Australian Building and Construction Commissioner v Menon

Federal Court of Australia|2020-10-02|Before: White J

Background to the contravening conduct 8 In May 2018, Sitzler was undertaking the construction of the Palmerston Police Station at a site on Kettle Street, Farrar at Palmerston in the Northern Territory (the Site). In doing so, it was a "building industry participant" within the meaning of s 5 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the BCIIP Act) and its employees were engaged in "building work" within the meaning of s 6 of that Act. The employees were also "workers" and "relevant workers" as the case may be for the purposes of ss 84, 86 and 117 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (the WHS Act). The site constituted "premises" for the purposes of Pt 3-4 of the FW Act and Sitzler was the occupier of the Site. 9 In May 2018, each of Mr Menon, Mr Taylor and Mr Cummins held an entry permit issued under s 512 of the FW Act (FW Act Permit). In addition, each held a permit (the WHS Permit) issued under s 134 of the WHS Act.

The contraventions on 14 May 2018 10 The events giving rise to the present proceedings commenced at about 11.05 am on 14 May 2018 when Mr Menon and Mr Taylor attended the Site. They showed both their FW Act Permits and their WHS Permits to Mr Ryan, who was Sitzler's Construction Site Manager. Mr Menon and Mr Taylor told Mr Ryan that they were on Site because the unmanned entrance gate constituted a safety breach and the Site had a lack of amenities. Mr Menon handed to Mr Ryan a notice of entry prepared under s 119 of the WHS Act (the WHS Notice of Entry) which stated: I observe no traffic management on site. I cannot see adequate lunchroom and amenities on job. The purpose of the site visit is for suspected contraventions of safety Acts Investigations. 11 Mr Menon then said to Mr Ryan, in the presence of Mr Taylor, words to the effect: Sitzler needed "to close up the site due to the safety breaches"; and he and Mr Taylor wanted to walk around the site to investigate the safety breaches. 12 At about 11.15 am, Mr Ryan escorted Mr Menon and Mr Taylor around the Site during which: (a) Mr Menon and Mr Taylor pointed out an open gate and said that there was no traffic management on Site; (b) Mr Menon said to Mr Ryan, in the presence of Mr Taylor, words to the effect that Sitzler "should shut the site" and that "Sitzler needed to stop works for Sitzler and the CFMMEU to start off on a good foot and have a good relationship for the project"; and (c) Mr Menon said to Mr Ryan that there was no toilet or crib room on the Site. 13 Shortly after their walk around the Site, Mr Ryan, Mr Menon and Mr Taylor returned to the Site office at which the following occurred: (a) Mr Menon said to Mr Ryan, in the presence of Mr Taylor, words to the effect that "due to the lack of crib hut and toilets for the workers, the site needed to be shut"; (d) Mr Ryan did not respond; (e) Mr Menon again said to Mr Ryan, in the presence of Mr Taylor, that he needed to shut the Site because of the lack of facilities for the workers; (f) Mr Ryan replied that Sitzler was currently working on putting in facilities; (g) Mr Menon replied with words to the effect that "it is not good enough and it should've been done beforehand"; and (h) Mr Menon again said to Mr Ryan, in the presence of Mr Taylor, that Sitzler needed to shut the Site as there were safety issues. 14 By reason of Mr Menon's requests for Sitzler to shut the Site, Mr Ryan arranged for the Site workers to stop working and attend the Site office for approximately 15 minutes. Following that time, the workers resumed work. 15 After the workers resumed their work, Mr Menon said to Mr Ryan words to the effect: What is going on, what are they doing, you were doing so well. 16 At about 11.45 am, Mr Moran, a Health, Safety and Environment (HSE) Advisor for Sitzler, arrived at the Site. The following then occurred: (a) Mr Menon and Mr Taylor each said to Mr Moran, in the presence of the other, words to the effect "shut the site, you have safety breaches" and "you have the power and you will shut the Site now"; (b) Mr Moran replied that he wanted to look at how many staff were on the Site and check whether the amenities were sufficient; and (c) either Mr Taylor or Mr Menon said to Mr Moran words to the effect "you don't need to, you have a safety breach and you need to shut the site". 17 Following that discussion, Mr Menon and Mr Taylor attended the Site office and: (a) Mr Menon and Mr Taylor each showed Mr Moran their FW Act Permits and their WHS Permits; (b) Mr Taylor said to Mr Moran, in the presence of Mr Menon, words to the effect "you are in breach of safety and you will be held responsible if you do not shut the site" and "you are in breach and you will pay the price if you don't shut the site". The ABCC styled this threat as the "Taylor Pay the Price Threat"; (c) Mr Menon showed Mr Moran the WHS Notice of Entry; (d) Mr Menon said to Mr Moran, in the presence of Mr Taylor, words to the effect "you need to shut the site and stop work" and that Mr Moran would "pay the price" if he did not. The ABCC styled this threat as the "Menon Pay the Price Threat"; (e) either Mr Taylor or Mr Menon said to Mr Moran words to the effect that Sitzler were "scabs"; and (f) Mr Moran said to Mr Menon and Mr Taylor that Sitzler did not have to stop work and that there were sufficient facilities on the Site. 18 At about 11.50 am on 14 May 2018, three inspectors from the ABCC (Mr Northey, Ms Sheldon and Mr Toombs) attended the Site. On observing their attendance, Mr Menon asked Mr Ryan "who are they, what are they doing here?". The following interchange then occurred: Mr Ryan said words to effect that "they are the ABCC Inspectors and they are here to provide advice to Sitzler"; and either Mr Menon or Mr Taylor said words to the effect that "if you want to play the game, we'll play the game". 19 About 15 minutes later, Mr Cummins and three other CFMMEU officials, attended the Site. These officials together with Mr Menon, Mr Taylor and Mr Cummins signed the Sitzler visitor's book. At about this time, one of the CFMMEU officials placed another WHS Notice of Entry signed by Mr Cummins and three of the CFMMEU officials on the desk in the Site office. This second notice of entry stated: Insuficient Amenties [sic] e.g. toilets not plumbed in, no power to lunch rooms or toilets" and "No Traffic management plan, controllers ect [sic]. 20 At around 12.15 pm, Mr Moran walked around the Site with all of the CFMMEU officials. After the Site walk, Mr Moran and all of the CFMMEU officials returned to the Site office at which point Mr Cummins, in the presence of all the other CFMMEU officials, said to Mr Moran and Mr Ryan words to the effect: (a) "there's no toilet", the water had dirt in it, and was "not fit to drink"; (b) the toilets were "fucking disgusting", were not fit to use, and weren't clean; and (c) the generator on the Site was not tagged and that "this isn't safe, it isn't tested and tagged, fuckin' isolate it, turn it off, you don't fuck with power". 21 Not long after, at about 12.40 pm, two NT WorkSafe Inspectors (Mr Lucas and Ms Sayers) arrived at the Site. Mr Menon and Mr Cummins then had a conversation with Mr Lucas and Ms Sayers during which: (a) Mr Lucas asked Mr Menon why there were six CFMMEU officials on the Site; (b) Mr Menon replied with words to the effect that "they have come in as back up because there were three ABCC officials on the Site"; (c) Mr Lucas said he was going to speak with Sitzler about the safety issues, to which Mr Menon replied by saying in a loud and aggressive voice words to the effect "don't you want to hear what the contraventions are first?"; (d) Mr Lucas asked Mr Menon what his concerns were, to which Mr Menon replied, loudly and aggressively, that he had grave concerns for the workers' immediate health and safety because the Site did not have adequate facilities or crib rooms, the toilet was disgusting, there was no traffic management plan, and the generator had not been tested and tagged; (e) Mr Menon then said to Mr Lucas words to the effect "you need to close the site"; and (f) Mr Cummins said to Mr Lucas and Ms Sayers words to the effect "you need to close the site". 22 The respondents admit that, in the conversations which Mr Menon and Mr Cummins had with Mr Lucas and Ms Sayers, each of Mr Menon and Mr Cummins had spoken in loud and aggressive voices while standing very close to them and had spoken over the top of them. They also admit that the behaviour of Mr Menon and Mr Cummins towards Mr Lucas and Ms Sayers had been improper. 23 At around 1.15 pm on 14 May 2018, Mr Moran conducted a toolbox meeting with the Site workers during which: (a) Mr Moran spoke about new facilities being installed on the Site, the current temporary crib room, the temporary toilets and drinking water; (b) Mr Menon said to the workers words to the effect "you don't have to work under these conditions and you are entitled to go home on full pay". The ABCC styled this as "the Go Home Representation"; (c) Ms Sayers said to the workers words to the effect that "under the WHS Act you do have the right to cease work if you feel that you are in imminent or immediate danger, however, you do not go home, you make yourself available for other work"; (d) Mr Moran then said to the workers words to the effect that, if they were concerned with any safety issues on Site and did not wish to work on the Site, then they ought to let Sitzler know; and (e) none of the workers raised any safety issues with Mr Moran. 24 Following the toolbox meeting, the workers returned to their work on the Site. 25 At about 1.40 pm on 14 May 2018, all of the CFMMEU officials left the Site. 26 It was common ground that each of Mr Menon, Mr Taylor and Mr Cummins had, before their respective entries, suspected reasonably that a contravention of the WHS Act was occurring, had entered the Site for the purpose of enquiring into the suspected contravention, and were exercising, or seeking to exercise, a right in accordance with Pt 3-4 of the FW Act. 27 It was also common ground that Mr Lucas of NT WorkSafe had on 14 May 2018 at 11.45 am (that is, before the arrival of Mr Lucas and Ms Sayers at the Site that day) issued two improvement notices to Sitzler concerning conditions on the Site. 28 Arising out of the events described earlier, the ABCC allege, and the respondents admit, that Mr Menon had contravened s 500 of the FW Act four times by acting in an improper manner. Regrettably, the order in which the ABCC numbered these in his Amended Statement of Claim did not correspond with the actual sequence in which they occurred. 29 The first pleaded contravention was constituted by Mr Menon making the Go Home Representation at the toolbox meeting at about 1.15 pm. That Representation was false or misleading because the Site workers had not been entitled to leave the Site on full pay because the Site was unsafe. Instead, s 84 of the WHS Act provides that a worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard. Section 86 of the WHS Act provides that a worker who ceases work must, as soon as practicable, notify the person conducting the business or undertaking that he or she has ceased working, and remain available to carry out suitable alternative work. Mr Menon's Go Home Representation had the effect, if heeded, of affecting the performance of work on the Site. 30 The second pleaded contravention of Mr Menon was constituted by his making of the Menon Pay the Price Threat to Mr Moran shortly after 11.45 am. This was improper because the statement was not only false or misleading, it contained a threat that Sitzler would suffer a detriment if it did not comply with the demand. The force of the threat was underlined by the fact that it was made by an organiser of a large well-resourced union well capable of exercising "industrial muscle". 31 The third contravention by Mr Menon of s 500 was constituted by his repeated demands to Mr Ryan and Mr Moran in the period between 11.15 am and 11.45 am that Sitzler shut the Site down. These were false or misleading because there was no requirement or obligation to do so. 32 Mr Menon's fourth pleaded contravention was constituted by his loud and aggressive requests or demands to the NT WorkSafe Inspectors (Mr Lucas and Ms Sayers) at about 12.40 pm (which were made when standing in close proximity to them) that they shut the Site down. There was no obligation on them to do so and the manner in which the demands were made was improper. 33 The ABCC alleges, and the respondents admit, that Mr Taylor twice breached s 500 of the FW Act by acting in an improper manner. Mr Taylor's first contravention was constituted by his making of the Taylor Pay the Price Threat to Mr Moran shortly after 11.45 am. As in the case of Mr Menon, the statement was false or misleading and the making of a threat with the apparent backing of the CFMMEU was misleading. 34 Mr Taylor's second contravention was constituted by his earlier repeated demands to Mr Moran on his arrival at the Site at about 11.45 am that Sitzler shut the Site down when there was no requirement or obligation on Sitzler to do so. 35 The ABCC alleges, and the respondents admit, a single contravention of s 500 by Mr Cummins on 14 May 2018. That contravention was constituted by composite conduct of Mr Cummins, namely, his conduct in swearing at Mr Moran and Mr Ryan, his improper conduct towards Mr Lucas and Ms Sayers, and his demands that Mr Lucas and Ms Sayers shut the Site down when there was no obligation on them to do so. The swearing comprised Mr Cummins' statement that the toilets were "fucking disgusting" and his statements in relation to the generator that Sitzler should "fuckin' isolate it, turn it off, you don't fuck with power".

