THE UNION
93 The declaration of liability against the Union, as amended with the consent of the parties on 14 August 2017, was expressed as follows:
1. … In respect of the contraventions of the first respondent on 28 April 2014, 23 May 2014, 6 June 2014 and 14 July 2014 and the contravention of the third respondent on 14 July 2014, the fourth respondent:
(a) is taken, by s 793(1) of the Act to have also engaged in the conduct of the first and third respondents;
(b) is taken, by s 793(2) of the Act to have known of all of the essential facts constituting each contravention;
(c) was, therefore, knowingly concerned in each contravention within the meaning of s 550(2)(c) of the Act; and
(d) therefore is taken in each instance to have contravened s 500 of the Act pursuant to s 550(1) of the Act.
94 It is not inappropriate for a party to make submissions as to the monetary range in which the Court should consider imposing a penalty: The Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482. Ranges were submitted in relation to the individual respondents and the submissions taken into account. The Commissioner submitted the following ranges of penalties in respect of the Union's deemed contraventions, expressed as a percentage of the maximum:
(1) in relation to the contravention by Mr McDermott on 28 April 2014, a penalty in the range of between 70% to 90% ($35,700 to $45,900);
(2) in relation to the contravention by Mr McDermott on 23 May 2014, a penalty in the range of between 70% to 90% ($35,700 to $45,900);
(3) in relation to the contravention by Mr McDermott on 6 June 2014, a penalty in the range of between 70% to 90% ($35,700 to $45,900);
(4) in relation to the contravention by Mr McDermott on 14 July 2014, a penalty in the range of between 70% to 90% ($35,700 to $45,900); and
(5) in relation to the contravention by Mr Cartledge on 14 July 2014, a penalty in the range of between 70% to 90% ($35,700 to $45,900).
95 The Union's submitted ranges were as follows:
(1) in relation to the contravention by Mr McDermott on 28 April 2014, a penalty in the range of between 15% to 25% ($7,650 to $12,750);
(2) in relation to the contravention by Mr McDermott on 23 May 2014, a penalty in the range of between 6% to 16% ($3,060 to $8,160);
(3) in relation to the contravention by Mr McDermott on 6 June 2014, a penalty in the range of between 6% to 16% ($3,060 to $8,160);
(4) in relation to the contravention by Mr McDermott on 14 July 2014, a penalty in the range of between 10% to 20% ($5,100 to $10,200); and
(5) in relation to the contravention by Mr Cartledge on 14 July 2014, a penalty in the range of between 10% to 20% ($5,100 to $10,200).
96 In the result, I have rejected the submissions of both the Commissioner and the Union in relation to their proposed monetary ranges as being, respectively, overly severe or overly lenient.
97 As the declaration makes plain, the conduct and the knowledge of the officials is to be attributed to the Union by the operation of s 793 of the Act. The conduct and knowledge referred to in the declaration is that conduct and knowledge relevant to establishing the essential elements of the Union's deemed liability under s 550 of the Act. In the present case, and for reasons explained in the second judgment, the Union's involvement in the contraventions arises by the attribution to it of the conduct of its officials by the operation of s 793(1). In addition, it is taken to have knowledge of the essential facts constituting each contravention by the operation of s 793(2).
98 For the purpose of the imposition of penalties, other relevant conduct may be attributed to the Union pursuant to s 793(1). So too may the states of mind attending that relevant conduct: s 793(2). For the purpose of the imposition of penalties, I attribute to the Union the same states of mind as that found in respect of each of its officials, not only in relation to the elements of it accessorial liability, but also in relation to the proven conduct that forms a part of the surrounding circumstances in which the contraventions occurred.
99 The parties are not in complete accord as to the full extent of the Union's history of non-compliance with relevant industrial laws. I do not consider the points of difference to be of any great moment. It is sufficient to state that at the time of the contraventions the Union had a significant history of proven non-compliance and that conduct occurring prior to the subject contraventions has since culminated in yet further findings of liability and the imposition of yet further penalties.
100 The Union's history of non-compliance is properly described as reprehensible. That description would remain appropriate even assuming there to be some merit in the points taken by the Union about the Commissioner's submitted summary of contraventions.
101 It was submitted, and I accept, that as at the date of submissions as to penalty, no allegation of contravention had been made against the Union for a period of one year and nine months. From there it was submitted that the Court may infer that civil penalties previously imposed on the Union have had sufficient deterrent effect, so as to reduce the need for specific deterrence in this instance. In light of the Union's past contraventions, the absence of further allegations in that period is insufficient, in and of itself, to support an inference that penalties imposed upon the Union in the past have had the claimed deterrent effect. That is especially so having regard to the inferences I have drawn about the serious and persisting states of mind of the Union's more senior officials, Mr McDermott and Mr Cartledge. Whilst neither presently remain employed by the Union there is no evidence to suggest that the employment relationship ended because the Union disapproved of their actions or attitudes and so sought to rid them from the organisation. There is nothing to indicate that the Union did anything to bring about a change of perspective among the three individual respondents in this case, nor among its officials more generally. I am not prepared to draw an inference that the Union has done anything to bring about organisational change since the dates of these contraventions so as to promote the public interest in its compliance with the Act. There is a pronounced need for specific and general deterrence.
