdraw their labour for the day, which was passed. At about 9.50am, the crowd dispersed. After this time, some employees entered the site for work that day, but most did not. 68 The employees employed at the site were rostered to perform work at the site starting from about 5.30am, 6.30am, or 8.00am. As a result of the group standing in front of site Entrance 1, several workers attempted to gain access to the site, and while some were successful, others were unable to. Furthermore, as a result of the group standing in front of the slip lane, several concrete trucks were unable to gain access to the site to carry out a scheduled concrete pour. 69 After the meeting, about 20 to 30 employees entered the site to work. There is otherwise no evidence of other employees entering the site to work, or the number of employees expected to work at the site on 18 July 2013. 70 The respondents contend that the evidence establishes that the respondents organised, and participated in, meetings next to the site. However, there is no evidence that would support a finding that the actions of the respondents were part of an "elaborate plan". Furthermore, while Mr Noonan addressed meetings next to the site, there is no evidence that Mr Noonan was aware of the planned concrete pour, nor physically obstructed any entrance, or that he had any involvement in disrupting the concrete pour.

Nature and extent of loss and damage 71 The Commissioner submits that: On each of the occasions that there was a blockade and industrial action at the site, it can be inferred that there was significant disruption to the progress of the project. This loss, however, has not been quantified. Although the Commissioner has not adduced evidence quantifying economic loss suffered by John Holland or other employers as a result of the unlawful blockade on 18 May 2013, the inference naturally arises from the evidence that the consequences of the respondents' conduct was precisely as they had intended, namely, sufficient disruption, inconvenience and expense to have their demands heard by the employers. The Court does not require evidence of economic loss in order to draw that inference.

Whether or not the contraventions were deliberate 72 The Commissioner submits that: Each of the contraventions was clearly deliberate and done with an unlawful intent. It is open to the Court to find that the mental attitudes of the respondents, particularly its most senior officials, Mr Buchan, Mr McDonald and Mr Noonan, were defiant and serious. Those states of mind are attributable to the CFMEU by the operation of s 793 of the FW Act. The motivation for the respondents' conduct, if it be asserted to be well intentioned or in the interests of members, does not diminish the seriousness of the contraventions. A penalty should not be reduced merely because a contravenor genuinely believes the ends justify the means. The conduct of a union official who appreciates that the law proscribes certain conduct as unlawful and therefore unjustified ought not be treated more leniently by reference to his or her subjective opinion that the law does not strike an appropriate balance. 73 The respondents submit that: While it is accepted that the conduct admitted by the respondents was intended, in the sense that there was a connection between the conduct and the alleged prohibited reasons in ss 340, 346 and 348, there is no basis in the evidence for the Commissioner's assertion (Submissions at [76]) that "the mental attitudes of the Respondents ... were defiant and serious" (paraphrasing Charlesworth J in Director of the Fair Work Building Inspectorate v Robinson [2016] FCA 525 at [79]). While the respondents may have been pursuing certain pay and safety issues, there is also evidence that officials sought to confer with senior employees of John Holland on multiple occasions in an attempt to resolve those issues. Furthermore, the respondents had ample motivation to act on behalf of employees at the site in view of the long-running issues with health and safety. Mr Chaseling gives evidence that a crane hook on Tower Crane 3 released its load on 18 September 2012, and that Mr McCann raised concerns with the facilities provided to employees on 25 January 2013.

Whether the breaches were distinct 74 The Commissioner submits that each contravention occurred on separate days and involved distinct unlawful acts with unlawful intent.

Whether any respondent has exhibited contrition 75 The Commissioner submits that there has been no contrition exhibited by any respondent.

Whether a respondent has taken any corrective action 76 The Commissioner submits that: There is no evidence that the respondents have taken any corrective action to mitigate against the effects of the unlawful conduct. Some, but very little weight might be given to the CFMEU's payment of $525,000 to John Holland following the making of an agreement between them in relation to the settlement of the John Holland proceeding. It was an agreement which related to that proceeding only and it principally secured a release from common law proceedings and claims for significant damages. The CFMEU made its agreement with John Holland for commercial or industrial purposes, acting in its own self-interest. Whatever interests drove the CFMEU to make the agreement, the Commissioner and consolidated revenue gained nothing from the settlement. The settlement agreement was made on the basis of denials and non-admission of liability. That being the case, the settlement agreement cannot stand as evidence of contrition. 77 While the Commissioner does not make any express submissions concerning this factor, the respondents contend that: There is evidence that the respondents have taken significant corrective action in relation to the events the subject of these proceedings. As is discussed above, the CFMEU has paid a settlement sum to John Holland. It is irrelevant for the Commissioner to observe that "the Director and consolidated revenue gained nothing from the settlement" ([82] of the Commissioner's submissions). The attainment of a benefit for the Commissioner, or the public revenue more generally, is not relevant to a consideration of "corrective action". Further, the terms of settlement of the John Holland proceedings include a consent injunction which applies against each of the respondents in the Commissioner's proceedings (except Messrs Heathcote, Upton and Noonan) until 31 December. It is submitted that the injunction is evidence of co-operation, the parties having entered into its terms by consent; and has contributed to the maintenance of industrial peace at the site since 18 July 2013. The respondents' compliance with the injunction has not attracted any complaint, despite the passage of eight months since it was consented to by the respondents to the John Holland proceeding.

