The nature and extent of the contraventions and the circumstances in which they took place
116 The ABCC submitted that the contraventions involved actions taken for prohibited purposes at major work sites in the Newcastle area. The actions of the respondents were deliberate, coordinated, for clearly prohibited purposes, and completely brazen. It submitted that in assessing each person's culpability in respect of the contraventions, the Court should have regard to all of the contextual facts set out above.
117 It submitted that the critical background fact is that Wheeler Cranes was the object of all the contraventions. At the relevant time, Wheeler Cranes was involved in negotiations with its workforce for the making of a new EBA. The CFMMEU had become involved in those negotiations by virtue of it becoming, through its official, Mr Holl, a representative of some but not all of the employees of Wheeler Cranes. Those enterprise negotiations had reached an impasse.
118 The other background fact the ABCC contended was relevant was that Boom Logistics was also in dispute with its employees who were engaged in protected industrial action authorised by the FW Act. As a result, Boom Logistics was unable, during October 2018, to provide mobile crane services to PWCS. This resulted in PWCS engaging Wheeler Cranes and Borgers to provide mobile crane services. The ABCC submitted that there was a preference from those within the CFMMEU, particularly Mr Holl and Mr Hobson, that Borgers, in the absence of Boom Logistics, supply mobile crane services to PWCS.
119 The ABCC submitted that on each of the days at each of the sites, the conduct of Mr Holl and Mr Hobson had two elements. First, there were demands made by the officials for the removal of Wheeler Cranes' mobile cranes from the relevant sites or that they cease in operation. Second, there was a defiant refusal to obey any reasonable command made by occupiers and others to leave until Wheeler Cranes' mobile cranes were either removed from the relevant site or ceased operating.
120 It was submitted that it can be inferred that the conduct was premeditated and deliberate. It was targeted and its object was to secure one of a number of different results. The first was to apply pressure to prevent Wheeler Cranes from being engaged by PWCS. Second, it can be inferred that it was done to further the CFMMEU's interests in the enterprise bargaining with Wheeler Cranes. A third purpose was to further the CFMMEU's interests in whatever dispute was occurring with Boom Logistics. Fourth, a purpose appeared to be to secure a result where the preferred mobile crane supplier, Borgers, was engaged. Fifth, a purpose was to lend, by unlawful means, support to the lawful industrial action that Boom Logistics' employees, at least at one or other sites, had been taking.
121 The ABCC submitted that in particular, in relation to the contraventions of s 355(b) of the FW Act, the conduct of Mr Holl, Mr Hobson and the CFMMEU was clearly intended to exert coercive pressure against third parties which was ultimately directed at Wheeler Cranes. This pressure was exerted through the overt and covert industrial muscle of the CFMMEU, so that Wheeler Cranes would give in to the CFMMEU's demands in respect of the EBA. In relation to the contraventions of s 52(b) of the BCIIP Act, the same purpose was at play, through different conduct at a different site. It submitted that in relation to the contraventions of s 500 of the FW Act, the conduct of Mr Holl, Mr Hobson and the CFMMEU involved the misuse of the powers of Mr Holl as a WHS permit holder so as to intentionally hinder and obstruct the performance of work at the various sites, and Mr Hobson aided and abetted Mr Holl's misuse of such power.
122 The ABCC addressed the statutory purpose of each of ss 355(b) and 500 of the FW Act, and s 52 of the BCIIP Act (the contravention provisions).
123 The ABCC made submissions on the respondents' reliance on safety issues as a justification for the conduct.
124 The ABCC point out that Mr Holl and the CFFMEU have admitted to conduct undertaken with an intent to coerce. Therefore, the demand or insistence that the Wheeler Cranes' crane not enter the particular sites and the crane be removed from those sites, is done, at least, for a substantial and operative purpose within the meaning of the operation of the provisions, with an intent to coerce. Mr Holl and Mr Hobson might have had some safety concerns relating to the crane, but that is not the substantial and operative purpose that has been admitted. The ABCC took the Court to specific examples in the SOAF. For example, at the San Clemente Site, it was agreed that the following occurred:
Despite the safety issues identified by Holl or Hobson being rectified, Holl and Hobson continued to demand that the Wheeler Cranes crane be removed from the site. Holl said to Freeman words to the effect "No you need to pack up the crane and remove it from the site. We are not leaving until the crane is gone."