The contraventions on 15 May 2018 36 On 15 May 2018 at about 1.08 pm, Mr Cummins and three other CFMMEU officials attended the Site. At the request of Ms Fryk, one of Sitzler's HSE Advisors, Mr Cummins and one of the other officials showed their entry permits. Ms Fryk then asked Mr Cummins and one other official for the notice of entry setting out the reason for the proposed entry. Mr Cummins replied with words to the following effect: We're just here to check if you made changes, if you want a fucking permit then we will go through this whole site top to bottom again. The ABCC styled this statement as the "Cummins Top to Bottom Threat". 37 Mr Cummins did not provide a notice of entry to Ms Fryk. 38 Shortly afterwards Mr Cummins told Ms Fryk that the CFMMEU officials did not intend staying on the Site but wanted to see whether Sitzler had made improvements from the day before. 39 Mr Cummins and the other officials did not enter the Site and left at about 1.15 pm. 40 It was common ground that Mr Cummins had reasonably suspected before seeking to enter the Site that a contravention of the WHS Act was occurring, that he had sought to enter for the purpose of enquiring into suspected contraventions of the WHS Act and that he was exercising, or seeking to exercise, a right in accordance with Pt 3-4 of the FW Act. 41 The ABCC alleges, and the respondents admit, that on 15 May 2018 while on or seeking to enter the Site, Mr Cummins had acted in an improper manner by refusing to show a notice of entry when asked by Ms Fryk to do so, by making the Cummins Top to Bottom Threat, and by swearing at Ms Fryk.

