BHP Steel (AIS) Pty Ltd v CFMEU

1 On 21 November 2000, for the reasons I then gave, I made orders, amongst others, declaring that the Union had committed certain breaches of the order made by the Commission, specifically: (1) that the Union take any and all steps necessary and available under its Rules to ensure that the relevant employees comply with the order (par 3.3); and (2) that the Union supply a copy of the order to each of those employees (par 5.1). 2 It will be recalled that, by par 3.1 of the order, the employees "must immediately cease and refrain from engaging in industrial action …". 3 The maximum penalty that may be imposed under s 178(1) of the Act for a breach of a term of an order is $10,000 (s 178(4)(a)(ii)). 4 BHP seeks a penalty in respect of each of the breaches found. BHP submits that the two breaches should be treated separately for the purpose of penalty, contending that s 178(2) operates only in respect of two or more breaches of the same term of an award or order. 5 By s 178(2) it is relevantly provided that, for the purposes of s 178, where: (a) two or more breaches of a term of an order are committed by the same organisation; and (b) the breaches arose out of a course of conduct by the organisation the breaches shall be taken to constitute a single breach of the term. 6 I accept BHP's submission, which accords with the course of authority (see Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503 per Keely J; Masters v Highway One Pty Ltd (1990) 33 IR 1 at 3-4). In the present case, as a matter of form at least, par 3.3 and par 5.1 are separate and distinct terms. I propose to approach the question of penalty accordingly. 7 BHP further submits, and I accept, that there was no time in the present matter for it to seek injunctive relief. On the other hand, the Union submits, and I accept, that the short duration of the stoppage ought now to be taken into account. 8 The Union further submits, and I accept, that, in any event, and accepting that the principle of "totality" may not have the same force as in the case of a fine, as opposed to imprisonment (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 per Kirby P at 704), the breaches of pars 3.3 and 5.1, although distinct in form, in truth and in substance arise out of the same single course of action. In such a case, it is appropriate in the exercise of fixing penalty, to have regard to the interlocking relationship between such breaches (see Transport Workers Union of Australia v Glynburn Contractors (Salisbury) Pty Ltd (1991) 37 IR 313 per Lee J at 314). At the same time, I regard the breaches as serious. No attempt was made by the Union to explain, let alone justify, why no step was taken by it to comply with the Order. Taking into account the circumstances that, in essence, a single action is involved here, and upon applying the totality principle to an appropriate extent, I am of the view that penalties of $2,000 (par 3.3) and $200 (par 5.1) ought to be imposed. I will further order that the penalty be paid to BHP (see s 356). ORDERS 9 I make the following orders: