The section 556 issue
9 As noted, s 556 provides:
If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.
10 The respondents contend that by virtue of this provision the Court can impose only one penalty in respect of one of the three civil penalty provisions and not a separate penalty in respect of each contravention.
11 In Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367, Jessup J at [36]-[40] dealt with the application and operation of s 556. His Honour did so having just found, at [33], that a penalty of $3,500 was appropriate in respect of a contravention of s 417(1) of the FW Act [by the sixth respondent, Mr Sharp]. His Honour then turned, at [35], to the Australian Workers' Union's contraventions of the same provision, which his Honour considered should be met with a penalty of $20,000. At [36], he then said he needed to next consider the contraventions of s 421(1) of the FW Act. That is when s 556 became relevant.
12 His Honour said, at [36], that:
The question arises whether, having imposed a penalty on a particular respondent for his or its contravention of s 417, the court is prevented by s 556 from imposing a separate penalty for his or its contravention of s 421.
13 His Honour then, at [37], made reference to the predecessor provision of s 556 in the former Workplace Relations Act 1996 (Cth) and noted that neither that provision, nor s 556, had been the subject of any judicial examination in any context that would yield useful results for the present occasion. His Honour in particular commented that the Explanatory Memorandum for the Bill which introduced the predecessor provision, was "unrevealing" as to how the section was intended to be applied in the kind of problematic situation which confronted his Honour.
14 His Honour, at [38], observed that the problem has "two dimensions". He said the first arises in what might be described as the simple case of two or more provisions having been contravened by the same conduct. He said that looks as though it ought to attract the operation of s 556, although counsel for the applicant before him submitted that the section operates only where the "constituent elements" of each contravention are the same. For example, industrial action taken in contravention of s 417(1) and s 421(1) did not involve the same elements, on that submission. It was contended that under s 417(1), but not under s 421(1), it was an element that the relevant enterprise agreement be within term. Under s 421(1), but not under s 417(1), it was argued, it was an element that an order by the Commission proscribing the industrial action had been made. Thus, it was contended, it could not be said that the penalty for which the FW Act provided related to the same "particular conduct" in each case.
15 His Honour considered, at [39], that it was "unlikely" that the draftsman had such a limited operation in mind when s 556 was drafted. He doubted that it was contemplated that there would be "two or more provisions which defined contravening conduct in terms that involved precisely matching elements". He said he was not aware of any such situation and counsel for the applicant drew his attention to none.
16 In light of that analysis, Jessup J then considered, at [40], that the "better" view was as follows:
The better view is that the reference to 'particular conduct' in s 556 is to what the person actually did, with all of its attributes and in its whole context. If that conduct gives rise to liability to penalty under two or more provisions, the section is, in my view, engaged. In the present case, the conduct of the workers who took the industrial action attracted liability under s 417(1) and under s 421(1). It is true that, additionally to that conduct, there were adjectival elements the presence of which were necessary ingredients of the provisions respectively, and that these elements differed as between the two (the in-term agreement under s 417(1) and the Commission's order under s 421(1)), but, as it happened, both were in fact present on 31 March 2014 and both gave legal consequences to what the workers actually did. In my view, s 556 would stand in the way of penalties being imposed on the workers themselves under both sections, and the same applies where others, such as the organisers, were deemed to have contravened because of their involvement in that very conduct.
17 His Honour then considered the "second dimension" of the problem, as he saw it. He said this arose in the context of the case before him, because of contraventions of s 417(1) in which organisers were involved were not discrete ones which occurred on each of three days. They were "course of conduct" contraventions, the result of the operation of s 557 of the FW Act. His Honour said the "particular conduct" which gave rise to those conventions was spread over the three days. The question arose whether, at the point of considering the imposition of penalties for contraventions of s 421(1) on one of the days, the "particular conduct" to which those contraventions related had already been subject to penalty under s 417(1). In his Honour's view, expressed at [42], the answer was in the affirmative. The conduct of the workers on the single day and the organisers' involvement in that conduct had already been the subject of penalty under s 417(1), as part of a course of conduct. His Honour considered that was all that was required by s 556.
18 His Honour then concluded, at [43], that it followed that the imposition of penalties for the respondents' contraventions of s 421(1) of the FW Act was "prevented" by s 556.