The contraventions by the CFMMEU 42 The CFMMEU admits that the conduct and states of mind of each of Mr Menon, Mr Taylor and Mr Cummins in respect of each of their contraventions are, by virtue of s 793 of the FW Act, to be taken also as its acts and its states of mind. The effect is that the CFMMEU admits that it contravened s 500 on eight occasions: four times on 14 May 2018 by reason of the conduct of Mr Menon, twice on 14 May 2018 by reason of the conduct of Mr Taylor, once on 14 May 2018 by reason of the conduct of Mr Cummins, and once on 15 May 2018 by reason of the conduct of Mr Cummins. 43 The ABCC also alleged that the CFMMEU is liable as an accessory for each of the above contraventions pursuant to s 550 of the Act, and the CFMMEU accepted that that was so. The submissions proceeded on the basis that the CFMMEU is liable pursuant to both ss 550 and 793 and that no distinction need be drawn between these distinct bases of liability.

Declarations 44 The ABCC submitted that the Court should issue declarations as to each of the contraventions identified above. He submitted that declarations of contraventions are particularly appropriate in a case like the present which proceeds on the basis of formal admissions rather than on the basis of findings following a trial. In such cases, the declarations serve the purpose of identifying the conduct for which the Court imposes the penalties. The respondents did not, in substance, oppose the making of the declarations sought by the ABCC. 45 I am satisfied that the making of declarations is appropriate in the present case even though penalties will also be imposed on the respondents. It is common for declarations to be made in circumstances of the present kind. Doing so serves a number of purposes, including providing a formal pronouncement by the Court of the nature of the contravention involved, and by providing a statement of the Court's denunciation of the conduct. In some circumstances, declarations can also serve an educational purpose.

Penalties 46 Subject to consideration of a submission made by the ABCC concerning the application of the principle of proportionality, the principles concerning the fixing of penalties in circumstances of the present kind are settled. Counsel for the ABCC referred in his submissions to the summary by the Full Court in 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: [19] … Of particular significance is the recognition that deterrence (general and specific) is the principal and indeed only object of the imposition of a penalty - to put a price on contravention that is sufficiently high to deter repetition by the contravener and others who might be tempted to contravene the Act … Retribution, denunciation and rehabilitation have no part to play. [20] Relevant factors in the overall assessment of penalty were helpfully listed by French J in CSR. They have been adopted in many cases. For present purposes, they can be restated as follows: the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; and, any co-operation with the regulator and contrition. [21] The seriousness of the contravention and other features of the conduct which may be seen as relevant to it (here, the seriousness of interruption of a concrete pour, the seriousness of the threats of repetition, the deliberateness of the contravening of the Act, and the exhibited apparent sense of impunity in undertaking contravening conduct) find their place in understanding the degree of deterrence that is necessary to be reflected in the size of the penalty … [22] The overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct. The history of contravention is to be taken into account in fixing the proper level of penalty for the proportionate response to the contravention in question. Proportionality has within it the need to characterise the seriousness of the contravention. Proportionality of penal response to a contravention assessed by reference to its seriousness and gravity is an essential characteristic of the application of the statute. The penal response is for that contravention, not earlier contraventions … Prior contraventions may reveal an apparent disregard for the Act and the need for deterrence by a penalty at a level appropriate to achieve that objective. It is to be borne in mind, however, that it is for the conduct in question that the penalty is imposed, not for prior conduct. (Citations omitted) 47 I did not understand counsel for the respondents to contend that the Court should not give effect to this statement of the principles. 48 It is established that the Court is to determine an appropriate penalty having regard to the contravening conduct and to the contravenor's circumstances by a process of instinctive synthesis after taking into account all relevant factors, in the manner discussed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [37], [39]. 49 The ABCC emphasised that the principal purpose of a civil penalty imposed pursuant to s 546 of the FW Act is deterrence, both general and specific. He referred in this respect to [19] in The Non-Indemnification Personal Payment Case, and to Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (The Agreed Penalties Case) at [55]. Counsel also referred to the statement of Dowsett and Rares JJ in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458 (The Perth Airports Case) at [101]: … A civil penalty would lose its utility if the person on whom it was imposed simply treated it as a cost of continuing to carry on with the very conduct that had just been penalised. 50 The ABCC submitted that this meant that the penalties imposed on Mr Menon, Mr Taylor and Mr Cummins should be sufficiently high so as to: (a) act as a specific deterrent to each of them from engaging in further contravening conduct in their employment as organisers by the CFMMEU; and (b) act as a general deterrent to other officers of the CFMMEU who exercise rights of entry. 51 As to the requirement to have regard to the maximum penalties, it is sufficient to refer to passages in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25, being the same passages to which the Full Court referred in The Non-Indemnification Personal Payment Case at [26]: [154] In considering the sufficiency of a proposed civil penalty, regard must ordinarily be had to the maximum penalty. In Markarian, a criminal sentencing context, it was observed at [31] that: careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. [155] The reasoning in Markarian about the need to have regard to the maximum penalty when considering the quantum of a penalty has been accepted to apply to civil penalties in numerous decisions of this Court both at first instance and on appeal ... As Markarian makes clear, the maximum penalty, while important, is but one yardstick that ordinarily must be applied. [156] Care must be taken to ensure that the maximum penalty is not applied mechanically, instead of it being treated as one of a number of relevant factors, albeit an important one. Put another way, a contravention that is objectively in the mid-range of objective seriousness may not, for that reason alone, transpose into a penalty range somewhere in the middle between zero and the maximum penalty. Similarly, just because a contravention is towards either end of the spectrum of contraventions of its kind does not mean that the penalty must be towards the bottom or top of the range respectively. However, ordinarily there must be some reasonable relationship between the theoretical maximum and the final penalty imposed. (Citations omitted)