Whether the respondents have co-operated with enforcement agencies 78 The Commissioner submits that: The respondents agreed to make admissions of liability in late October 2015. This avoided a lengthy trial. The admissions, however, only came at a time when the proceedings were otherwise programmed to a trial and only after the Commissioner had devoted very significant resources to the proceedings. That included the time and expense associated with preparing and filing all of his liability evidence (lengthy affidavits as referred to above). The respondents were fully appraised of the Commissioner's case to be presented at trial, and in the face of its strength, made the necessary and inevitable admissions in their amended defences. The truth of the asserted facts and alleged contraventions would have been obvious to the respondents from very early in the proceedings. Their admissions could have been made at a much earlier stage. The respondents predominantly acted in their own self-interest by making admissions and avoiding a long and expensive trial (in circumstances where the respondents would have to bear its own costs). Altruism and concern for the public purse ought not be inferred. The Court should reject any submission to the effect that the Court should, in this case, infer remorse or contrition, merely from the fact that admissions were made. 79 The respondents submit that: Contrary to the Commissioner's submissions, there is relevant and important evidence of co-operation, which is required to be taken into account in mitigation. The respondents have made admissions in their amended defences, admitted liability, agreed on the appropriate evidence to go before the Court, and consented to the making of declarations. That settlement avoided the parties incurring the considerable costs of a trial on liability, and saved the resources of the Court. The respondents submit that this is a matter relevant to the determination of penalty and is to their credit. There is no authority for the proposition (Commissioner's submissions at [87]) that the motivation for a party deciding to resolve a proceeding is relevant to this issue, whether self-interested or not. The courts have recognised that there is public interest in promoting the negotiated resolution of civil penalty proceedings: Commonwealth v Director Fair Work Building Industry Inspectorate (2015) 326 ALR 476 (French CJ, Kiefel, Bell, Nettle and Gaudron JJ) at [28]; [2015] HCA 46. The public interest, and the efficient administration of justice, are served by the resolution of disputes and the avoidance of lengthy trials. Proper regard to this factor does not call for an inquiry into the motive of the respondent. The avoidance of the need for a trial is regarded (in and of itself) as of benefit to the public and the administration of justice. The Commissioner submits (at [85]) that the Court should have regard to the fact that settlement was achieved at a late stage and after the Commissioner had filed his liability evidence. That contention ought to be rejected. The respondents entered into an agreement with the Commissioner, and filed substituted defences, at the earliest time after the Commissioner had amended his claim and abandoned substantial allegations. The original pleadings made a variety of alternative allegations. The filing of the affidavit material allowed the respondents to properly understand the allegations being pressed by the Commissioner. In light of the above, it is submitted that each of the respondents ought to be afforded the traditional discount in recognition of co-operation, which avoids the need for a lengthy contested trial.

Size of the CFMEU and involvement of senior management 80 The Commissioner submits that: The CFMEU is a large, prominent and influential national union. There is no evidence of an incapacity to pay. Each contravention involved the attendance of senior union officials of the Western Australian branch and/or the national office of the CFMEU. It is submitted that by being present and lending support, senior union officials, the WA State Secretary (Mr Buchan), the WA Assistant State Secretary (Mr McDonald) and the National Secretary (Mr Noonan) no less, clearly provided endorsement to the unlawful action and gave it a misplaced legitimacy in the minds of the CFMEU's members. The Court should infer that these senior officials had the power and influence to prevent the unlawful conduct had they chosen to do so. Not only did they not disassociate themselves from it, they were its driving force. It is respectfully submitted that the presence of union leaders at the scene of industrial action are deserving of particularly severe sanction, even if they say little or remain silent and allow others to actively engage in unlawful conduct. Their mere presence serves to encourage and endorse conduct which, as senior industrial officials, they knew to be unlawful.

Previous contraventions of industrial legislation 81 The Commissioner makes the following submissions in respect of the CFMEU's and individual respondents' history of prior contraventions. 82 As to the CFMEU, the Contraventions Table (Annexure 3 to the Commissioner's submissions) discloses the CFMEU's extensive history of prior contraventions of industrial laws. This table lists 107 separate legal proceedings where the CFMEU was found to have contravened industrial legislation, or committed a civil or criminal contempt. 83 The Commissioner acknowledges that the CFMEU's record does not mean that a disproportionate penalty can or should be imposed. The extensive list of prior contraventions is relevant to the assessment of the level of penalty that is necessary for deterrence. Self-evidently, the penalties imposed in the past have not caused the CFMEU or its officials to comply with the FW Act, the former Building and Construction Industry Improvement Act 2005 (Cth) or the former Workplace Relations Act 1996 (Cth). 84 The Commissioner emphasises that in Cartledge, at [93], Mansfield J observed: "I consider that the CFMEU's record of contraventions ... demonstrates that a particularly persuasive form of deterrence against similar misconduct in the future is appropriate". The Court imposed a penalty of $30,000 against the CFMEU for its officials' two contraventions of the FW Act on 19 March 2014 and $100,000 for five contraventions of s 500 on 20 March 2014. 85 More recently, the Commissioner notes, Flick J in Bragdon, referred to the observations of White J in Stephenson, when he stated, at [77]: Of particular relevance presently is that before 1 March 2014, the CFMEU and/or its employees have been dealt with for contraventions of right of entry provisions on 13 occasions, involving some 40 separate contraventions. In addition, since the subject contraventions, Mansfield J in Director of the Fair Work Building Inspectorate v Cartledge [2014] FCA 1047 (delivered on 2 October 2014), imposed penalties on the CFMEU and its employees in respect of seven different contraventions of s 500 of the FW Act committed on 19 and 20 March 2014. The record indicates an attitude of indifference by the CFMEU to compliance with the requirements of the legislation regarding the exercise of rights of entry. It also indicates that deterrence must be a prominent consideration in the fixing of penalties in the present cases 86 In Bragdon, the Court imposed a penalty of $225,000 against the CFMEU for two contraventions of s 497 of the FW Act, five contraventions of s 500 and four contraventions of s 503. This case was subsequently overturned on liability. 87 Although the judicial observations referred to above were in connection with right of entry cases, the Commissioner submits that these observations are nevertheless apposite for these cases. 88 The Commissioner also refers to Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No.2) [2015] FCA 407, at [106]-[107], where Tracey J made the following observations: The circumstances of these cases were not identical to those in the present case. They, nonetheless, bespeak a deplorable attitude, on the part of the CFMEU, to its legal obligations and the statutory processes which govern relations between unions and employers in this country. This ongoing willingness to engage in contravening conduct must weigh heavily when the need for both specific and general deterrence is brought to account. The CFMEU is not to be punished again for its earlier misconduct. It is, however, to be punished more severely than it would have been had it had no adverse record or been responsible for only a few isolated incidents over a period of many years. Its continued willingness to engage in contravening conduct supports the view that earlier penalties, some of them severe, have not had a deterrent effect: cf Veen v R (No 2) (1988) 164 CLR465 at 477-8. 89 More recently, Tracey J observed in Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 at [63] that: The longer such recidivism continues the more likely it is that this consideration will carry greater weight than the principle that the maximum available penalty must be reserved for the worst possible offending. 90 In Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1173 at [29], Jessup J, when referring to the prior contraventions of the CFMEU and its officials, also observed: The pattern of contravention which emerges from material such as this has been the subject of comment by the court on a number of occasions. The schedule paints, one would have to say, a depressing picture. But it is more than that. I am bound to say that the conduct referred to in the schedule bespeaks an organisational culture in which contraventions of the law have become normalised. 91 As to the individual respondents, the following is noted by the Commissioner. Mr McDonald has, in seventeen separate proceedings, been found to have contravened industrial legislation or committed a contempt. 92 There have been four past proceedings where Mr Buchan has been found to have contravened industrial legislation, but one of these found contraventions post-dates the contraventions in these proceedings. 93 Mr Upton has been found in one previous proceeding to have contravened industrial legislation. 94 Mr Harris has been found in one previous proceeding to have contravened industrial legislation, but this found contravention post -dated the contravening conduct in these proceedings. 95 There are no known prior contraventions against any other individual respondent involved in these three proceedings. 96 There is no evidence which should give credit to the CFMEU for those of its officials who are first-time contraveners. There is no evidence of any attempts by the union to exercise sufficient control over them in the past or that their contraventions are an aberration occurring against a background of a culture of compliance. There is no evidence that the CFMEU has since expressed disapproval of their conduct, or that CFMEU is genuinely concerned to prevent subsequent contraventions by them. 97 The respondents say the priors alleged by the Commissioner are not contested, but submit that while similar prior relevant conduct may be taken into account in assessing penalty, it ought not be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant contravention: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 (Mason CJ, Brennan, Dawson and Toohey JJ); [1998] HCA 14. 98 A respondent is not to be punished again for the prior conduct. Prior conduct may diminish leniency by reason of good character, having an upward effect on penalty, albeit within the proper limits indicated by the circumstances of the immediately contravening conduct: The Queen v Mcinerney (1986) 42 SASR 111 at 113 (King CJ). 99 Conduct of a different character does not assist: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 at [67]; [2006] WASC 317; Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61 at [44]; [2008] FCA 1426.