19 In Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 White J also dealt with the operation of s 556, commencing at [54].
20 At [55], his Honour said that the effect of s 556 was to "preclude" the imposition of pecuniary penalties for contraventions of two or more civil remedy provisions in respect of the same "particular conduct". His Honour said that its application extends to contraventions of multiple provisions in the FW Act itself, referring to Esso Australia Pty Ltd v Australian Workers' Union (2016) 245 FCR 39; [2016] FCAFC 72 at [210] (reversed on appeal in part but not by reference to s 556, see Esso Australia Pty Ltd v Australian Workers' Union (M185/2016); Australian Workers' Union v Esso Australia Pty Ltd (M187/2016) (2017) 350 ALR 404; [2017] HCA 54).
21 His Honour noted, at [56], that Jessup J in The Australian Paper Case (No 2) had rejected a submission that s 556 operated only when the "constituent elements of each contravention are the same". White J referred to what Jessup J had said at [40], as set out above.
22 White J, however, rejected a submission that s 556 meant that only one penalty could be imposed for multiple contraventions of the same provision. His Honour said, at [61], that s 566 does not have any operation in relation to multiple contraventions of the same provision in the FW Act, that being a subject matter addressed in s 557.
23 Similarly, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) [2018] FCA 163 at [23]-[28], Tracey J, by reference to The Australian Paper Case (No 2) considered that s 556 is "enlivened" even if the constituent elements of the contraventions are not the same. His Honour said that:
What is critical is that the contraventions arise out of the same particular conduct by a respondent.
See also Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Case) (No 3) [2018] FCA 564 at [61]-[64].
24 The Commissioner submits that these authorities do not stand for the proposition for which the respondents presently contend, and in the event that the Court finds that they do invites the Court to find that they are plainly wrong and should not now be followed.
25 The Commissioner submits that Jessup J failed to give due weight to the expressions "particular conduct" and "in relation to that conduct", such that s 556 only operates where the "constituent elements" of two relevant contraventions are the same. He develops the constructional argument in the following way:
The language of s 556 contemplates that the section will only be engaged if "particular conduct" that has caused a contravention of a civil remedy provision gives rise to the contravention of another law of the Commonwealth "in relation to that conduct".
Hence, the section is not engaged if the two civil remedy provisions have different elements that are required to be made out in order to establish a contravention of the applicable provisions.
To the extent there is a different element that is required to be established before a particular contravention is made out, then it cannot be said that it is the same "particular conduct" that has triggered a liability in respect of the two civil remedy provisions.
To give s 556 an application so that the Court is restricted to imposing only one penalty in respect of "conduct" where that conduct has different aspects or elements that trigger contraventions of two or more laws of the Commonwealth would be to give s 556 an operation that has never been recognised in respect of the common law operation of the notion of "double jeopardy".
26 The Commissioner further develops the argument, partly by a reference to the subheading to s 556, "Civil double jeopardy" and contends that the purpose of the provision is simply to confirm that the common law principle of double jeopardy that has developed within the criminal law is also to be applied in respect of civil remedy provisions. Reference is made in this regard to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth), where, at [2187], it is said in respect of cl 556:
This clause applies the double jeopardy principle to pecuniary penalties under the Bill. Under the clause, where a person is ordered to pay a pecuniary penalty under the Bill in relation to particular conduct, the person is not liable to pay a pecuniary penalty under another law of the Commonwealth relating to the same conduct. (Emphasis added.)
27 The Commissioner submits there is no suggestion in the Explanatory Memorandum or the Explanatory Memorandum to the predecessor of the provision in the former Workplace Relations Act that the double jeopardy principle developed within the criminal law is to be applied in a "broader way" than has been recognised by authority in the past.
28 The Commissioner submits that the common law principle of double jeopardy is to ensure that a person does not suffer "double punishment" for what is the same act. See Freiberg A, Fox & Freiberg's Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters (Professional) Australia Limited, 2014) p 212; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40].
29 The Commissioner submits that to the extent there is an overlap in respect of conduct that may be an element of more than one offence, that overlap should be reflected in the sentences imposed in respect of the offences in question.