Proportionality of the penalty 52 In his written submissions, the ABCC accepted that each of the penalties imposed on the present respondents must be proportionate to their contraventions, referring in this respect to The Non-Indemnification Personal Payment Case at [22]. He submitted, however, that proportionality is to be "measured" by reference to both the objective seriousness of the contraventions and the circumstances of the individual contravenor, taking into account, in particular, whether the contravenor is "a recidivist offender". In the present case, this meant, he submitted, that the proportionality of the penalties was to be assessed not only by reference to the gravity of the instant contraventions but also by reference to the CFMMEU's extensive record of contraventions. 53 The ABCC submitted that there is "an established line of authority" indicating that this is so. He referred to Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126, (2018) 265 FCR 208 at [14], [24]-[27] (Tracey J), and [66]-[69] (Logan J); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, (2017) 254 FCR 68 (The Agreed Penalties Case FC) at [100]-[104] (Dowsett, Greenwood and Wigney JJ); Parker v Australian Building and Construction Commissioner [2019] FCAFC 56, (2019) 270 FCR 39 at [341]-[342], [363] (Besanko and Bromwich JJ) as well as two decisions of single Judges of the Court. Counsel referred in particular to Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 155 in which Wheelahan J said at [96]: On the issue of the relevance of past contraventions by the CFMEU respondents and proportionality, I shall apply the principles and guidance identified in The Non-Indemnification Personal Payment Case, the Broadway on Ann case, and in Parker in the passages to which I have referred above. I accept the submission made on behalf of the CFMEU respondents that the prior record of a contravener does not permit the imposition of a penalty that is disproportionate to the offending conduct for which the penalty is to be imposed. But Veen v The Queen (No 2), the reasons of Tracey J and Logan J in the Broadway on Ann case, and the reasons of the members of the Court in Parker support the idea that past contraventions may be relevant in assessing the seriousness of the instant contraventions. A history of contraventions may affect a number of features of the instant contraventions, including whether the instant contraventions are a manifestation of a continuing attitude of disobedience to the law. For this reason, and when all the background circumstances and other features of a contravention are considered, what might in isolation and superficially be a minor contravention may take on the complexion of a much more serious contravention. And consistently with deterrence being the principal object of the imposition of civil penalties under the Fair Work Act, a history of contravention may point to a need for a more severe penalty than would otherwise be the case if there was no history of contravention. The significance of a history of contraventions may be compounded by the absence of contrition, and the absence of evidence addressing steps taken to ensure future compliance with the law. For these reasons, a severe penalty may be proportionate to what might in other circumstances be a minor contravention. Overriding these considerations is the care that should be exercised to ensure that any penalties imposed for the instant contraventions do not amount to double punishment for prior contraventions. Care in avoiding double punishment also informs other aspects of the process of fixing penalties, including whether the contraventions are part of a course of conduct, and the totality principle. 54 Following the reservation of judgment, counsel for the ABCC (with the consent of the respondents) drew the Court's attention to the decision of Anastassiou J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2) [2020] FCA 202. 55 The ABCC said that some authorities appear to adopt a narrower view of the matters to which regard is taken into account in the assessment of proportionality, citing The Broadway on Ann Case at [102] (Bromwich J); Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 267 FCR 268 at [176] (Allsop CJ, Collier and Rangiah JJ); Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Geelong Grammar School Case) (No 2) [2019] FCA 1498 at [37]-[43] (Mortimer J); Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 at [26]-[30] (Bromberg J); and to Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 at [35] (Bromberg J). 56 The ABCC also referred to Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 in which Snaden J had concluded, at [83] and relying on the majority in The Broadway on Ann Case, that "in assessing the nature, character and seriousness (and/or gravity) of the Union's Agreed Contraventions, regard may properly be had to its history of contravening conduct". Counsel also referred to the statement of Snaden J at [72]: If the only way to deter even the most objectively inoffensive conduct (so assessed without reference to historical context) is to impose a penalty at or approaching the maximum amount available, then the imposition of anything less would necessarily result in a failure to achieve the only object to which the imposition of civil penalties is directed … 57 In his oral submissions, counsel for the ABCC advanced, formally, a fundamentally different position regarding the principle of proportionality. This was that the principle is not a relevant consideration at all in the fixing of a pecuniary penalty for a contravention of a civil remedy provision. Counsel did so by informing the Court that, in the appeal against the decision in Pattinson, the ABCC had filed a notice of contention which set out the position for which the ABCC contended in relation to proportionality and deterrence. 58 Counsel said that he put this position formally (and did not advance any submissions in support of it) because he accepted that there were a number of Full Court judgments to the contrary, which this Court, constituted by a single Judge, is bound to follow. Likewise, counsel for the respondents did not make submissions concerning the ABCC's alternative claim, and reserved their position. 59 Counsel for the respondents accepted that a contravenor's antecedents may be relevant to the assessment of the appropriate penalty. He submitted nevertheless that any penalty imposed should be proportionate to the contravening conduct and, in particular, should not be disproportionate to the objective gravity of the conduct, relying on The Non-Indemnification Personal Payment Case at [22]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Perth Childrens' Hospital Contraventions Case) [2017] FCA 491 at [160] (Barker J); Australian Building and Construction Commissioner v Pauls [2017] FCA 843 at [68] (Rangiah J); and Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2010] FCA 977, (2010) 199 IR 373 at [47] (Barker J). It is not apparent that the respondents' citation of the Perth Childrens' Hospital Contraventions Case is pertinent. 60 Counsel also made submissions by reference to The Broadway on Ann Case, Parker and Pattinson to which the ABCC had referred. 61 Counsel submitted (correctly) that fundamental principles in criminal sentencing preclude offenders being punished for offences for which they have not been convicted and from being punished twice for the same conduct. He then submitted that it follows that a sentence cannot be increased beyond that which is proportionate to the crime for the purposes of protecting society from the offender's recidivism. Counsel submitted that the same approach should be adopted in the fixation of civil penalties. 62 I take the view that a detailed consideration of the issues to which the submissions of the ABCC referred is, for a number of reasons, neither necessary nor appropriate for the disposition of these proceedings. First, the appeal in Pattinson has now been heard by a Full Court of five judges. The decision in that appeal is likely to involve a detailed consideration of the place of the proportionality principle (and its inter-relationship with the object of deterrence) in the fixation of civil penalties pursuant to s 546. A discussion of the relevant authorities and principles in this case is not necessary in order to set the scene for a Full Court appeal. 63 Secondly, sitting as a single Judge, I consider that the issues in this case should be resolved by the application of the approach stated by the Full Court in The Non-Indemnification Personal Payment Case in the passages set out above and, in particular, in [22]. This approach has been adopted or followed in subsequent decisions of the Full Court, including Parker at [340]; Auimatagi at [176]; The Broadway on Ann Case at [97] (Bromwich J, although in dissent in the result); and in numerous decisions of single judges. Sitting as a single Judge, it would not be appropriate for the Court lightly to depart from that approach. 64 Thirdly, the principle of proportionality does not preclude the Court from having regard to a contravenor's prior contraventions when assessing the gravity of a contravention. As already noted, counsel for the respondents accepted that that was so, describing that position as "longstanding orthodoxy". 65 In the criminal law, the relevance of an offender's criminal antecedents is well recognised. The position was stated by King CJ in R v McInerney (1986) 42 SASR 111 at 113: The cardinal rule is that while good character may operate to reduce the sentence which the facts of the crime would otherwise attract, bad character cannot increase it. A person is not to be punished, or punished again, for crimes other than the crime for which sentence is being passed. Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner's record may indicate that greater punishment is needed to protect the public by deterring him from further crime. Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases. The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending. He must be sentenced against the background of his record … The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies. (Citation omitted and emphasis added) 66 The approach stated by King CJ in McInerney is very similar to that stated in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 in which the plurality (Mason CJ, Brennan, Dawson and Toohey JJ) said at 477: [T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences … The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. (Citation omitted and emphasis added) 67 The High Court addressed again the significance of a previous record in the sentencing for a criminal offence in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629. The plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said, at [32]: … A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration. 68 In Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381, the plurality (French CJ, Crennan, Kiefel and Bell JJ) said of the principle of proportionality, at [51]: … The sentence imposed must be proportionate in the sense that it properly reflects the personal circumstances of the particular offender and the particular conduct in which the offender engaged when those circumstances and that conduct are compared with other offenders and offending. 69 Four further points may be made. First, the way in which the Court seeks to achieve the object of deterrence is by imposing a punishment in the form of a pecuniary penalty: The Agreed Penalties Case FC at [99] (while acknowledging that there is some controversy about that issue); Comcare v Post Logistics Australasia Pty Ltd [2012] FCAFC 168, (2012) 207 FCR 178 at [55]. 70 Secondly, it is to be remembered that deterrence is the principal purpose of some criminal sentences and that civil penalties are not sui generis in that regard. For example, sentencing for the offence of driving a motor vehicle whilst disqualified from holding or obtaining a driver's licence has, as its predominant purpose, deterrence, both specific and general. See the discussion by King CJ in Eldridge v Bates [1989] SASC 1268; (1989) 51 SASR 532 at 533-4 and the discussion of that judgment in Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150. The judgment of Bray CJ in Birch v Fitzgerald (1975) 11 SASR 114 at 116-7 provides another example of the proposition that there are offences for which deterrence is the predominant consideration in sentencing. The principle of proportionality remains applicable to sentencing in that context. 71 Thirdly, not all prior contraventions will be relevant, or relevant in the same way to the fixing of the penalty. Much will depend on the nature of the prior contraventions, the time when they occurred and, perhaps, the circumstances in which they occurred. Ordinarily, previous contraventions of a generally similar kind will be particularly relevant, but even conduct of that kind may lose some or all of its significance if it occurred well-distant from the current contraventions. 72 Even when the previous contraventions involved conduct of a different character, they may still be relevant to the fixation of penalty. Depending upon the circumstances, a history of previous contraventions may indicate an attitude of defiance of, or indifference to, compliance with the law. In either case considerations of personal deterrence will usually be important in fixing a penalty. Obviously enough, a history of prior contraventions will usually preclude lenience being extended to a contravenor by reason that the contravention under consideration is of an isolated nature. 73 Fourthly, it is necessary to keep firmly in mind that the penalty is imposed for the contravention before the Court, and not for earlier contraventions: The Non-Indemnification Personal Payment Case at [22]. 74 The approach outlined above is that which I will adopt in the present case. Whether any different application of the proportionality principle is appropriate is a matter which should be determined by the Full Court.