The need for specific and general deterrence 100 The Commissioner makes the following submissions: The penalty must reflect the need for specific (or "personal") and general deterrence. In Ponzio at [93], Marshall J observed: The penalty must recognise the need for deterrence, both personal and general. In regard to personal deterrence, an assessment must be made of the risk of re-offending. In regard to general deterrence, it is assumed that an appropriate penalty will act as deterrent to others who might be likely to offend: .... The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by likeminded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. 101 More recently, in Commonwealth v Director, Fair Work Building Industry Inspectorate (2016) 326 ALR 476, [2015] HCA 46, the majority (French CJ, Kiefel, Bell, Nettle and Gordon JJ) said at [55]: 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. 102 Although the High Court was there referring to the purpose of civil penalties generally, the case before it concerned the imposition of civil penalties for unlawful industrial action in contravention of the Building and Construction Industry Improvement Act 2005 (Cth), which establishes a regime with substantially the same objectives as those of the FW Act. 103 To achieve the purpose of general deterrence, the penalty must be sufficiently high that it sends the message to others that this sort of conduct is unacceptable and will be met with serious consequences. 104 Penalties fixed for a deterrent purpose are intended to have an attitudinal effect: dissuasion. It is for this reason that an assessment of the seriousness of the conduct of the respondents should place appropriate emphasis on the mental attitudes accompanying their physical acts. 105 In this case, there is a strong need for specific deterrence in relation to both the CFMEU and Mr McDonald, given their history of prior contraventions. 106 The history of repeated disregard for industrial laws by the CFMEU and Mr McDonald indicates that previous penalties have proven ineffective to deter further unlawful conduct. 107 There is also a strong case for specific deterrence in relation to Mr Noonan who, as National Secretary of the CFMEU, occupies a position of leadership over a union which has engaged in a pattern of conduct where noncompliance with industrial laws has become normalised. It is proper to infer that Mr Noonan, as one of the union's most senior national officials, is aware of previous penalties and declarations made by the courts in relation to contravening conduct and the judicial condemnation of such lawless conduct. Mr Noonan has not only shown reckless disregard for the efforts of the courts to instil compliance, but he has himself, with full knowledge of the law, engaged in a deliberate contravention. 108 There is also a strong case for specific deterrence in relation to Mr Buchan given the impact and severity of his conduct, and by reason of him occupying a very senior role in the CFMEU. Like Mr Noonan, Mr Buchan's behaviour also shows a disregard for previous penalties and declarations for similar unlawful conduct. 109 The penalty range suggested by the Commissioner for the CFMEU reflects this need for deterrence. As Jessup J observed in the recent decision of Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462, at [8], when commenting on the union's record of contravention: the court is not using the present occasion to supplement the penalties imposed for different conduct on previous occasions. Rather, the court is giving appropriate recognition to what is, on any view, an important purpose of the regime of penalties for which the legislation provides: deterrence. Of all purposes, that is the most strongly linked to the public interest is compliance with the law. If contravention of a law is visited with penal outcomes which are demonstrably inadequate to achieve the purpose of the law, it might as well not be a law at all. It is in this sense, in my view, that the principle of proportionality is amply reflected in the imposition of a penalty which takes due account of the importance of specific deterrence. 110 The respondents make the following submissions about general and specific deterrence: Only the minimum penalty which achieves punishment and deterrence, both personal and general, will be appropriate. While past conduct is relevant for the purposes of assessing the appropriateness of a penalty in achieving specific deterrence, it must be balanced against the principle of proportionality. The principle of proportionality acts as an ultimate control on the judicial sentencing discretion, such that the penalty imposed must be proportionate to the gravity of the offence committed. As Siopis J commented in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 616 at [74]: In many instances, the past conduct of the CFMEU and, in particular, Mr McDonald, would require the Court to impose a heavy penalty to reflect the requirement for deterrence. However, the principle of proportionality requires that the circumstances of each case must be viewed separately to ensure that past history of the offender does not result in an imposition of a penalty which is disproportionate to the gravity of the offence concerned. The respondents' adherence to the injunctions issued in the John Holland proceeding tends to demonstrate that specific deterrence is not a significant consideration in fixing the penalties in the Commissioner's proceedings. 111 It should be noted in passing that since these submissions were made, the decision of Siopis J at [2016] FCA 616 has been the subject of an appeal, which was allowed, by the Full Court. See Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 (Dowsett and Rares JJ; North J dissenting).