102 Whilst the capacity of a contravener to pay a civil penalty is a relevant consideration, neither party has adduced evidence to enable a meaningful assessment to be made of that factual issue. It does not weigh heavily either way in my determination of the appropriate penalties.
103 As to the Union's degree of co-operation, it is true that the Union made relatively early admissions of contraventions based upon, and qualified by, the admissions of its officials. With the leave of the Court, it withdrew its admissions and contested liability on questions of law. The change in position is adequately explained by the amendment by the Commissioner of his case so as to introduce a new legal issue, not previously determined by this Court The amendments concerned the proper legal basis for the Union's liability: second judgment [68] - [93] (vicarious liability) and [94] - [125] (accessorial liability). In my view the Union's conduct in contesting the now pleaded questions of law should not affect the reduction in penalty that might otherwise be allowed in recognition of its degree of co-operation. It is appropriate to proceed on the basis that the Union's degree of co-operation in respect of each contravention is not materially different than that of the officials themselves. As has been observed, the official's co-operation was not absolute. In the case of Mr Sloane it was lacking entirely.
104 Regard must be had to whether the contraventions of the Union are properly to be regarded as occurring in the context of a course (or courses) of conduct so as to attract the application of the course of conduct principle. As the Full Court stated in the Sham Contracting Case at [114]:
The important point to emphasise is that the course of conduct principle, in the criminal context at least, does not operate to permit a sentencing judge to impose a single sentence in respect of multiple offences on the basis that the offences formed part of a course of conduct. Absent a statutory provision that provides otherwise, a sentencing judge is to impose a separate sentence, albeit with the option of concurrency, for each offence.
105 After noting the principle has application in a civil penalty context, the Full Court went on to say at [148]:
The important point to emphasise is that, contrary to the Commissioner's submissions, neither the course of conduct principle nor the totality principle, properly considered and applied, permit, let alone require, the Court to impose a single penalty in respect of multiple contraventions of a pecuniary penalty provision. There is no doubt that, in an appropriate case involving multiple contraventions, the Court should consider whether the multiple contraventions arose from a course or separate courses of conduct. If the contraventions arose out of a course of conduct, the penalties imposed in relation to the contraventions should generally reflect that fact, otherwise there is a risk that the respondent will be doubly punished in respect of the relevant acts or omissions that make up the multiple contraventions. That is not to say that the Court can impose a single penalty in respect of each course of conduct. Likewise, there is no doubt that in an appropriate case involving multiple contraventions, the Court should, after fixing separate penalties for the contraventions, consider whether the aggregate penalty is excessive. If the aggregate is found to be excessive, the penalties should be adjusted so as to avoid that outcome. That is not to say that the Court can fix a single penalty for the multiple contraventions.
106 No oral submissions were made by the parties in relation to the appropriate penalty to be imposed upon the Union. In written submissions, the Commissioner referred to the course of conduct principle and denied that the principle should apply so as to alter penalties that should otherwise be imposed. The Union has made no submission to the contrary. Its written submissions refer to the legal principle, however it has not suggested that the contraventions arose out of a course (or courses) of conduct on the facts, nor how the penalties imposed might reflect that circumstance. In the absence of a submission by the Union asserting a proper factual foundation for the application of the principle, I do not consider the question to be truly in contest. I accept the Commissioner's uncontested submission that there is no basis for finding that the Union engaged in a course of conduct (albeit as an accessory) in respect of any combination of two or more of the contraventions deemed to have been committed by it.
107 The following penalties should be imposed on the Union in respect of its deemed contraventions:
(1) for its knowing involvement in the contravention by Mr McDermott on 28 April 2014, a penalty of $24,990;
(2) for its knowing involvement in the contravention by Mr McDermott on 23 May 2014, a penalty of $22,950;
(3) for its knowing involvement in the contravention by Mr McDermott on 6 June 2014, a penalty of $22,950;
(4) for its knowing involvement in the contravention by Mr McDermott on 14 July 2014, a penalty of $22,950; and
(5) for its knowing involvement in the contravention by Mr Cartledge on 14 July 2014, a penalty of $22,950.
108 The aggregate penalties in respect of the multiple contraventions is $116,790. Having regard to the totality of the Union's attributed conduct, I am satisfied that the aggregate penalty is not oppressive or crushing.