The CFMMEU is a recidivist contravenor 75 The ABCC is correct in describing the CFMMEU as a recidivist contravenor. He provided a table which indicated that, since 2003, the CFMMEU has been found to have contravened industrial legislation on some 165 occasions, with many of those occasions involving multiple contraventions. Subject to one or two qualifications which it is not necessary to address, counsel for the CFMMEU accepted that some 135 of these occasions occurred before the contraventions in May 2018 which are the subject of these proceedings. The CFMMEU has now been ordered on multiple occasions to pay substantial penalties. Despite that being so, the CFMMEU has not adduced evidence of any corrective action it has taken, such as providing instruction or training for its officials. The imposition of the penalties does not appear to have had any effect on its conduct. The impression one has is that the CFMMEU at least tolerates, and more likely condones, the conduct of the organisers which occurred in this case and that, in the past, it has regarded the penalties imposed by the Court as simply a cost of conducting its industrial affairs in the manner it chooses. As was stated by the Full Court in The Non-Indemnification Personal Payment Case at [23]: … It is difficult, if not impossible, not to come to the conclusion that the Union is prepared, when it suits it, to contravene the Act and, as here, seek to coerce employers to comply with its demands. Without evidence to the contrary, it is a natural inference that those officials of the Union … tolerate and facilitate this attitude and approach of contraventions of the Act at the choice and will of the Union. 76 I accept, however, that none of Mr Menon, Mr Taylor or Mr Cummins has a record of prior contraventions, so that reasoning is not applicable in their cases. Generally, an absence of prior contraventions is seen as evidence of good character and therefore mitigatory: Ryan v The Queen [2001] HCA 21, (2001) 206 CLR 267 at [30]-[31] (McHugh J) and at [68] (Gummow J); R v Liddy (No 2) [2002] SASC 306, (2002) 84 SASR 231 at [23] but not if advantage was taken of the person's good character to commit the instant offence. Counsel for the ABCC referred to Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338 at [51] in which, in the particular circumstances of that case, the absence of prior contraventions of a like kind was not regarded as mitigatory. However, it is generally accepted that a previously blameless life may be evidence of good character, and therefore mitigatory. The individual respondents are entitled to credit on account of their clean records.