125 Mr Holl and Mr Hobson submitted that the factual basis and seriousness of the contravention, as contended by the ABCC for the penalties sought, is overstated.
126 The personal respondents submitted that the focus should be on the admitted contraventions, and contended in their written submissions that for example, they do not admit the conduct of the protestors. That said, the respondents acknowledged in oral submissions that those matters are part of the agreed facts, and were part of the factual circumstances in which the contraventions occurred.
127 The respondents submitted that there were safety concerns in respect to the cranes. The officials, on the basis of the SOAF, had reasonable suspicions in relation to breaches of the WHS Act. While it is true that their behaviour contravenes the FW Act and BCIIP Act, it was submitted that, contrary to the ABCC's submission, it could not properly be characterised as at the high end or even towards the high end of the range of seriousness.
128 In respect to Mr Hobson, the submissions emphasised that his liability was accessorial.
129 In respect to the CFMMEU, it supported the submission of Mr Holl and Mr Hobson as to the contraventions. It was submitted that each instance of contravening conduct had the same purpose. It exhibited a strategy of preventing persons doing the work that would normally have been done by the workers who were taking lawful protected industrial action. The conduct was motivated by a wish to prevent persons undermining the legally protected industrial action by doing the work that would normally have been done by the employees who were taking that action.
130 It was also submitted by each of the respondents that the loss to Wheeler Cranes was minimal, referring to the Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155 at [20] as support for the proposition that loss or damage is a matter to be taken into account in assessing penalties.
131 In that context I address the conduct.
132 Although initially the respondents attempted to confine the factual matters which were said to be relevant to the imposition of the penalty, as noted above, at the hearing they accepted that they were not challenging the SOAF which contained the factual matters initially challenged. It was accepted by the respondents, as it must be, that it is well settled that in the imposition of a civil penalty, an evaluation is required not only of the "nature and extent of the contravention", but also of the "circumstances in which the contravention took place": TPC v CSR at 52,152; Kelly at [14]; Rojas (No 2) at [64]-[65]; The Non-Indemnification Personal Payment Case at [20]. It accepted therefore, that a number of matters challenged in writing were relevant to the circumstances in which the contraventions occurred. That said, even after the respondents' concession, their submission as to how one considers the circumstances in which the conduct occurred in the imposition of a penalty, was artificial. There is no doubt that the respondents are to have the penalties imposed for the admitted contraventions, but the relevant circumstances in which the contraventions occurred can assist in assessing the seriousness of the contraventions.
133 I accept the characterisation of the conduct by the ABCC. The conduct was deliberate, premeditated, coordinated, and for clearly prohibited purposes. The purpose of the conduct, which was aimed at Wheeler Cranes, appears to have at its heart the impasse that had arisen in the negotiations of the EBA. In respect to the s 355(b) and s 52(b) contraventions, it was clearly intended to exert coercive pressure against third parties which was ultimately directed at Wheeler Cranes, through the overt and covert industrial muscle of the union, to get Wheeler Cranes to give in to the CFMMEU's demands in respect of the EBA. A number of other purposes, as outlined above by the ABCC, can also be inferred.
134 In relation to the contraventions of s 500 of the FW Act, the conduct of Mr Holl, Mr Hobson and the CFMMEU involved the misuse of the powers of Mr Holl as a permit holder so as to intentionally hinder and obstruct the performance of work at the various sites, and Mr Hobson aided and abetted Mr Holl's misuse of such power.
135 Mr Holl, Mr Hobson and the CFMMEU have deliberately flouted the law in taking coercive action to secure a desired result by that unlawful means. Their conduct impacted upon third parties (PWCS and 3 Cross) and was undertaken with an intention to coerce them and put pressure on Wheeler Cranes.
