Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner

1. The appeal is allowed.
2. Orders 7 and 10 of the orders made below on 6 June 2019 are set aside.
3. There be no order as to the costs of the appeal.
4. The appeal be otherwise dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The appeal concerns admitted contraventions of ss 499 and 500 of the Fair Work Act 2009 (Cth) ("FW Act") by the second appellant ("Hassett") and derivative and admitted contraventions of those provisions by Hassett's employer, the first appellant ("CFMMEU"). The only aspect of the Amended Notice of Appeal which it is necessary to address is that stated in ground 1, that the primary judge erred in construing s 556 of the FW Act in: (i) holding that it did not apply in circumstances where the conduct constituting Hassett's and the CFMMEU's contraventions of s 499 of the FW Act on 5 June 2017 was a component of the conduct encompassing their contraventions of s 500 of the FW Act on 5 June 2017; and (ii) failing to hold that, if the court imposed a penalty for Hassett's and the CFMMEU's s 499 contravention on 5 June 2017, that the conduct constituting that contravention was unable to be considered in imposing a penalty for the s 500 contravention. 2 Section 499 of the FW Act relevantly provides: Occupational health and safety requirements A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises. 3 Section 500 of the FW Act relevantly provides: Permit holder must not hinder or obstruct A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner. 4 Section 556 of the FW Act relevantly provides: Civil double jeopardy 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. 5 By an Amended Notice of Contention, the respondent has sought to raise a matter not argued before the primary judge, namely that the application of s 556 of the FW Act is informed by the common law principle of double jeopardy, and that the provision is only engaged when the underlying wrongful conduct of two contraventions is the same, and that here, it was not. A further new argument dealt with later in these reasons was raised orally on the appeal. We grant the respondent leave to file the Amended Notice of Contention out of time and further, on the basis that it is expedient in the interest of justice to do so, we grant leave for the respondent to raise and rely upon the contentions not relied upon before the primary judge. 6 The relevant facts can be shortly stated. The respondent made allegations to the effect, and the appellants admitted, that on 5 June 2017, whilst in attendance at a construction site in Devonport, Tasmania: (i) Hassett climbed on a crane whilst it was in operation; (ii) Hassett refused a request of the occupier at the site to get off the crane (which request was reasonable because it was unsafe to be on the crane whilst it was being operated - that conduct is defined in the Amended Statement of Claim as the "5 June OHS Request"); and (iii) Hassett used insulting language and engaged in abusive behaviour. 7 By reason of the conduct in (i), the appellants were found to have contravened s 499 of the FW Act. By reason of the conduct in (i), (ii) and (iii), the appellants were found to have contravened s 500 of the FW Act. 8 The appellants contended before the primary judge that because Hassett's conduct that established the contravention of s 499 (refusing the reasonable request to get off the crane) was also an element of the contravention of s 500, s 556 applied and only one penalty could be imposed on each of the appellants in relation to that particular conduct. 9 The primary judge rejected that contention. At [48]-[50] of his Honour's reasons for judgment, the primary judge referred to the reasoning of Tracey J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1211 at [40]-[43], and in essence, concluded that the conduct constituting the contravention of ss 499 and 500 was not the same conduct for the purposes of s 556 because of the more expansive nature of the conduct constituting the contravention of s 500. 10 For the following reasons, and with respect to the primary judge, we have concluded that his Honour erred. 11 There are three issues to address. 12 The first is whether the primary judge was correct to construe s 556 as only being engaged where there is a complete overlap between the conduct which constitutes each relevant contravention. On this argument, conduct is used as the primary judge construed it as meaning what the person did; that is, the physical acts or omissions involved. 13 The respondent's contention is that significance needs to be given to the word "particular" in the phrase "particular conduct" and that the use of "particular" supports the contention that "conduct" whenever used in s 556, is necessarily referring to the same conduct. To that point we would agree. The word "particular" in s 556 is used to reinforce that the conduct being addressed by s 556 is the same conduct throughout. However, what the respondent suggests is that when s 556 uses that expression, it means all of, or the whole of, the conduct in respect of which "a person is ordered to pay a pecuniary penalty under a civil remedy provision". 