30 The Commissioner says to the extent that it could be said in respect of two offences that they, as a matter of common sense (as discussed in Pearce at [42]) have the same features, and thus the one conduct has triggered a liability in respect of both offences, the double jeopardy principle will be applicable. It avoids double punishment.
31 The Commissioner submits, however, that if two offences, as a matter of common sense, have distinct elements it cannot be said that the one conduct has caused the contraventions of both offences. Two punishments should be imposed. Nonetheless a sentencing court will have regard to the overlap when fixing sentences and this is usually done in the criminal sphere by some allowance being made for the cumulative serving of sentences.
32 The Commissioner submits that the full criminality of conduct is what is to be punished and that objective should be seen as applicable in the operation of s 556.
33 If s 556 is construed in the manner that the respondents contend, the Commissioner says, the full wrongdoing of the contravener will not be addressed by the penalties fixed.
34 Finally, the Commissioner submits there is no reason why s 556 should be construed in a way different from the common law understanding of the double jeopardy principle, as seems to have been done in The Australian Paper Case (No 2).
35 The Commissioner submits that each of ss 346(a), 348 and 500 of the FW Act have separate and distinct features that warrant the imposition of more than one penalty confined to solely one civil remedy provision.
36 The Commissioner submits s 500 is confined to conduct of a permit holder exercising rights under Pt 3-4. It is contravened if the permit holder acts "in an improper manner". The intention of the permit holder to act in an improper manner is not a necessary element. See Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15 at [55]. Furthermore, there is no requirement for any person to suffer an adverse impact as a consequence of the permit holder acting in an improper manner.
37 In contrast, the Commissioner submits s 346(a) is directed to a person taking "adverse action" because another person, as applicable in this case, is not a member of an industrial association. Central to this provision is the person having a proscribed intent when taking the action in question.
38 Furthermore, the action must come within the meaning of "adverse action" in s 342. In this case, this was found to involve taking action to prejudice a person in their employment, see s 342, Item 7(b) (liability judgment at [126]).
39 Thus, the Commissioner submits, the type of conduct that would trigger a liability under s 500 is not the same conduct that has caused a contravention of s 346 in this proceeding. This must be the case as both sections have quite separate and distinct elements that are required to be made out.
40 In respect of s 348, the Commissioner contends the central thrust of the provision is as to the intent of the relevant person. The focus of the section is to take or threaten to take action "with the intent to coerce" the other person "to engage in industrial activity". In this case, the relevant industrial activity was to become involved in an industrial association. This section is clearly quite distinct in its elements from s 500 and also has distinct mental elements to s 346(a).
41 The Commissioner thus submits that the Court is not prevented by the operation of s 556 from imposing separate penalties in respect of each contravention by the respondents of ss 346(a), 348 and 500 of the FW Act. In that regard the Commissioner withdraws a concession made earlier that s 556 had application in respect of s 346(a) and s 348. He contends the Court has the power to impose a separate penalty in respect of each contravention.
42 Nonetheless, the Commissioner accepts, having regard to the principle of "double punishment", the level of overlap in respect of the contraventions should be given appropriate weight when fixing penalties in respect of these contraventions. In oral argument, the question of totality in imposing penalties was also recognised as being relevant in this regard.
43 At the penalty hearing, counsel for the CFMEU addressed the s 556 issue. Counsel for Mr Upton also made oral submissions but was given leave to supplement them with additional written submissions, which were subsequently filed.
44 The respondents, in effect, submit that the decision in The Australian Paper Case (No 2) was not plainly wrong and the Court should follow the decision.
45 Attention is drawn to what Jessup J said, at [40], of The Australian Paper Case (No 2) concerning the expression "particular conduct", namely:
… what the person actually did, with all of its attributes and in its whole context.
46 Mr Upton further submits that the expression "in relation to particular conduct", used in s 556, does not require limiting its application to penalty provisions with the same elements.
47 Mr Upton submits that the Commissioner fails to give sufficient weight to the ordinary grammatical meaning of the whole expression "in relation to particular conduct" when construing s 556 and contends that because of the employment of the words "in relation to" the whole phrase suggests that what is required is some connection, association, or relationship between the "particular conduct" and the imposition of a pecuniary penalty under two or more penalty provisions. Thus, the phrase "does not suggest a further examination of whether there are differing attendant/adjectival elements required to establish a contravention of those provisions".