136 In so far as one of the purposes of their actions was to secure a result where the preferred mobile crane supplier, Borgers, was engaged, that result in fact ensued. On 22 October 2018, Mr Sears, an officer of PWCS, advised Mr Wheeler that they would engage Borgers to provide crane services to PWCS for the immediate future. This was in the face of two days of actions, which it can be inferred, resulted in disruption to PWCS' ability to conduct its work.
137 I note also in this regard, that for example, in respect to the acts on 22 October 2018, it can be inferred that at least Mr Holl and the CFMMEU were able to influence the protestors.
138 I appreciate that Mr Hobson's liability is accessorial, however such involvement is treated the same way as a direct contravention: s 550 of the FW Act. Although not the principal protagonist, Mr Hobson lent support to Mr Holl's conduct. There are also three contraventions for Mr Hobson, whereas Mr Holl faces five contraventions. The three contraventions relate to conduct on 19 and 22 October 2018, and do not involve the incidents at the KCT on 18 October 2018. These matters necessarily impact on the ultimate penalty imposed.
139 In so far as the respondents' submissions may appear to suggest some lesser or more confined purpose than that advocated by the ABCC, it is not accepted.
140 In so far as the respondents submit that the SOAF reflect that the respondents had reasonable suspicions in relation to breaches of the WHS Act, I note that the SOAF does have two passages in relation to that topic. However, as illustrated by the ABCC in its submission, a proper reading of the SOAF does not support the general assertion. For example, as to the one passage referred to by the respondents where it was said they had a reasonable suspicion, the SOAF reflects that the identified safety issues were rectified, but nonetheless the respondents insisted the crane be removed from the site (without any apparent explanation). That said, most importantly, by their admissions the respondents have accepted that the substantial and operative purpose for their conduct was an intent to coerce. This is in a context where the conduct was part of a deliberate and premeditated strategy carried out by the CFMMEU and its officials. It follows that the submission that the respondents had reasonable suspicions in relation to supposed safety concerns (if such a suspicion existed), does not mitigate the seriousness of their conduct.
141 In that context also, as the ABCC correctly contended, Mr Holl and Mr Hobson engaged in conduct that:
(1) involved non-compliance with s 119 of the WHS Act by not giving notice of entry and the suspected contravention to the occupiers and Wheeler Cranes, as soon as was reasonably practicable after entering the workplace, in accordance with cl 28 of the Work Health and Safety Regulation 2017 (NSW) and setting out the particulars of the suspected contravention. The failure to give proper notice gives rise to an inference that they had no reasonable basis for suspecting a contravention of the WHS Act before entry;
(2) to the extent that particulars of suspected contraventions were provided, they did not provide such particulars in writing as soon as practicable after entry but did so only after inquiries had taken place following entry which appeared to match matters identified during inquires and were not contraventions reasonably suspected by Mr Holl and Mr Hobson before entry;
(3) caused significant disturbances whilst on site including stopping workers performing work on the cranes; and
(4) demanded, without any power to do so, that Wheelers Cranes' cranes be removed from the site irrespective of the nature of the identified safety issue or that the issue had been resolved.
142 In so far as the respondents point to minimal loss as diminishing the seriousness of the conduct, I note that loss is not an element of the contraventions. Evidence of substantial loss may aggravate a contravention, but the absence of an aggravating factor is not a mitigating factor.
143 Before leaving this consideration, I note that there was debate during the hearing about the applicant's reference in its written submission to a passage from The Botany Cranes Case where Rares J described the CFMMEU's conduct in that case as being in the high end of seriousness and warranting the imposition of severe penalties. The respondents took issue with the relevance and applicability of that case to these proceedings, which it said was significantly different. That submission appears to have proceeded on a misunderstanding of the ABCC's reliance on The Botany Cranes Case. It was not suggested by the ABCC that it was a case in which the penalties imposed were in any way comparable to what ought to be imposed here. Rather, the ABCC only referred to it as the CFMMEU's conduct in each case had similar characteristics. Suffice to say, each case turns on its own facts.