BlueScope Steel Limited v The Australian Workers' Union

WIGNEY J: 1 On 19 October 2018, after a contested liability hearing, I found that the respondent in this proceeding, The Australian Workers' Union, had contravened two provisions of the Fair Work Act 2009 (Cth). Those two provisions were s 417, which effectively prohibits an employee organisation covered by an enterprise agreement from engaging in unprotected industrial action; and s 475(2), which prohibits an employee from asking an employer to make a payment to the employee in circumstances where the employer would contravene s 474 of the Fair Work Act if the payment was made. Section 474 of the Fair Work Act effectively prohibits an employer from making payments to employees in relation to the duration of any unprotected industrial action engaged in by the employees. Sections 417(1) and 475(2) of the Fair Work Act are both civil remedy provisions. 2 Following the finding that the Union had contravened ss 417 and 475(2) of the Fair Work Act, the proceeding was listed for hearing to determine the appropriate pecuniary penalties and the amount of any compensation payable to the applicant, BlueScope Steel Limited, pursuant to s 546 of the Fair Work Act. The parties have, however, agreed on the amount of the penalties which they submit would be appropriate in the circumstances. The parties have also agreed that the Union should be ordered to pay the penalty to BlueScope pursuant to s 546(3)(c) of the Fair Work Act and agreed on the amount of compensation that the Union should be ordered to pay BlueScope arising from the contraventions. 3 The Court's role and duty when confronted with a civil penalty case where the parties have agreed on the pecuniary penalty is not to simply "rubber stamp" that agreed penalty. That said, subject to the Court being satisfied that the proposed penalty is an appropriate remedy in the circumstances, and is consistent with principle, it is accepted that it is "highly desirable in practice" for the Court to impose the proposed penalty: see Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at [58] (Commonwealth v DFWBII). 4 The proposed penalty will be consistent with principle if it falls within the range of penalties that the Court could, in the exercise of its discretion, impose having regard to the facts and circumstances of the contravention and the legal principles that apply to the fixing of penalties for contraventions of civil penalty provisions: Commonwealth v DFWBII at [47]-[48]; referring to NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 1 FCR 285 and Minister for Industry, Tourism and resources v Mobil Oil Australia Pty Ltd [2004] ATPR 41-993. The legal principles that apply to the fixing of pecuniary penalties are well settled and do not need to be recited. They are relevantly summarised in Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No. 3) [2018] FCA 1395 at [31] - [44]. 5 For the brief reasons that follow, I accept that the agreed pecuniary penalties proposed by the parties are appropriate penalties and consistent with principle. I also agree that it is appropriate to order that the penalties be paid to BlueScope.

The s 417 contravention 6 The facts and circumstances which gave rise to the s 417 contravention of the Fair Work Act are set out in detail in the liability judgment: BlueScope Steel Limited v Australian Workers' Union [2018] FCA 1574. It is unnecessary to rehearse that detail. It is sufficient to make the following brief points. 7 First, the unprotected industrial action consisted of a meeting organised by the Port Kembla Branch Secretary of the Union, Mr Wayne Phillips, and the Port Kembla Branch President, Mr Branko Gorgievski. The meeting occurred between 6.30 am and 8.03 am on 26 May 2016. It is self-evident that the duration of the relevant industrial action was accordingly fairly brief. 8 Second, Mr Gorgievski and Mr Phillips knew that the meeting they organised would constitute unprotected industrial action. They proceeded to organise the meeting despite that knowledge. 9 Third, in organising the meeting, Mr Gorgievski and Mr Phillips were nevertheless well intentioned. They considered that the meeting was necessary to discuss and attempt to resolve, various grievances which the employees had with management and to "calm things down" in the workforce. That said, given their knowledge of the unlawfulness of the meeting, Mr Gorgievski and Mr Phillips plainly should have explored the possibility of holding the meeting at a time that would not infringe the legislation. 10 Fourth, Mr Gorgievski and Mr Phillips did not anticipate that the employees would call for and vote in favour of a strike at the meeting. When that occurred, they spoke against the proposed strike and actively sought to dissuade the employees from taking that action. 11 Fifth, the industrial action caused BlueScope loss and damage. The action was not, however, calculated by the Union to cause loss and damage. Moreover, the Union has agreed to pay $55,000 to BlueScope to compensate it for its loss and damage. 12 The maximum penalty applicable to a contravention of s 417 of the Fair Work Act at the relevant time was $54,000: see ss 539(2), 546(2)(b) of the Fair Work Act, the definition of "civil penalty provision" and "penalty unit" in s 12 of the Fair Work Act and s 4AA(1) of the Crimes Act 1914 (Cth). 13 The agreed penalty proposed by the parties in respect of the s 417 contravention is $15,000. 14 In my view, a penalty of $15,000 for the Union's contravention of s 417 is within the range of penalties that the Court could properly impose having regard to the relevant principles. 15 Having regard to the five points just highlighted, it would be fair to characterise the Union's contravention as being within the low to mid-range of contraventions of s 417 of the Fair Work Act, in terms of objective seriousness. 16 As for the Union's relevant subjective circumstances, there are perhaps two key considerations. 17 The first is that the Union has been found in the past to have contravened s 417 of the Fair Work Act on one occasion and similar provisions in other industrial or workplace legislation on other occasions. That said, it could by no means be concluded that the Union has an extensive history of contravening s 417 of the Fair Work Act or similar provisions of industrial legislation. In its submissions, BlueScope identified a number of previous judgments concerning the Union's past contraventions and outlined some of the relevant facts and circumstances of those cases. It is unnecessary to refer to those judgments. It suffices to say that some of the past contraventions were committed some time ago and some involve materially different and distinguishable facts and circumstances. 18 The second relevant subjective consideration is that the Union made appropriate admissions in respect of the organisation of the meeting. The central issue in the liability hearing was whether the Union organised or was knowingly concerned in the strike action by the employees that followed the meeting. That issue was resolved in favour of the Union. 19 In any event, the Union's approach to the s 417 contravention arising from its organisation of the meeting showed that it appreciated and acknowledged its wrongdoing and, to that extent at least, revealed some degree of contrition on the part of the Union. The Union's willingness to agree on the amount of the penalty, as well as its willingness to agree to pay compensation to BlueScope, is also reflective of a degree of contrition on the part of the Union. Its approach to penalties and compensation obviated the need for a contested and potentially lengthy hearing in relation to those matters. 20 I should note, finally, that specific and general deterrence are primary and critical considerations to have regard to in fixing civil penalties. Having regard to the particular facts and circumstances of this contravention, however, the need for the penalty to provide specific deterrence in this case is not great, even having regard to the Union's past contraventions. Of course, it remains necessary to have regard to the need for general deterrence. 21 In all the circumstances, in my opinion, a penalty of $15,000 adequately and appropriately reflects the objective seriousness of the contravention and the Union's subjective circumstances. It is certainly within the range of penalties that a principled exercise of the Court's discretion could produce in all the circumstances.