Submissions on appropriate penalties 112 Penalties against the CFMEU, the Commissioner submits the following penalties are appropriate: In WAD16/2014: three penalties in the range of $35,000 to $45,000 each for contraventions of s 340 of the FW Act on 25 January 2013 by reason of the conduct of Messrs Upton, Heathcote, Harris and McCann; the conduct of Mr McDonald; and the conduct of Mr Buchan, with a reduction of 10% being appropriate, in that the CFMEU is being penalised for related contraventions. One penalty in the range of $30,000 to $40,000 for a contravention of s 340 of the FW Act by reason of the conduct of Mr Harris on 30 January 2013. In WAD95/2014: two penalties in the range of $35,000 to $45,000 each for a contravention of s 340 of the FW Act by reason of the conduct of Mr McDonald and the conduct of Mr Buchan, with a reduction of 10% being appropriate, in that the CFMEU is being penalised for related contraventions. In WAD135/2014: four penalties in the range of $35,000 to $45,000 each for contraventions of s 340 of the FW Act by reason of the conduct of Mr Noonan; the conduct of Mr McDonald; the conduct of Mr Buchan; and the conduct of Mr Harris, with a reduction of 10% being appropriate, in that the CFMEU is being penalised for related contraventions. 113 The respondents observe that, having regard to the submissions made by the Commissioner, the Court is urged to impose penalties in the case of each contravention in the range of $35,000 to $45,000, producing an aggregate penalty for all the contravening conduct of between $345,000 and $445,000. This would result in the imposition of a penalty at somewhere in the range of 69% to 88%, in most cases, of the maximum penalty available. 114 The respondents submit that the appropriate penalties for the CFMEU should instead be considered as follows: In WAD16/2014: three penalties in the amounts of $15,000 (in relation to the conduct on 25 January 2013), being an aggregate of $45,000, discounted by 33% for course of conduct = $30,150, or, in the alternative, discount the second and third penalties by 33%, coming to a discounted total of $35,100; and one penalty in the amount of $20,000 (in relation to the conduct on 30 January 2013), being an aggregate penalty of $50,150 (or $55,100). In WAD95/2014: two penalties in the amount of $20,000, aggregate of $40,000, discounted by 50% for course of conduct = $20,000. In the alternative, discount the second penalty by 50% for course of conduct = $30,000. In WAD135/2014: four penalties in the amount of $18,000, aggregate of $72,000, discounted by 25% for course of conduct, being $54,000. In the alternative, discount only the second and subsequent penalties by 25% for course of conduct, being $18,000, plus 3 x $13,500 = $58,500. 115 They say this approach would result in an aggregate penalty of $124,150 (or alternatively $143,600). It is submitted that this aggregate penalty is required to be further discounted in light of the prohibition on double punishment, which arises by reason of the settlement of the John Holland proceeding. This calls for a further discount of 25%, reducing the total penalty to be imposed on the CFMEU to $93,113 (or alternatively $107,700). 116 Penalties against the individual respondents: the Commissioner submits that the appropriate penalties to be imposed on individual respondents should be as follows: Mr Upton, a penalty in the range of $6,000 to $8,000. Mr Heathcote, a penalty in the range of $6,000 to 8,000. Mr Harris, a penalty in the range of $6,000 to 8,000 for adverse action taken in WAD16/2014 on 25 January 2013; a penalty in the range of $7,000 to $8,000 for adverse action taken in WAD16/2014 on 30 January 2013; and a penalty in the range of $6,000 to 8,000 for adverse action taken in WAD135/2014. Mr McDonald, a penalty in the range of $8,000 to $8,750 for adverse action taken in WAD16/2014; a penalty in the range of $8,000 to $8,750 for adverse action taken in WAD95/2014; and a penalty in the range of $8,000 to $8,750 for adverse action taken in WAD135/2014. Mr McCann, a penalty in the range of $3,000 to $5,000 for adverse action taken in WAD16/2014. Mr Buchan, a penalty in the range of a penalty in the range of $6,000 to 8,000 for adverse action taken in WAD16/2014; a penalty in the range of $6,000 to $8,000 for adverse action taken in WAD95/2014; and a penalty in the range of $6,000 to 8,000 for adverse action taken in WAD135/2014. Mr Noonan, a penalty in the range of $6,000 to $8,000. 117 In setting penalties, the respondents submit that conduct of the individual respondents should be characterised in the following way and that the following penalties should be imposed on them: 118 Mr Upton: Mr Upton's conduct amounted to discouraging access to the site prior to the employees' rostered start times. Mr Upton was an organiser employed by the CFMEU. Mr Upton has one prior contravention of s 500 of the FW Act in relation to right of entry. That prior contravention concerns a subject matter quite unlike the subject matter of WAD 16 of 2013. There were no aggravating factors particular to Mr Upton. 119 Accordingly, it is submitted that the range proposed by the Commissioner ($6,000-$8,000) is too high, and that a penalty of $2,000 for the contravention of s 340 on 25 January 2013 is appropriate. 120 Mr Heathcote: Mr Heathcote has admitted to standing in front of the gate to the site in a manner designed to discourage employees from entering the site from about 7.10am to about 8.15am on 25 January 2013. 121 Mr Heathcote was an organiser employed by the CFMEU. He has no prior contraventions. There were no aggravating factors particular to Mr Heathcote. Accordingly, it is submitted that the Commissioner's proposed range ($6,000-$8000) is too high. Rather, a penalty of $1,500 for the contravention on 25 January 2013 is more appropriate. 122 Mr Harris: In WAD16/2014, Mr Harris has admitted to standing in front of the gate to the site in a manner designed to discourage employees from entering the site: from about 5.30am to about 6.20am (prior to the employees' rostered start times), and from about 7.10am to about 8.15am, on 25 January 2013; and from about 6.00am to about 6.45am on 30 January 2013 (in circumstances where the employees' rostered start time was 6.30am). 123 In WAD 135 of 2014, Mr Harris has admitted to being present at the site and amongst the crowd that blocked access to the site through the slip lane, preventing some concrete trucks from entering the site. 124 Mr Harris was an organiser employed by the CFMEU. Mr Harris has only one prior contravention. It is of note that Mr Harris is both a common respondent (who has co-operated by adhering to the terms of the consent injunction) and is no longer employed by the CFMEU. This tends to suggest that specific deterrence has no more than a minimal role to play in any penalty to be imposed on him. Accordingly, it is submitted that the appropriate penalties would be: $2,000 for conduct on 25 January 2013 and $1,500 for conduct on 30 January in WAD16/2013; and $4,000 in WAD135/2013 are in the appropriate range. This would give an aggregate penalty of $7,500. 125 Mr McDonald: At the relevant times, Mr McDonald was the Assistant State Secretary of the CFMEU in Western Australia. It is accepted that specific deterrence is a consideration to which the Court must have regard in fixing an appropriate penalty for Mr McDonald, though his record of prior contraventions cannot be used to fix a penalty that is not proportionate to the contravening conduct. Further, it is noted that he is a common respondent who has complied with the terms of the consent injunction entered into as part of the settlement of the John Holland proceeding, and thus has evidenced co-operation. 126 Accordingly, it is submitted that while the range proposed by the Commissioner (namely $8,000-$8,750) is too high when regard is had to the maximum penalty for each contravention, three penalties of: $5,500 for the contravention of s 340 on 25 January 2013; $5,500 for the contravention of s 348 on 3 May 2013; and $7,000 for the contravention of s 346 on 18 July 2013; are in the appropriate range. This would give rise to an aggregate penalty of $18,000. 127 Mr McCann: In WAD16/2014, Mr McCann has admitted to addressing a meeting next to the site on 25 January 2013. At the time, Mr McCann was an occupational health and safety officer employed by the CFMEU. He has no record of prior contraventions. It is submitted that the Commissioner's submission on range ($3,000-$5,000) is too high in light of the nature of Mr McCann's admitted involvement, his lack of priors and his status as a common respondent who has adhered to the terms of the injunction in favour of John Holland. It is submitted the appropriate aggregate penalty is no more than $1,000. 128 Mr Buchan: In WAD16/2014, on 25 January 2013, Mr Buchan has admitted to being present at the site while a meeting was conducted at about 6.20am, lawfully requesting a meeting with John Holland at about 6.55am, and addressing a meeting at about 7.00am, at which time he encouraged the employees "to stay united and not divided". 129 In WAD95/2014, on 3 May 2013, Mr Buchan has admitted to being present at the site at the time of the events, and to instructing protestors outside the entrance to the site to allow Ms Scaffardi to enter the site. Mr Buchan has also admitted to conducting a meeting at about 10.30am at which he told the crowd that the subcontractors had moved on for the day and that the protestors should return the next day. Mr Buchan has also admitted to lawful conduct in communicating the Equal Pay Request through the media in the days leading up to 3 May 2013. 130 In WAD135/2014, on 18 July 2013, Mr Buchan has admitted to being present at the site at the time of the relevant events, and to addressing meetings at about 7.05am and about 9.30am. Mr Buchan has also admitted to lawful conduct in communicating the Equal Pay Request through the media prior to 18 July 2013. 131 At the relevant times, Mr Buchan was the State Secretary of the CFMEU in Western Australia. He has 7 prior contraventions. 132 It is accepted that in the circumstances, specific deterrence is a consideration to which the Court must have some regard in fixing an appropriate penalty for Mr Buchan, though his record of prior contraventions is lower than Mr McDonald's and cannot be used to fix a penalty that is not proportionate to the contravening conduct. Further, as a common respondent, Mr Buchan has co-operated by his compliance with the consent injunction in favour of John Holland. 133 Accordingly, it is submitted that three penalties of: $3,000 for the contravention of s 340 on 25 January 2013; $3,000 for the contravention of s 348 on 3 May 2013; $4,500 for the contravention of s 346 on 18 July 2013; are appropriate, and that the Commissioner's proposed range (of $6,000-$8,000 per contravention) is excessive in all the circumstances. Accordingly, it is submitted that the appropriate aggregate penalty in relation to Mr Buchan in the circumstances is $10,500.00. 134 Mr Noonan: Mr Noonan's involvement in the protest the subject of WAD135/2014 was limited to twice addressing meetings of employees. Mr Noonan did not himself block access points to the site, nor did he direct anyone to block access to the site. 135 Mr Noonan spoke to a group of workers on the western side of the site on Hospital Avenue at about 7.10am, after addresses by others. Notably, the workers he addressed were located on the other side of the site from the entrances required to be accessed for the concrete pour. 136 In addressing the group of workers, and after referring to John Holland's strategy of driving down wages and conditions and its poor safety record, Mr Noonan said that CFMEU members ought not be taken for granted, as they would not "back down". He called on John Holland to treat its workforce with decency and respect. He reminded those in attendance that they were not there to confront anyone; or argue and fight with the police. He urged CFMEU members to make a stand, but to do so peacefully, and to do so with "bravery, with respect and courageously". 137 There is no evidence that Mr Noonan was involved in any 'elaborate plan'. In particular, there is no evidence that Mr Noonan was aware of the planned concrete pour (which had been called off by about 7.50am). Nothing he said was directed to disrupting works at the site or preventing access to the site. There is no evidence that Mr Noonan himself blocked access points to the site, nor that he directed anyone to block access to the site. 138 Later, at about 9.30am, Mr Noonan addressed a group away from the site, over in the Oral Centre car park. There, the subject of his address concerned inconsistency in payment of penalty rates and the lack of response to this issue by the authorities. 139 The Commissioner's attack on Mr Noonan's position of seniority in the union is advanced on the basis of a misapprehension, and inferences which are not supported by any evidence. Mr Noonan is not (and was not then) the National Secretary of the CFMEU. He is (and was then) the Divisional Secretary of the Construction and General Division of the CFMEU. Mr Noonan does not, under the rules, occupy an office which is senior to any of the officers or members of the Western Australian Divisional Branch of the Construction and General Division of the union. He is not, by reason of his office alone, empowered to direct or command any of those persons in their conduct or in any other matter. The Divisional Secretary is an officer responsible to the Divisional Executive. The Divisional Branches operate under functional autonomy from bodies such as the Divisional Executive or the national organs of the CFMEU. 140 Mr Noonan has committed no prior contraventions. In all the circumstances, a penalty within the Commissioner's proposed range (of $6,000-$8,000) would be manifestly excessive. An appropriate penalty for Mr Noonan's contravention of s 346 on 18 July would be $1,000.