14 We disagree. Commonly and as is the fact in this case in relation to the contraventions of s 500, contravention of a civil remedy provision may be constituted by a range of conduct made up by a number of different acts or omissions. When a pecuniary penalty is imposed for a contravention, each of those acts or omissions involved in the contravention will be the subject of the pecuniary penalty if a pecuniary penalty is imposed. So much is recognised by the phrase "in relation to" in s 556. The purpose of that phrase is to make it clear that the provision is addressing "particular conduct" that is the subject of the penalty imposed, and not necessarily all of or the whole of the conduct for which the penalty was imposed. Where that particular conduct is the subject of a pecuniary penalty, s 556 requires that that particular conduct not be the subject of a further pecuniary penalty. 15 As is apparent from the primary judge's reasons, his Honour construed s 556 as though "particular conduct" meant the whole of the conduct the subject of a contravention and a consequent pecuniary penalty. It was because the whole of the conduct relevant to the s 500 contravention was larger or more expansive than the conduct the subject of the s 499 contravention (Hassett's refusal to get off the crane), that his Honour concluded that s 556 was not engaged. In that respect, his Honour erred. 16 Hassett's refusal to get off the crane was relevantly the "particular conduct" for s 556 purposes. That particular conduct was part of and was subsumed by, the whole of the conduct the subject of the contravention of s 500. Where that particular conduct was the subject of penalty in relation to a contravention of s 500, s 556 precluded that particular conduct being the subject of a penalty in relation to the contravention of s 499 of the FW Act. 17 By the second contention we need to address, the respondent contended that the reference in s 556 to "conduct", insofar as it pertains to the contravention of a given civil remedy provision, should be understood as a reference to the wrongdoing by which that contravention is comprised: that is, not merely the constituent physical acts or omissions involved but also any necessary elements of character or circumstance that, when added to those acts or omissions, constitute the particular contravention. It is, so it was put, only when that conduct, so understood, also constitutes contravention of any "other provision of the law of the Commonwealth" that the prohibition for which s 556 provides is enlivened. 18 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 addressed a similar, if not identical, submission. There, the court was confronted with industrial action that had been engaged in contravention of ss 417 and 421 of the FW Act. At issue was what penalty ought to be imposed in respect of that industrial action and, in particular, whether s 556 of the Act operated to restrict the court to imposing a single penalty. His Honour held at [40]: 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. 19 His Honour's reference to "what the person actually did" warrants repeating. His conclusion followed earlier analysis of the circumstances that s 556 was intended to cover. Referring to the intention of those who authored s 556, his Honour observed at [39]: I think it unlikely that the draftsman had such a limited operation in mind when s 556 was on the drawing board. I doubt that he or she would have contemplated that there were, either in the FW Act as such or in that Act and in another law of the Commonwealth, two or more provisions which defined contravening conduct in terms that involved precisely matching elements. I am not aware of any such situation, and counsel for the applicant drew my attention to none. It is hard to imagine why the legislature would double up with identical legislation in the way that would be required to provide a setting for the viability of this submission on behalf of the applicant. 20 In contending that the construction of s 556 of the FW Act applied in The Australian Paper Case is erroneous, the respondent submits that the purpose of s 556 is to confirm that the common law principles of double jeopardy that have been developed over time are to be applied to the civil remedy provisions in the FW Act. By its Amended Notice of Contention, the respondent claims that s 556 is to be informed by common law principles of double jeopardy. From this premise, the respondent submits that the outcome in The Australian Paper Case is to be contrasted with the application of the double jeopardy principle in other cases, such as Lecornu v The Queen (2012) 36 VR 382. 