Grounds 14-16
119 The penalty imposed for the contraventions of s 54 on 31 January 2019 and 1 February 2019 is the subject of appeal grounds 14 to 16 and the notice of contention ground responding to grounds 14 and 15. The key issue concerns the Union's assertion that the penalty was imposed by the primary judge upon the basis of a state of mind that was more serious than (or different from that) admitted to in the SOAF.
120 As summarised above, early on the mornings of 31 January 2019 and 1 February 2019, in the context of a meeting of employees outside the yard gate, Michael Greenfield had a conversation with the managing director of Botany Cranes, Mr Griffiths. The conversation was directed, on Michael Greenfield's part, to getting Botany Cranes to accept the proposed Union EBA, stating what might happen if that did not happen on the first of those two consecutive days and promising an end to Union action if Mr Griffiths signed the proposed Union EBA on the second of those days.
121 It is convenient to reproduce s 54(1) of the Act again because the precise terms are important in the resolution of these appeal grounds(emphasis added):
A person must not:
(a) organise or take, or threaten to organise or take, any action; or
(b) refrain, or threaten to refrain, from taking any action;
with intent to coerce another person, or with intent to apply undue pressure to another person, to agree, or not to agree:
(c) to make, vary or terminate a building enterprise agreement; or
(d) to approve any of the things mentioned in paragraph (c).
122 The key issue raised by these grounds of appeal is whether there is, or at least may be, a distinction, in terms of seriousness, between intent to coerce and intent to apply undue pressure, for a contravention of s 54, having regard also to the characterisation of the corresponding conduct that was admitted to. Ground 14 directly raises this legal point, which is not a discretionary issue, while the related grounds 15 and 16 concern discretionary decision-making in penalty imposition, which are affected by the conclusion reached on ground 14.
123 In the amended statement of claim, alleged contraventions of s 54 by Michael Greenfield for each of 30 January, 31 January and 1 February 2019 were pleaded by the Commissioner in the alternative as to the two intentions, as threatening to organise or take action against Botany Cranes:
(a) with intent to apply undue pressure to Mr Griffiths and Botany Cranes to make a building enterprise agreement; or
(b) with intent to negate choice (being the essential element of coercion) of Botany Cranes as to whether or not to make a building enterprise agreement, or approve the proposed Union EBA, or make a building enterprise agreement in terms of the proposed Union EBA or on terms which Botany Cranes would not otherwise agree,
either way by engaging in conduct that was unlawful, illegitimate or unconscionable.
124 Michael Greenfield claimed penalty privilege in relation to those allegations in his defence, and no evidence was given by him as to his state of mind, so that the scope of what was admitted can only be determined by the content of the facts that were agreed upon.
125 By the SOAF, Michael Greenfield and the Union admitted to:
(a) a contravention of s 52 on 30 January 2019, in relation to the re-employment of Mr Byrnes, which was the prime focus of that day, because it was intimated by Michael Greenfield that reemploying Mr Byrnes would mean that bargaining on the enterprise agreement could resume, but did not admit to the alleged contravention of s 54 on that day directed to the enterprise agreement, being conduct that was admitted to be unlawful, illegitimate or unconscionable;
(b) contraventions of s 54 on 31 January 2019 and 1 February 2019 in relation to the enterprise agreement by organising or taking action (not threatening to do so), with an intention to apply undue pressure to another person to make or approve a building enterprise agreement (also admitted to be unlawful, illegitimate or unconscionable), but not with the alternative pleaded intention to coerce another person to make or approve a building enterprise agreement.
126 There was no agreement that the words uttered by Michael Greenfield on either 31 January 2019 or 1 February 2019 amounted to threats as had been alleged in the amended statement of claim, nor any agreed fact, admission or evidence that Mr Griffiths, to whom the words were uttered, felt overborne. The relevant agreed fact (at SOAF [57]) was that the conduct of Michael Greenfield constituted the organising or taking of action against Botany Cranes with intent to apply undue pressure to agree to make or approve a building enterprise agreement, contrary to s 54. By contrast, there was an overt admission (at SOAF [50]) that on 30 January 2019 Michael Greenfield threatened to organise or take action against Botany Cranes with intent to coerce, contrary to s 52. Thus, there was an obvious and deliberate agreement that the conduct on 30 January 2019 was conduct involving threats and coercive intent, and that the conduct on 31 January 2019 and 1 February 2019 did not include conduct that involved threats. It was agreed that it did involve intent to apply undue pressure, but no more.
127 The pleaded contraventions of s 54 on 30 January 2019 that were not admitted to or otherwise proceeded with thus provide important context to understand what Michael Greenfield and the Union were, and were not, admitting to as constituting contraventions of s 54. If a particular state of mind going beyond what was admitted to was relied upon by the Commissioner, it was incumbent on him to prove it: see Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [131].