48 In any event, Mr Upton further submits that the expression "double jeopardy" is not always used with a single meaning, as discussed in Pearce at [40] and following, and it follows that the Commissioner's submission that Jessup J's construction of s 556 is one that has never been recognised in respect of a criminal law notion of double jeopardy is wrong.
49 The CFMEU maintains its submission that by reason of s 556 only a single penalty can be imposed on it for the three contraventions found against it.
50 Counsel for the CFMEU submits in construing s 556, the Court should be cautious of drawing inferences from the common law and from legislation in other States.
51 Counsel also submits that the Court should be careful of not falling into the trap of, in effect, describing the same conduct in a different way to come to a conclusion that a particular contravention found involves different conduct from the conduct that constituted the contravention of another provision.
52 In particular, counsel submits that the CFMEU accepted that one of the elements of the s 500 breach was that Mr Upton needed to be a permit holder. That constitutes a question of status, and not conduct, and so is not a differentiating conduct factor for the purposes of the application or non-application of s 556. By taking that approach, the Court would avoid semantics in the operation of s 556.
53 Indeed, counsel for the CFMEU submits that a sensible approach to the imposition of penalties under the FW Act requires a consideration of conduct as "part of one undifferentiated conduct". He submits that that was the case run against the respondents.
54 In counsel's submission, the same conduct is involved in each contravention - whether the unlawful statements which ground the contravention of s 346(a); or the unlawful statements that grounded the contravention of s 348; or the finding of acting in an improper manner in contravening s 500.
55 In counsel's submission it would be an overly technical approach somehow to split the difference between the various elements and "put dollar values" on particular elements, rather than just looking at the conduct as a whole and imposing a single penalty, taking into account various factors that are involved in the conduct.
56 I should note at this point, that counsel for the CFMEU also dealt with the earlier submission of the Commissioner, made before the concession was withdrawn, that s 556 did apply to the imposition of penalty for contraventions of s 346(a) and s 348, and that coercion was a more serious type of contravention than others when it came to selecting the "lead" contravention. By reference to what Tracey J said in The Quest Apartments Case, counsel submitted that there was no authority to support the Commissioner's proposition that a contravention of s 348 should per se be treated as being more serious than contraventions of other provisions, and that nothing turned on such a distinction because the legislature has attached the same maximum penalties to each of s 346 and s 348. They should be treated as equally serious.
57 Counsel, however, accepted that objectively, in a particular case, some contravening conduct - including that of coercion - may be judged to be more serious than other contravening conduct.
58 While the Commissioner has contended that the holding of Jessup J in The Australian Paper Case (No 2) should be considered plainly wrong and not applicable in the case of the contraventions found here, I consider that what Jessup J said in that case does stand for the proposition that the respondents contend, and that it is not plainly wrong.
59 I accept that the line of argument put to me on behalf of the Commissioner was not rehearsed before Jessup J, but that does not make his Honour's dicta and application of s 556 plainly wrong.
60 I recognise that it is open to argue that the expression "particular conduct" may require further identification of the "elements" of the conduct for which Parliament has created a civil liability offence in respect of which penalties must be imposed.
61 However, it is equally open to argue that the expression is wider than that, being "in relation to particular conduct". I consider the use of the words "in relation to" would appear to be of some significance and to have the effect that Jessup J found s 556 has in a case such as the present.
62 In any event, if one focuses on the expression "particular conduct", I am not satisfied that the conduct involved in the contraventions of ss 346(a), 348 and 500 in this case, is not the same particular conduct for the reasons offered by Jessup J at [40] of The Australian Paper Case (No 2). It may be said therefore that the particular conduct in each of the three contraventions relates to the particular conduct of the other two.
63 I do not consider in these circumstances The Australian Paper Case (No 2) was plainly wrong.
64 For those reasons, I would apply s 556 in this case so that only one penalty should be imposed in respect of the three contraventions.
65 I do not accept the submission that either s 500, or s 348, or s 346(a) should in some conceptual theoretical sense be accorded priority status as the lead penalty offence. In my view, the Court should consider the seriousness of the contravening conduct and determine for itself, objectively on the facts, in respect of which contravention the primary penalty should be imposed.