Course of conduct 77 It was common ground that s 557 of the FW Act, which provides for two or more contraventions of certain kinds to constitute a single contravention, is not applicable in the present case. However, it is appropriate to have regard to the common law course of conduct principle. That principle was summarised by Owen JA in Royer v The State of Western Australia [2009] WASCA 139 at [22]: … At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences. 78 The judgment of Wells J in Attorney-General v Tichy (1982) 30 SASR 84 at 92-3 contains a more extensive statement of the principle. 79 The course of conduct principle has now been discussed in a number of authorities in the civil penalty context including: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59, (2019) 269 FCR 262 at [11]-[12] (Allsop CJ), [123]-[132] (Rangiah J); Ultra Tune Australia Pty Ltd v Australian Competition and Consumer Commission [2019] FCAFC 164 at [62]; Parker at [268]-[274]. 80 I take the principles applicable presently to be as follows: (a) the purpose of the principle is to ensure that, having regard to all the circumstances (both factual and legal), a contravenor is not penalised more than once for the same conduct; (b) in this way, the principle serves as a technique of analysis; (c) the application of the principle requires a careful evaluation of all the circumstances; (d) the principle does not require that two or more contraventions occurring in a single course of conduct be treated as a single contravention; (e) the principle does not have the effect that the maximum penalty for a single contravention becomes the maximum for all contraventions committed in the one course of conduct; and (f) the principle does not permit the Court to impose a single penalty in respect of multiple contraventions of a pecuniary penalty provision. Each contravention continues to attract its own separate penalty. 81 Counsel for the respondents submitted that each of Mr Menon's four contraventions arose out of a single course of conduct. The ABCC submitted that only the second and third of his contraventions should be characterised in that way. This was so, counsel submitted, because the first contravention was distinct, it having occurred at "a standalone toolbox meeting with the workers at the Site, during which [Mr Menon] made distinct comments about those workers' obligations to work under particular conditions and their entitlement to go home on full pay". The ABCC submitted that Mr Menon's fourth contravention was also distinct because it occurred in the course of his separate conversation with Mr Lucas and Ms Sayers and the character of the improper conduct was different. 82 Counsel for the ABCC accepted that both of Mr Taylor's contraventions of s 500 occurred in a single course of conduct. 83 Counsel for the respondents submitted that Mr Cummins' two contraventions should be regarded as having occurred in a single course of conduct, even though occurring on different days. The ABCC submitted that each of Mr Cummins' contraventions were distinct, having occurred on different days, being directed at different people, and involving conduct of a different character. 84 I consider that each of Mr Menon's contraventions should be characterised as having occurred in a single course of conduct. All of his contraventions occurred in a relatively short period on 14 May 2018 (between approximately 11.10 am and 1.15 pm). While the second and third contraventions occurred closer together, within about thirty minutes of each other, and the first and fourth contraventions occurred approximately one hour later, I do not regard that period as a sufficient basis on which to view the conduct as temporally separate and distinct. Each of the contraventions occurred during the exercise of a single right of entry onto the Site following Mr Menon forming the suspicion, reasonably, that contraventions of the WHS Act were occurring and each was a manifestation of Mr Menon's aim to have work on the Site cease. Although some of the contraventions have their own distinct elements, it would be artificial to regard each as a separate incursion into contravening conduct as would be the case, say, if each was unrelated. In my view, it is more realistic to regard Mr Menon's contraventions as having occurred in the course of his pursuit of his purpose of having the work on the Site stopped. The fact that some of his demands and threats were made in different places on the Site and to different persons, does not alter that circumstance. I note that Mr Menon's second and third contraventions (which the ABCC accepts occurred in a single course of conduct) involved, to an extent, demands and threats made to different persons, namely, Mr Ryan and Mr Moran. In my view, the ABCC's acknowledgement that Mr Menon's second and third contraventions and Mr Taylor's two contraventions occurred in a single course of conduct tended to undermine his submission that Mr Menon's first and fourth contraventions were separate and distinct. That is so even accepting the closer temporal proximity of Mr Menon's second and third contraventions and Mr Taylor's contraventions. So also does the ABCC's reliance on the composite conduct of Mr Cummins for his contraventions of s 500 on 14 May 2018. 85 Another matter pointing to there having been a single course of conduct by Mr Menon is that it is evident that each of he, Mr Taylor and Mr Cummins were pursuing a common purpose and that their respective contraventions on 14 May 2018 occurred in the pursuit of that common purpose. 86 Although there is to some extent a common substratum of facts to Mr Cummins' contraventions, I do not consider that they should be regarded as having occurred in a single course of conduct. In the first place, they were separated by a period of about 24 hours. Mr Cummins' conduct on 14 May 2018 was constituted by the manner in which he conducted himself while exercising his lawful right of entry. His conduct on 15 May 2018 was in a different context, namely, when Mr Cummins responded to a reasonable request that he provide a notice of entry so as to permit him a lawful entry onto the Site. Instead of doing so, Mr Cummins sought, by making a threat, to intimidate Ms Fryk into permitting him to enter the Site without providing such a permit. That threat was of a different character from those made on the previous day, was for a different purpose, and involved different action. 87 In the oral submissions, counsel for the respondents submitted that it is open to the Court to conclude that the contraventions of the CFMMEU on 14 May 2018 constituted by the conduct of each of Mr Menon, Mr Taylor and Mr Cummins occurred in a single course of conduct as each of those organisers was pursuing the same object, namely, the stopping of work on Site while the concerns about safety and the amenities were addressed. In support of this submission, counsel referred to Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038 in which O'Callaghan J accepted that the CFMMEU should be taken to have engaged in a single course of conduct constituted by the picketing conduct of two of its organisers. 88 The ABCC submitted that The NewCold Picket Case should be distinguished on its facts. I accept that there are factual differences between the two cases but that does not mean that the underlying principle is inapplicable. As counsel for the ABCC acknowledged, in this case, the CFMMEU had "deployed three of [its] organisers to go onto the site and engage in the conduct, ultimately, that they did". That view of the matter rather confirms that the conduct of the CFMMEU occurred in a single course of conduct by it. I will impose penalties on the CFMMEU on that basis. 89 For reasons which are similar to those given above in relation to Mr Cummins' conduct on 15 May 2018, I do not regard the contravention of the CFMMEU on 15 May 2018 as having occurred in the same course of conduct in which it engaged on 14 May 2018. 90 I note, again, that my acceptance that some of the contraventions occurred in a single course of conduct does not have the consequence that only one penalty is to be imposed or that the penalties to be imposed cannot exceed the maximum for a single contravention. Instead, it indicates that care will be necessary to ensure that the respondents are not penalised twice for aspects of their conduct which are common to two or more contraventions.

The pursuant of a legitimate industrial purpose 91 By way of mitigation of the contraventions of Mr Menon, Mr Taylor and Mr Cummins, counsel for the respondents emphasised aspects of their conduct on 14 May 2018 which were regular: each had showed his entry permit; each had provided a notice of entry under the WHS Act; each had signed the visitors' book; each had suspected reasonably a contravention of the WHS Act; and each engaged in the impugned conduct out of concern for the safety of the workers and the adequacy of the amenities on the Site. 92 I do not regard these matters as being mitigatory in any significant way. They do provide the context in which the contraventions occurred, but the fact that the organisers had conducted themselves in accordance with the law and in accordance with the Site requirements up until the time of the contravening conduct is hardly mitigatory. 93 Nor do I regard the fact that the respondents did reasonably suspect that there were matters of safety concern as being mitigatory. They could have addressed those safety concerns with civility, without engaging in foul-mouthed language, without making threats, and without making statements which were false or misleading. Their improper conduct arises from the way in which they chose to deal with the matters of concern. 94 My approach in this respect is similar to that adopted by Rangiah J in analogous circumstances in Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263 at [72]. His Honour then held that the respondents' coercive conduct was not mitigated by the fact that the conduct was directed to the pursuit of a legitimate industrial objective. 95 Counsel for the respondents referred to Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859 (Bromberg J) at [26]-[33]; Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934, (2018) 280 IR 173 (Jagot J) at [46]-[47]; Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 (Barker J) at [25]; and to The Agreed Penalties Case FC at [163]. However, on my understanding, regard was had in each of those cases to the purpose for which the conduct was undertaken for two purposes: first to indicate that the conduct was not aggravated by being arbitrary or capricious; and secondly as bearing upon the need for the penalties to reflect considerations of personal deterrence. I do not understand any of these authorities as indicating that the fact that the improper conduct occurred in the pursuit of a legitimate industrial purpose is mitigatory.