Payment of the penalties to the Commonwealth 141 The Commissioner submits all penalties should be paid to the Commonwealth, as provided for under the FW Act. 142 The Commissioner also submits that any penalty imposed against individual respondents should be paid by them personally and they should not be indemnified, directly or indirectly, by the CFMEU.

WAD16/2014 143 Proceeding WAD16/2014 concerns events that occurred on 25 and 30 January 2013 at the New Perth Children's Hospital project. The conduct involved on each day amounted to a blockade of the site, and strike action. 144 Each of the following respondents has admitted contraventions of s 340 of the FW Act on 25 January 2013: Mr Upton; Mr Heathcote; Mr Harris; Mr McDonald; Mr McCann; Mr Buchan; and the CFMEU (three contraventions). 145 Each of Messrs Upton, Heathcote, Harris, McDonald, McCann and Buchan has admitted that their conduct of standing at the entrance to the site and discouraging project employees from entering did in fact prevent and dissuade employees from entering the site that day and thereby prevented the employers from exercising a workplace right (within the meaning of s 341(1)(b) of the FW Act), namely, the right of the employers to participate in a safety dispute settlement procedure with the employees in accordance with an applicable workplace instrument or a workplace law. 146 The CFMEU has admitted three contraventions of s 340 of the FW Act on 25 January 2013 by reason of the conduct of its officials. 147 Each of the following has also admitted contraventions of s 340 of the FW Act on 30 January 2013: (1) Mr Harris; and (2) CFMEU. 148 Mr Harris has admitted that his conduct of standing at the entrance to the site and discouraging project employees from entering, including by attempted physical restraint, prevented and dissuaded employees from entering the site that day and thereby prevented the employers from exercising the workplace right mentioned above. 149 The CFMEU has admitted it contravened s 340 of the FW Act by reason of the conduct of its official, Mr Harris. 150 The parties have made submissions about the nature of the conduct, as set out above. I accept that on 25 January 2013, from about 5.30am to 6.20am, for just under an hour, Mr McDonald, Mr Harris and Mr Heathcote stood in front of the gate to the site on a footpath and directed employees to attend a safety meeting. 151 I also accept the respondents' submissions that from about 6.20am to 7.10am, Messrs McDonald, Buchan, McCann, Harris, Upton and Heathcote attended a meeting which was attended by approximately 100 employees and that safety issues were mentioned at the meeting. 152 I also accept that at about 6.55am, Mr Buchan, Mr McCann and Mr Heathcote approached Mr Chaseling and Mr Albonico to request a meeting with John Holland to discuss safety issues - conduct to which there is no challenge as to its lawfulness - and that Mr Chaseling and Mr Albonico refused to meet with them at that time. 153 I accept that at about 7am, Mr Buchan informed the employees that John Holland had refused to meet to discuss safety issues and that a motion was then put, as a result of which a significant percentage, perhaps 70% to 80%, of the employees voted to strike until the following Wednesday. 154 I also accept that from about 7.10am until about 8.15am, Mr Heathcote and Mr Harris stood in front of the front gate and that Mr McDonald stood near the front gate. Mr McDonald informed employees that they could not enter the site. 155 While the respondents make submissions about Mr Chaseling manufacturing a situation which an employee entered, or attempted to enter, the site through the front entrance and was told by Mr McDonald that he could not do so and that several employees entered the site through the front gate, I do not consider that either of those factual considerations bear in any relevant way on the assessment of the pecuniary penalty in this case. The blockade was obviously real and intended. 156 I accept, as submitted by the Commissioner, that the effect of the blockade and subsequent strike action was that between 109 and 136 employees did not work that day, either because they were prevented from entering the site or because they were dissuaded from doing so. 157 While the respondents say about 86 workers did not attend work at the site on 25 January 2013, I am inclined to accept the higher number contended for by the Commissioner. I should say, however, that whether it was 86 workers or 136 who did not attend for work that day, the penalty outcome should and would be the same. A significant number went on strike. 158 A few days later on 30 January 2013, Messrs McDonald, Buchan, McCann, Harris, Upton and Heathcote attended outside the site. By about 9.15am they were joined in the carpark by approximately 300 persons including 150 who were not employed at the site. 159 From about 5.45am to about 6.45am a group of individuals, including Mr Harris stood at the front on the front gate to the site and only three workers attempted to enter the site through the front gate and were unable to do so. 160 I also accept that for about 40 minutes from about 6.30am to about 7.10am, Messrs McDonald, Buchan, McCann, Harris, Upton and Heathcote attended a meeting at which safety issues at the site were discussed and that at about 6.50am Mr Buchan and Mr McCann approached Mr Chaseling and Mr Albonico and requested a meeting with John Holland. On this occasion, Mr Chaseling and Mr Albonico agreed to the meeting if the employees returned to work. 161 I accept that the employees were rostered to perform work starting at about 6.30am and, following the conclusion of the meeting at 7.10am, all entered the site and commenced work for the day - although some were about 40 or 45 minutes late to start work. 162 The respondents accept the submission made by the Commissioner that as a result of Mr Harris' conduct on that day work was delayed from commencing by 45 minutes. 163 I accept Mr Harris specifically physically occupied the entrance to prevent workers from being able to access the site that day. 164 I accept that on these occasions, there was a blockade and industrial action at the site. I infer that there was loss, even though it has not been quantified at a specific sum in the proceeding before me. The imputed loss was much more direct on 25 January 2013 when strike action followed the meeting. 165 There is no doubt that each of the contraventions alleged was deliberate. 166 It is also reasonable to say that, so far as the imposition of a pecuniary penalty on the CFMEU is concerned, the nature of the conduct of its most senior officials, Mr Buchan and Mr McDonald, should be taken into account and that it was, as the Commissioner characterises it, both defiant and serious. 167 While the CFMEU and individual respondents point to the fact that they had safety concerns and wanted John Holland as head contractor to speak with them, this is not a case, in my view, where it can be said that the nature of the deliberate contraventions should be viewed as anything but serious or to be minimised because of the CFMEU's expressed concerns. There were available agreed mechanisms for dealing with safety issues and they were ignored. 168 I accept that each of the contraventions alleged over these two days was distinct. 169 I also accept there is no question of contrition by any respondent in this case. That follows from the deliberate action they engaged in. 170 I also accept that there is no evidence of corrective action having been taken to mitigate the effects of the unlawful conduct. 171 In respect of this set of contraventions and later ones considered, so far as the evidence shows that the John Holland proceeding was settled by the payment by the CFMEU of $525,000 to John Holland, I do not consider that this settlement significantly bears on the assessment of pecuniary penalties on these days, or for that matter on any of the other days. It has the effect of ameliorating the "loss" factor to an extent, but does not ameliorate the circumstances in which the requirements of the FW Act were breached. I do not consider that in this proceeding, or in WAD95/2014 or WAD135/2014, that the aggregate penalties imposed on the CFMEU or other respondents should be further discounted by reason of the commercial settlement. In my view, there is no relevant element of "double punishment". 