The s 475(2) contravention 22 The facts and circumstances that gave rise to the s 475(2) contravention are, again, discussed at length in the liability judgment. The following relevant points should be noted. 23 First, the contravention did not involve a wilful or deliberate flouting of the section. Mr Phillips, who was the Union officer whose actions gave rise to the contravention, was aware that it was unlawful for him to ask BlueScope to pay the employees in respect of the duration of the relevant industrial action. Whilst his words and actions were ultimately found to have given rise to a contravention, it may fairly be accepted that he framed his request in a way that he thought may not breach the prohibition. He certainly did not make threats or unduly forceful demands in relation to the payment or payments. 24 Second, Mr Phillips was, again, well-intentioned. His request concerning payments was made with the apparent intention of calming things down and securing a normal return to work, both for the benefit of the employees and, importantly, for BlueScope. 25 It may accordingly be accepted that the objective seriousness of the offending conduct in all the circumstances was at the very low end of the range or spectrum of s 475(2) contraventions of the Fair Work Act. 26 As for the Union's subjective circumstances relevant to this contravention, while the Union did not admit the contravention, it did not significantly challenge the evidence relating to it, which largely comprised evidence of a conversation or conversations engaged in by Mr Phillips. The Union's unsuccessful defence ultimately hinged on what was submitted to be a different construction or interpretation of the words spoken by Mr Phillips. 27 The Union has been found to have contravened a provision similar to s 475(2) of the Fair Work Act on one occasion in the past. That contravention, however, occurred about 10 years ago and the fairly modest penalty imposed in respect of it suggested that it involved a fairly minor contravention. 28 It should again be noted that the particular facts and circumstances of this contravention do not suggest that the need of the penalty to secure specific deterrence is particularly great. The need to fix a penalty which provides for general deterrence nevertheless remains of significance. 29 The maximum penalty applicable to the s 475(2) penalty is, again, $54,000. The agreed penalty proposed by the parties is $5,000. 30 Having regard to the objective seriousness of the offending conduct and the subjective circumstances to which I have referred, in my opinion a penalty of $5,000 is within the range of appropriate penalties that a proper application of principle could produce.

Compensation 31 As earlier noted, the Union agreed to pay $55,000 compensation arising from the contraventions. In my opinion, it is appropriate to make an order requiring the Union to pay that amount of compensation, particularly given the parties' agreement.

Declaratory relief 32 Finally, the parties agree that the court should make declarations in relation to the contraventions. The relevant principles that apply to declarations relating to contraventions of legislative provisions are well known and do not need to be repeated: see De Martin & Gasparini at [74]-[76] and the cases there cited. In my opinion, those declarations should be made.

Conclusion and disposition 33 A declaration should be made in the following terms: (1) The respondent contravened s 417 of the Fair Work Act 2009 (Cth) by organising industrial action between 6.30 am and 8.03 am on 27 May 2016 by employees of the applicant whose employment was regulated by the BlueScope Steel Springhill Workplace Agreement 2015; and (2) The respondent contravened s 475(2) of the Fair Work Act by asking the applicant on 7 May 2016 to make a payment to its employees and get industrial action on 27 May 2016 which, if would made, have contravened s 474 of the Fair Work Act. 34 The respondent is to pay a pecuniary penalty of $15,000 in respect of its contravention of s 417 of the Fair Work Act and $5,000 in respect of its contravention of s 475(2) of the Fair Work Act. Pursuant to s 546(1) of the Fair Work Act, the penalties are to be paid to the applicant in the amount of $55,000 within 28 days of the making of these orders. There be no order as to costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.