21 In Lecornu, the appellant was convicted and sentenced in respect of child pornography offences, which offences also constituted a breach of an extended supervision order for which the appellant was also convicted and which attracted a separate sentence. The principal argument before the Victorian Court of Appeal was that there should have been no conviction for the breach of the supervision order, but it was further argued that, in relation to sentencing, there should have been no cumulation or less cumulation on the breach count. The Court (Maxwell P and Hollingworth A-JA and Cavanough A-JA agreeing), gave careful attention to the terms of the relevant legislation which included s 51(1) of the Interpretation of Legislation Act 1984 (Vic) and s 15(3) and s 40(1) of the Serious Sex Offenders Monitoring Act 2005 (Vic). Section 51(1) of the Interpretation of Legislation Act provided: Provisions as to offences under two or more laws: Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission. [Emphasis added] 22 It is significant that s 51(1) was qualified by the words, "unless the contrary attention expressly appears," as to which see Mitchell v Latrobe Regional Hospital (2016) 51 VR 581. That qualification directed attention to s 15(3)(a) of the Serious Sex Offenders Monitoring Act, which provided that it was a condition of every supervision order that the offender not commit a relevant offence and s 40(1) of that Act which provided that it was an offence not to comply with a condition. The Court held that the legislation plainly contemplated that where the condition under s 15(3)(a) was breached, two distinct offences would be committed and that the breach offence was intended to be separate and distinct and to attract its own punishment. That conclusion informed Maxwell P's consideration of the exercise of the sentencing discretion, in respect of which the Court held that the sentencing judge was entitled to impose a punishment for the breach offence because of the separate criminality that was involved. 23 The idea that there should not be double jeopardy is a value that is deeply ingrained in Australian law. The High Court has referred to the common law's antagonism towards double jeopardy: Lacey v Attorney-General of Queensland (2011) 242 CLR 573 at [15] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). Although the respondent referred to common law principles against double jeopardy, that is to be understood having regard to the fact that so much of the criminal law, and laws relating to, industrial, sentencing and civil penalties are governed by statute. And it must also be understood that there is no unified common law principle against double jeopardy because, as McHugh, Hayne and Callinan JJ observed in Pearce v The Queen (1998) 194 CLR 610 at [9]: "[t]he expression 'double jeopardy' is not always used with a single meaning." It is a value that underpins the law and which has a number of manifestations. 24 The respondent relied on Lecornu to inform the construction of s 556 of the FW Act and to submit that the approach of Jessup J in The Australia Paper Case was in error. However, the circumstances attending the outcome in Lecornu only serve to reinforce the importance of directing attention to the text of the applicable statutory provisions in each case. In Pearce at [38], McHugh, Hayne and Callinan JJ identified United Kingdom and Australian legislation that addressed in different terms the issue of double jeopardy in a sentencing context. While it might be said that at a broader level, and as confirmed by its heading, s 556 of the FW Act is a reflection of a policy against double jeopardy, it gives effect to that policy by its own terms in relation to particular conduct that contravenes a civil remedy provision of the Act. 25 It is an error to substitute for the text of s 556 of the FW Act judicial formulations of cognate principles in common law or other statutory contexts. Courts have warned against this often enough: Ogden Industries Pty Ltd v Lucas [1970] AC 113 at 127 (PC); Brennan v Comcare (1994) 50 FCR 555 at 572 (Gummow J); Baini v The Queen (2012) 246 CLR 469 at [14] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). A similar type of error is to approach the interpretation of a statutory provision with a preconceived idea as to the purpose to be achieved by the provision without focusing on the statutory text that has been deployed: Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at [26] (French CJ and Hayne J). For these reasons, the starting point and the finishing point in construing s 556 is the text of the provision itself having regard to context, purpose, and any other applicable common law or statutory principles of construction: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). 26 We respectfully adopt the construction of s 556 applied in The Australian Paper Case. Contrary to the submission advanced on behalf of the respondent and with respect to Jessup J, that construction is not plainly wrong, and in our view it is correct. It accords with the plain meaning of the words by which the section is expressed and also the underlying policy considerations to which we have referred. The "particular conduct" to which s 556 refers is the constituent act or omissions that a wrongdoer has committed - that is, what he or she (or it) actually did. 27 Lastly, the respondent sought to agitate a new argument that was not addressed in written submissions and that was not the subject of the Amended Notice of Contention. Specifically, the respondent submitted that even if the appellants' construction of s 556 was correct, the penalties that the Court below imposed were, in fact, imposed in such a way that did not offend s 556 of the FW Act. In other words, it was submitted that the penalty that the primary judge imposed in respect of the appellants' 5 June 2017 contraventions of s 500 were not in any way referrable to the conduct constituting their contraventions of s 499. 28 That contention can be swiftly disposed of for at least two reasons. 29 First, it is plain that the penalties that the primary judge imposed in respect of the appellants' 5 June 2017 s 500 breaches were fashioned having regard to all of the conduct by which the respondent, by his pleading, alleged that they were constituted. By his Amended Statement of Claim, the respondent alleged that Hassett had, whilst at the site on 5 June 2017, climbed onto the crane, refused to get off after being requested to, and used abusive and foul language towards management. It was that suite of conduct that was said to constitute the improper manner in which Hassett acted on that day, and that engaged the prohibition for which s 500 of the FW Act provides. 30 It is plain that Hassett's refusal to get down from the crane, which was the very conduct by which the contraventions of s 499 arose, was within the primary judge's contemplation when he imposed the penalties that he did for the 5 June 2017 contraventions of s 500. At [50], his Honour noted that the finding that Hassett contravened s 500 on that day was "not founded simply on his contravention of s 499." His Honour went on immediately to reject the appellants' argument about the application of s 556. In doing so, he can only sensibly be understood to have rejected the contention that any penalty imposed for the contraventions of s 500 (constituted by the suite of conduct referred to above) precluded the imposition of an additional penalty under s 499. 31 Further or more obviously, if the respondent's contention is correct, the primary judge should be understood to have effectively discounted the penalties that he imposed for the s 500 contraventions by the amounts that he imposed for the s 499 contraventions. The difficulty there is that the amounts imposed - $80,000 in total in respect of the CFMMEU, and $16,000 in respect of Hassett - were well above the maximum that the FW Act permitted for contraventions of s 500. His Honour cannot sensibly be understood to have done that. 32 Having accepted, then, that the primary judge's discretion to impose the penalties that his Honour imposed miscarried, attention should turn to what relief should follow. 33 It was common ground that, if the appeal were to succeed, we ought ourselves exercise the discretion to impose penalties in respect of the four statutory contraventions that arose from the appellants' conduct of 5 June 2017 (namely, the contraventions of ss 499 and 500 that each of the appellants committed on that day). We agree that that is the course we should follow. 34 It was also common ground that an appropriate exercise or re-exercise of that discretion would be to set aside orders 7 and 10 of the orders made below and leave the remainder of the primary judge's orders untouched. It was by those orders (7 and 10) that his Honour imposed a penalty against each of the appellants for their contravention of s 499 of the FW Act. 35 Again, we agree that that is an appropriate course to adopt. In doing so, we respectfully endorse the penalties that the primary judge imposed in respect of the appellants' 5 June 2017 contraventions of s 500 of the Act. We do so for the reasons that the primary judge identified at [56]-[58] and [60] of his Honour's reasons for judgment. Having considered for ourselves the totality of the penalties imposed against the appellants in respect of their conduct on 5 and 6 June 2017 (the latter being outside the scope of this appeal), we are satisfied that the penalties that survive - that is, those that are the subject of orders 8, 9, 11 and 12 of the judgment below - appropriately reflect the overall seriousness of the appellants' contraventions and provide a proportionate penal response to them. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Bromberg, Wheelahan and Snaden.