Other matters 96 The circumstance that Mr Menon's fourth contravention involved improper conduct to Mr Lucas and Ms Sayers who were acting in the course of their duties as WorkSafe Inspectors is an aggravating feature. Such officers should be able to discharge their duties without being subject to aggression or any form of intimidation: cf Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 at [144]-[145]. 97 The ABCC did not adduce any evidence that Sitzler had suffered actual financial loss as a result of the various s 500 contraventions. It seems improbable in the circumstances that it did so. There was undoubtedly some inconvenience and disruption to the activities of Mr Ryan and Mr Moran but I am not willing to infer that this would have been productive of economic loss. The short period of time in which the workers attended the toolbox meeting arranged by Mr Ryan on 14 May 2018 is unlikely to have produced a measurable loss of productivity. I do, however, take into account the affront to Mr Ryan, Mr Moran, Mr Lucas, Ms Sayers and Ms Fryk which the respondents' conduct must have caused. 98 There is no evidence of any contrition or regret by any of the respondents for their conduct. Apart from the formal admissions in the pleadings, there has been no acknowledgement by any of the respondents of the wrongfulness of their conduct. Absence of contrition or regret is not an aggravating factor but the respondents are not entitled to any leniency on this account. 99 The respondents are entitled to some credit for their cooperation in the proceedings. I refer in this respect to the extensive admissions in the amended defence and the manner of the conduct of the proceedings thereafter. The extent of the credit to which the respondents would be entitled would be greater if it was accompanied by genuine contrition and regret, but even in the absence of those factors, the respondents' cooperation has a utilitarian value in the facilitation of the course of justice. In particular, the ABCC and the community more generally have been spared the cost and delay which a trial of the ABCC's allegations would have necessitated. There will be some slight reduction in the penalties which would otherwise have been imposed on this account. 100 None of the individual respondents provided evidence of their financial circumstances, let alone evidence that they do not have the capacity to pay penalties of the order sought by the ABCC. Further, none of the individual respondents adduced evidence of other aspects of their personal circumstances which may be mitigatory.

The parties' submissions concerning the penalties 101 The ABCC submitted that penalties "in the medium range" should be imposed on Mr Menon in relation to his first, second and fourth pleaded contraventions and a penalty "in the low range" imposed in respect of his third. 102 In relation to Mr Taylor, the ABCC submitted that a penalty "in the medium range" should be imposed in respect of his first pleaded contravention and a penalty "in the low range" imposed in respect of the second. 103 In the case of Mr Cummins, the ABCC submitted that a penalty "in the medium range" should be imposed in relation to each of his contraventions. 104 Counsel for the respondents did not identify the individual penalties which he contended would be appropriate in each case. Instead, he submitted that the total penalties to be imposed on Mr Menon for his four contraventions should be "at the high end of the low range for one penalty"; that the total penalties imposed on Mr Taylor should be "at the middle of the low range for one penalty"; that the total penalties to be imposed on Mr Cummins should be "at the middle of the low range for one penalty"; and that the total penalties to be imposed on the CFMMEU should be "at the high end of the low range". 105 In the fixing of the penalties on the individual respondents, I have had particular regard to the relatively short duration of their improper conduct, the absence of loss or damage resulting from it, that their conduct, while serious, is not of the worst kind which the Court has seen in cases of the present kind and their clean records. I have of course also had regard to the matters addressed earlier in these reasons concerning the circumstances of their contraventions.

Mr Menon 106 It is convenient to address Mr Menon's contraventions in the chronological sequence in which they occurred. The third of the pleaded contraventions was the first in time, having been committed between 11.15 am and 11.45 am. It was constituted by Mr Menon's repeated demands that Sitzler shut the Site down when there was no obligation on it to do so. This contravention was serious because it involved repeated false and misleading statements over a period of approximately 30 minutes. Mr Menon's demands had the potential to be disruptive of productive work on the Site, had Mr Ryan acceded to them. Nevertheless, as noted above, the ABCC submitted that a penalty in the low range was appropriate. I impose a penalty of $2,800. 107 The next contravention of Mr Menon in chronological sequence is the second pleaded contravention. This was Mr Menon's statement to Mr Moran shortly after 11.45 am that Sitzler "would pay the price" if Mr Moran did not shut the Site and stop work. As this was a continuation of the conduct comprising the third contravention, Mr Menon is not to be penalised again for the demands he already made that Sitzler cease work. It is the making of the threat by way of giving force to the demand which constitutes the gravamen of this contravention. It should be viewed seriously. I impose a penalty of $3,000 after taking account of the place of this contravention in the course of conduct and to the mitigatory matters mentioned above. 108 The next contravention of Mr Menon in chronological sequence was his conduct towards Mr Lucas and Ms Sayers at about 12.40-12.45 pm. This too is to be viewed seriously having regard to the matters which I mentioned earlier. It was, however, a continuation of Mr Menon's purpose in seeking to have the Site closed and should not be regarded as a separate incursion into contravening conduct. I impose a penalty of $2,500. 109 The final contravention of Mr Menon in chronological sequence was his making of the Go Home Representation to the Site workers at around 1.15 pm. This false and misleading Representation to the workers had the potential, if heeded, to cause damage to Sitzler. It is fortunate for Mr Menon that it did not have that effect. I take into account that it was continuation of Mr Menon's earlier conduct and not a separate incursion into contravening conduct. I impose a penalty of $2,400.

Mr Taylor 110 The second contravention of Mr Taylor pleaded by the ABCC was in fact the first in time as it occurred shortly after the arrival of Mr Moran at the Site at around 11.45 am on 14 May 2018. It was constituted by Mr Taylor's statements to Mr Moran that "you need to shut the Site". This was a continuation of the conduct comprising Mr Menon's third contravention, albeit directed to Mr Moran. I impose a penalty of $2,200. 111 Mr Taylor's second contravention in chronological sequence followed a few minutes later when he told Mr Moran "you will pay the price if you don't shut the site". As is the case in relation to Mr Menon, this was improper conduct of a serious kind. After making allowance for the mitigatory matters mentioned above and for the place of Mr Taylor's actions in the course of conduct, I impose a penalty of $3,000.

Mr Cummins 112 As already noted, Mr Cummins' single contravention on 14 May 2018 was comprised of composite conduct, being his foul-mouthed language to Mr Moran and Mr Ryan after the Site walk at around 12.15 pm, his statement to Mr Lucas and Ms Sayers at around 12.40 pm that they needed to close the Site, and the loud and aggressive manner in which he spoke to Mr Lucas and Ms Sayers while standing close to them. A penalty of $3,500 is appropriate in his case. 113 As noted earlier, Mr Cummins' contravention on 15 May 2018 was of a different character. By making the Top to Bottom Threat in response to Ms Fryk's reasonable request that he produce his notice of entry, Mr Cummins paid little regard to the requirements for lawful entry. I take into account, however, that after only a few minutes, Mr Cummins did not persist with his attempt to enter the Site. In my opinion, a penalty of $2,800 is appropriate.