172 So far as the question of cooperation with enforcement agencies is concerned, on the one hand it might reasonably be said, as the Commissioner does, that while admissions of liability were made late in the piece to avoid a lengthy trial, there was otherwise no significant cooperation, but on the other hand it may also be said that, as often happens in proceedings of this kind, following consideration the respondents did admit the contraventions so that ultimately only the questions of penalty needed to be considered by the Court. I do not consider that there is evidence of that level of cooperation by the respondents that should lead to any substantial "discount" when it comes to the assessment of penalty. 173 There is no doubt in this case that the CFMEU is a large, prominent and influential national union. Each of the contraventions for which it has become liable involved the attendance of senior union officials of the Western Australian branch and/or the national office of the CFMEU. 174 I accept the submission made on behalf of the Commissioner that such persons as the WA State Secretary, Mr Buchan and the WA Assistant State Secretary, Mr McDonald, clearly provided endorsements to the unlawful action and gave it what might be called a misplaced legitimacy in the minds of the CFMEU members. I accept that these officers were driving forces in the events on these two days in question, as indeed they were in relation to other contraventions that I will deal with below. 175 In those circumstances, the penalty imposed must reflect the deliberate stratagem adopted by the individual respondents concerned, but more the particularly directed by the CFMEU itself. 176 This is a case where the prior extensive history of contraventions on the part of the CFMEU, in particular, and some of its key officials, must be regarded. 177 As has been pointed out by the Commissioner, Mr McDonald has been found to have contravened industrial legislation or to have committed a contempt in 17 separate proceedings. 178 Mr Buchan has been found to have contravened industrial legislation in four past proceedings, but I accept that one of those post-dates the contraventions in these proceedings and for that reason should be ignored. 179 Mr Upton has been found to have contravened industrial legislation in one previous proceeding. 180 Mr Harris has been found to have contravened industrial legislation in one previous proceeding, but again, that post-dated the period in question here and for that reason may relevantly be ignored. 181 None of the other individual respondents who admitted contraventions on 25 January 2013, have relevant prior conduct. 182 I note the submissions made on behalf of Mr Upton that his conduct amounted to discouraging access to the site on 25 January 2013. He was an organiser employed by the CFMEU. I also note that his prior contravention was in relation to a right of entry issue. Whether or not it should be considered "unlike" the current contravention, as is submitted on his behalf, is perhaps a moot point. 183 Mr Heathcote has admitted to standing in front of the gate in a manner designed to discourage employees for over an hour on 25 January 2013. He too was an organiser employed by the CFMEU. As noted he has no prior contraventions. 184 Mention has been made of Mr Harris, who has admitted discouraging entry to the site between about 5.30am and 6.20am on 25 January 2013, and then for about 45 minutes on 30 January 2013. He too was an organiser employed by the CFMEU. He has only one prior contravention. On his behalf it is said that Mr Harris is both a common respondent who has cooperated by adhering to the terms of the consent injunction earlier given in the John Holland proceeding, and also is no longer employed by the CFMEU. This, it is said, suggests that specific deterrence has no minimal role to play in any penalty to be imposed on him. 185 On behalf of Mr McDonald, it is noted that he was the Assistant State Secretary of the CFMEU at material times. It is accepted that specific deterrence is a consideration the Court must have regard to in fixing an appropriate penalty for him. It is submitted, however, that his record of prior contraventions cannot be used to fix a penalty that is disproportionate to the contravening conduct. It is also noted that he too is a common respondent who has complied with the terms of the consent injunction entered into as part of the settlement of the John Holland proceeding and so he has evidenced some cooperation. 186 In respect of Mr McCann, who admitted addressing the meeting next to the site on 25 January 2013, it is noted he was an occupational health and safety officer with no record of prior contraventions. He also, it is said, is a common respondent who has adhered to the terms of the consent injunction. 187 As to Mr Buchan, it is said on his behalf that he has admitted to being present at the site while the meeting was conducted at 6.20am on 25 January 2013, lawfully requesting a meeting with John Holland at about 6.55am and addressing a meeting at about 7am when he encouraged the employees to "stay united and not divided". 188 As noted below, Mr Buchan has also admitted to contravening behaviour in WAD 95/2014 and WAD 135/2014. He as the State Secretary of the CFMEU at all material times and has seven prior contraventions. On his behalf it is accepted that specific deterrence is a consideration that the Court will have regard to, though his record of prior contraventions is lower than that of Mr McDonald and should not be used to fix a penalty that is disproportionate to his contravening conduct. It is noted he has also cooperated by his compliance with the consent injunction. 189 In my view, in this case, a penalty that provides general deterrence to persons in the types of positions held by Messrs Upton, Heathcote, Harris and McCann on 25 January 2013 is a primary consideration in each of their cases, noting that each should be treated differently from Mr McDonald and Mr Buchan, who were senior officers of the CFMEU at material times and plainly influential in encouraging the contravening conduct in question. 190 I have noted the parties' penalty submissions above. 191 I would then impose the following pecuniary penalties. 192 As against the CFMEU: Three penalties of $27,500 each in relation to the contraventions of s 340 of the FW Act on 25 January 2013 by reason of the conduct of Messrs Upton, Heathcote, Harris and McCann; the conduct of Mr McDonald; and the conduct of Mr Buchan, with a reduction of 20% on the basis that the CFMEU is being penalised for related, course of conduct contraventions = aggregate penalty of $66,000. One penalty of $22,500 for contravention of s 340 of the FW Act by reason of the conduct of Mr Harris on 30 January 2013. 193 As against the individual respondents for 25 January 2013 contraventions: In respect of Mr Upton, a penalty of $3,500. In respect of Mr Heathcote, a penalty in the sum of $2,500. In the case of Mr Harris, a penalty in the sum of $3,500. In respect of Mr McDonald, a penalty in the sum of $6,500. In the case of Mr McCann, a penalty in the sum of $2,500. In the case of Mr Buchan, a penalty in the sum of $5,000. 194 In respect of Mr Harris, a penalty in the sum of $2,000 for adverse action taken on 30 January 2013. 195 I have reduced the second penalty in respect of Mr Harris to $2,000 taking into account the related penalty of $3,500 and the fact that I will also impose a penalty of $3,500 on Mr Harris in respect of the contravention recorded in WAD135/2014 and applying also the totality principle. The result in his case is that he will be liable to total penalties of $9,000 in respect of the various contraventions in which he was involved. 196 Mr McDonald will also be subject to additional penalties of $6,500 in WAD95/2014 and $7,500 in WAD135/2014, making a total of $20,500 in penalties, which I do not consider to be unjust taking into account the nature of the contraventions and his guiding role and his prior history of contraventions. 197 Mr Buchan will also be subject to additional penalties of $5,000 in WAD95/2014 and $6,000 in WAD135/2014, making a total of $16,000 in penalties, which I do not consider to be unjust in light of his influential role in the activities comprising the contraventions and his prior history.