The totality principle 114 In my view, the totality principle does not require any reduction of the penalties which I have considered appropriate. I have reached that conclusion having regard to the discussion of the totality principle by Doyle CJ in R v E, AD [2005] SASC 332; (2005) 93 SASR 20: [37] The totality principle has been stated in terms that reflect slightly different aspects. The first aspect is that when an offender is sentenced for a number of offences, the court must ensure that "the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved" … The other aspect is that sometimes, although the individual terms of imprisonment imposed in respect of each of a number of offences will be appropriate, the aggregate of all of those sentences will become so "crushing" as to call for some reduction in the aggregate … I refer also to the remarks of Kirby J on this point in Postiglione at 340-341. As these statements of the principle indicate, it is a general principle that requires the court to assess the overall criminality involved, and to do so by reference to the aggregate sentence to be imposed. [38] In recent times there has been at tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed. (Citations omitted) 115 Because I have, by application of the course of conduct principle, endeavoured to avoid double punishment, I consider that the aggregation of the penalties is just and appropriate. That is particularly so in the case of Mr Menon as he persisted in his conduct over a period of about two hours. He had ample opportunity to reflect on the wrongfulness of his conduct over that period. 116 As the Court has not been provided with any evidence concerning the financial circumstances of the individual respondents, there is no basis upon which the Court can conclude that these penalties will be "so crushing" as to call for some reduction in the aggregate. Having reviewed the penalties, I do not regard the aggregate of the penalties imposed on each of the individual respondents as being disproportionate to their overall culpability.

The CFMMEU 117 The ABCC submitted that each contravention by the CFMMEU was "sufficiently grave" so as to warrant a penalty "in the very high range approaching the maximum" having regard to the CFMMEU's history of contraventions and the following: (a) the contraventions were antithetical to the right of entry regime established under Pt 3-4 of the FW Act and caused illegitimate disruption at the Site; (b) the conduct was serious, deliberate and without justification; (c) the CFMMEU has not demonstrated contrition or corrective action; (d) the CFMMEU is a recidivist offender; and (e) the CFMMEU is large, asset rich, and well-resourced, such that a small penalty risks being ineffective as a deterrent. 118 I accept those submissions but do not accept that they have the consequence that a penalty for each contravention should approach the maximum. That is because none of the CFMMEU's contraventions can realistically be regarded as being of the worst kind. That is so even when regard is had to the prior record of the CFMMEU. 119 The course of the CFMMEU's conduct occurred over a period of about two hours. While I accept that the seven contraventions on 14 May 2018 occurred in the course of single course of conduct, it has to be said that that course of conduct involved some persistence in improper conduct even though there were multiple opportunities for the CFMMEU, by its officials, to resile from the conduct. 120 The course of conduct comprised Mr Menon's repeated demands in the 30 minute period between 11.15 am and 11.45 am that Sitzler cease work, Mr Taylor's demand at 11.45 am that Sitzler close the Site, the "Pay the Price" threats by Mr Menon and Mr Taylor respectively at 11.45 am, Mr Cummins' conduct between 12.15 pm and 12.45 pm, Mr Menon's conduct towards Mr Lucas and Ms Sayers at about 12.40 pm, and Mr Menon's making of the Go Home Representation at about 1.15 pm. 121 While I accept that the fact that the single course of conduct on 14 May 2018 means that penalties should not be imposed on the CFMMEU as though each was a fresh incursion into contravening conduct and that there are some overlapping elements in its contraventions, the very persistence of the CFMMEU in the course of conduct indicates that its contraventions should be viewed seriously. This is reinforced by the fact that it sought by its course of conduct to achieve its objective of closing the Site by multiple means over an extended period. In addition, for the reasons given earlier, account is to be taken of the additional gravity of the conduct of the CFMMEU by reason of the increased culpability of its contraventions indicated by its long history of prior contraventions. 122 Accordingly, in relation to the seven contraventions of the CFMMEU on 14 May 2018, I impose penalties as follows: (a) The contravention constituted by Mr Menon's conduct between 11.15 am and 11.45 am (being the third contravention pleaded against Mr Menon) $35,000 (b) The contravention constituted by the second pleaded contravention of Mr Taylor being his demand at 11.45 am that Sitzler should shut the Site $25,000 (c) The contravention constituted by Mr Menon's conduct in making the Pay the Price Threat at 11.45 am $40,000 (d) The contravention constituted by Mr Taylor's making of the Pay the Price Threat at 11.45 am $30,000 (e) The contravention constituted by Mr Menon's conduct towards Mr Lucas and Ms Sayers at 12.45 pm $40,000 (f) The contravention constituted by Mr Cummins' conduct $35,000 (g) The contravention constituted by Mr Menon's making of the Go Home Representation at 1.15 pm $30,000 Total $235,000

123 The difference between the penalties for Mr Menon's third pleaded contravention and Mr Taylor's second pleaded contravention is attributable to the fact that Mr Menon made multiple demands over a period of about 30 minutes whereas Mr Taylor made only two statements in relatively close proximity to one another, and to the application of the course of conduct principle. 124 The difference in the penalties I would impose for the respective Pay the Price Threats of Mr Menon and Mr Taylor is attributable to the fact that both were made at about the same time and, in some respects, had overlapping elements. 125 In relation to the contravention of the CFMMEU constituted by Mr Cummins' conduct on 15 May 2018, I impose a penalty of $35,000. 126 The total of the penalties imposed on the CFMMEU is therefore $270,000. 127 I do not see any basis on which this aggregate amount should be reduced by reference to the totality principle. 128 All of the penalties are to be paid to the Commonwealth within 28 days. I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.

SCHEDULE OF PARTIES NTD 1 of 2019 Respondents Seventh Respondent: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

Building and Construction Industry (Improving Productivity) Act 2016(Cth)ss 5, 6

Fair Work Act 2009(Cth)ss 500, 512, 546, 550, 557, 793

Crimes Act 1914(Cth)s 4AA

ia Pty Ltd [2012] FCAFC 168, (2012) 207 FCR 178 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 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 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126; (2018) 265 FCR 208 Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 Eldridge v Bates [1989] SASC 1268; (1989) 51 SASR 532 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934; (2018) 280 IR 173 Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; (2019) 270 FCR 39 Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150 R v E, AD [2005] SASC 332; (2005) 93 SASR 20 R v Liddy (No 2) [2002] SASC 306; (2002) 85 SASR 231 R v McInerney (1986) 42 SASR 111 Royer v The State of Western Australia [2009] WASCA 139 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338 Ultra Tune Australia Pty Ltd v Australian Competition and Consumer Commission [2019] FCAFC 164 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (4)

Cases Cited (62)

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