WAD95/2014 198 Proceeding WAD95/2014 concerns a blockade and strike action on 3 May 2013. Each of the following respondents has admitted contraventions of s 348 of the FW Act: (1) Mr McDonald; (2) Mr Buchan; and (3) CFMEU(two contraventions). 199 Mr McDonald and Mr Buchan each have admitted that they widely communicated the so called "Equal Pay Request" and on 3 May 2013, along with other officials, organisers and members of the CFMEU, occupied entrances to the project site, prevented and dissuaded employees from entering the site and otherwise persuaded employees to engage in industrial action and not perform work. Mr McDonald and Mr Buchan each admit that they engaged in the conduct with the intention of depriving John Holland of its sub-contractor workforce and thereby coerce John Holland into complying with the Equal Pay Request. 200 The CFMEU has admitted that by reason of the conduct of Mr McDonald and Mr Buchan, it has committed two contraventions of s 348 of the FW Act. 201 The parties have made submissions about the nature of the conduct, as set out above, I accept that on 3 May 2013, as submitted by the respondents, from about 4.25am to about 11.15am a crowd met at the "Equal Pay Embassy" and that at about 5.30am Mr Buchan had a conversation with Ms Scaffardi, in which he voiced concerns about safety at the site and that at about 6.40am Mr McDonald raised issues about safety and pay conditions with the group standing outside the site. 202 I also accept that from about 5.06am up to about 10.30am a group of between 10 and 20 people stood in front of the main gate and directed people not to enter the site. During that period a larger group it seems of about 200 group stood near the main gate at the "Equal Pay Embassy", so called. 203 It is accepted all around that several workers were unable to gain access to the site. There is a question whether entry to the site could be obtained through an entrance on Hospital Avenue. 204 Notwithstanding that question, it is not in dispute that some 207 employees did not work on the site on this day. 205 It can be seen, from the account of the contraventions that occurred on 25 January 2013 and 30 January 2013, that this was a continuation of an earlier blockade. 206 On 25 January 2013 and 19 February 2013, the Fair Work Commission had issued orders to prevent industrial action occurring on the project site. I accept the submission made that those orders were clearly ignored as of this date and that the conduct on 3 May 2013 must be considered an aggravating factor in that the contravening conduct was organised by the CFMEU and the individual respondents who were officials of it. 207 There is no doubt, as submitted, that the conduct of the CFMEU, Mr McDonald and Mr Buchan was deliberate. It must be treated as serious. 208 In dealing with the contraventions in WAD16/2014 above, I have already dealt with the range of other factors that bear upon the setting of a pecuniary penalty in this case and, in particular, the need for specific and general deterrence to be taken into account in the case of Mr McDonald and Mr Buchan. 209 I have noted the parties' penalty submissions above. 210 I would therefore impose the following penalties. 211 As against the CFMEU: two penalties in the sum of $27,500 each for contravention of s 348 of the FW Act by reason of the conduct of Mr McDonald and the conduct of Mr Buchan, with a reduction of 20% on the basis that the CFMEU is being penalised for a related, course of conduct contravention = aggregate penalty of $44,000. 212 As against the individual respondents: In respect of Mr McDonald, a penalty in the sum of $6,500. In respect of Mr Buchan, a penalty in the sum of $5,000. 213 Higher penalties have been imposed on Mr McDonald and Mr Buchan, having regard to their senior and influential positions in relation to the contraventions in issue.

WAD135/2014 214 Proceeding WAD135/2014 concerns a blockade and strike action on 18 July 2013 which, among other things, caused the abandonment of a large concrete pour. The following respondents have admitted contraventions of s 346 of the FW Act: (1) Mr Noonan; (2) Mr McDonald; (3) Mr Buchan; (4) Mr Harris; and (5) CFMEU (four contraventions). 215 Each of Messrs Noonan, Buchan, McDonald and Harris has admitted that they organised industrial action which prevented a large concrete pour at the site on 18 July 2013. They admit they engaged in that industrial action because John Holland did not meet a "whole-of-site EBA demand" sought by the CFMEU. 216 Each of Messrs Noonan, Buchan, McDonald and Harris has also admitted they organised, incited, participated in and controlled a blockade and protest on 18 July 2013 which prevented the concrete pour and prevented project employees from attending for work. 217 The CFMEU has admitted that by reason of the conduct of Messrs Noonan, McDonald, Buchan and Harris, it committed four separate contraventions of s 346 of the FW Act. 218 I accept the submission made by the Commissioner that the conduct on 18 July 2013 was clearly the most serious of the contravening conduct the subject of these three proceedings. 219 I accept that the admitted facts in evidence disclose that the CFMEU and its officials engaged in an elaborate plan to arrange for a vast crowd of people to attend and blockade the site, with a crowd at one point reaching some 400 people. 220 It resulted in the prevention of a critical concrete pour which had been scheduled for that day at the project site. Some 45 truckloads of concrete and slurry had been planned for that day. Not only could the trucks not access the site, but relevant workers could not access the site to carry out the concrete pour and it had to be abandoned. 221 Additionally, some 205 employees did not turn up for work that day. 222 I accept, having regard to the respondents' submissions, that from about 5am to about 9.30am that day a group of five to 15 people stood in front of the Site Entrance E1, while others stood in front of the slip lane entrance to the site, and that over that same period a larger group which, at relevant times, was between about 40 and perhaps as many as 600 met nearby on a median strip and in a carpark. 223 I also accept that Mr Buchan, Mr McDonald and Mr Noonan addressed the crowd including in relation to the previously mentioned Equal Pay Request. They did so again from about 9.30am. The vote was put by Mr McDonald that the employees withdraw their labour for the day, which was passed, and at about 9.50am the crowd dispersed and while some attended for work that day, most did not. 224 While the respondents submit that there is no evidence to support a finding that the actions of the respondents were part of an "elaborate plan", there can be no doubt that the inference should be drawn that the very large meeting that day was calculated to disrupt the concrete pour and, at the very least, had that very significant effect. 225 I have noted the parties' penalty submissions above. 226 So far as Mr Noonan is concerned, I accept the respondents' submissions concerning his position and authority at material times, and that he has no history of prior contraventions. 227 I would then impose the following pecuniary penalties. 228 As against the CFMEU: Four penalties in the sum of $27,500 each for contraventions of s 346 of the FW Act, by reason of the conduct of Mr Noonan; the conduct of Mr McDonald; the conduct of Mr Buchan; and the conduct of Mr Harris, with a reduction of 20% in that the CFMEU is being penalised for related, course of conduct contraventions = aggregate penalty of $88,000. 229 As against the individual respondents: In respect of Mr Noonan, a penalty in the sum of $2,500. In respect of Mr McDonald, a penalty in the sum of $7,500. In respect of Mr Buchan, a penalty in the sum of $6,000. In respect of Mr Harris, a penalty in the sum of $3,500.

Orders 230 I will make the orders set out above in the orders pages. I certify that the preceding two hundred and thirty (230) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

SCHEDULE OF PARTIES WAD16 of 2014 Respondents Fourth Respondent: STEVEN MCCANN Fifth Respondent: TAWA HARRIS Sixth Respondent: BRADLEY UPTON Seventh Respondent: PATRICK HEATHCOTE

Respondents WAD135 of 2014 Fourth Respondent: MICHAEL BUCHAN Fifth Respondent: TAWA HARRIS

Building and Construction Industry Improvement Act 2005(Cth)

Workplace Relations Act 1996(Cth)

Fair Work Act 2009(Cth)ss 340, 341(1)(b), 346, 348, 500, 503, 539(2), 546, 546(2)(b), 793

Crimes Act 1914(Cth)s 4AA(1)

At a glance

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Judgment (49 paragraphs)

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Legislation Cited (5)

Cases Cited (36)