128 As can be seen from the passages of the primary judge's reasons set out below, despite an apparently deliberate decision and agreement made by the parties to characterise the conduct and intention on 31 January 2019 and 1 February 2019 in a materially different way, his Honour described Michael Greenfield's conduct and his corresponding intention on both occasions as threatening and intimidating, treating the conduct at both periods of time as being much the same, by equating the later conduct and intention involving threats to the earlier conduct and intention which was admitted to have that content and character. This approach indicates that the parties treated the impugned conduct in this case, accompanied by an intention to apply undue pressure, as being less serious than the same conduct accompanied by an intention to coerce.
129 At the appeal hearing, counsel for the appellants emphasised that the complaint was that the primary judge appeared to have gone beyond the agreed lesser conduct as to state of mind in the SOAF that was the basis of the resolution of the proceeding and appeared to have analysed Michael Greenfield's conduct as if it carried the heightened state of mind of coercion. This gives rise to the question, raised at the appeal hearing, of whether his Honour had failed to give due recognition to the limit on what had been agreed to in relation to the conduct on 31 January and 1 February 2019.
130 As a matter of principle, a civil penalty case should not be decided upon a basis that is materially different from that which has been pleaded unless that departure is in some way agreed to: Australian Building and Construction Commissioner v Hall (2018) FCAFC 83; 216 FCR 347 at [49]-[50]. The same principle applies when, as in this case, agreed facts have taken the place of a defence in defining what has been agreed to as constituting the contraventions for which a penalty may be imposed. There is no suggestion that Michael Greenfield or the Union agreed to any disposition upon a basis that departed from the SOAF.
131 Further and in any event, departing from agreed facts expressly made under s 191 of the Evidence Act 1995 (Cth), as was done by [2] of the SOAF, ordinarily requires the leave of the Court under s 191(2)(b). There is no suggestion that such leave was sought or granted.
132 The primary judge addressed the contraventions on 31 January 2019 and 1 February 2019 in his Honour's first reasons as follows, with express reference to the words deployed by Michael Greenfield on those days admitted by him to constitute those contraventions of s 54(1) (emphasis added):
130 In the two day period between 31 January and 1 February 2019, Michael Greenfield and the Union contravened s 54(1) of the Act by taking action with intent to apply undue pressure to Botany Cranes to agree to make or approve the CFMMEU proposed EBA (agreed facts pars 53-55).
131 On 31 January 2019, Michael Greenfield repudiated what he had told Mr Griffiths the previous day and brazenly threatened Botany Cranes if it were not willing to capitulate to the Union's terms. Michael Greenfield returned the next day, making plain the Union's modus operandi when he said "If you sign the [CFMMEU proposed] EBA we will leave your sites alone". Eventually, Mr Griffiths signed that document on 12 February 2019.
132 The Union argued that "undue pressure" was a lesser form of proscribed behaviour in s 54(1) than coercion. I reject that argument. The Act does not create such a gradation. Nor does common experience: Barton [1976] AC at 120D-F; Esso 263 CLR at 585 [61]: see [84]-[88] above.
133 Fear, however created, is a powerful motivator. The maximum penalty for a contravention of s 54(1) is the same for conduct amounting to coercion as for conduct amounting to undue pressure. Each is an alternate form of unlawful behaviour. Michael Greenfield's statement on 31 January 2019 to Mr Griffiths "If I were you, I'd fuckin' sign it", his threat "… what do you think will happen to you?", followed up the next day by "If you sign the EBA we will leave your sites alone" were not idle chit chat. They were overbearing threats, intended to be so, and they worked. There is no mitigating that illegitimate intimidation by the making of fine distinctions between the two forms of unlawful behaviour that s 54(1) proscribed.
134 Michael Greenfield admitted that, in contravention of s 54(1), he had organised or taken action against Botany Cranes on 31 January and 1 February 2019 with intent to apply undue pressure on it to agree to make or approve a building enterprise agreement. The pressure was unlawful, illegitimate and unconscionable. Once again, his conduct and intention were also those of the Union by force of s 94(1). The behaviour exhibited the same lamentable factors that I described in [127] above in respect of the conduct on 30 January 2019. Likewise, these contraventions of s 54(1) call for a severe penalty in order to achieve specific and general deterrence.
133 The conclusion reached by the primary judge at [132], reproduced above, that he rejected the Union's argument that "undue pressure" was a lesser form of proscribed behaviour, at least in this particular case, is a legal conclusion particularly amenable to appellate review: see Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 per Perram J at [45], especially the last sentence. As the grounds of appeal reproduced below make clear, it is that conclusion that is sought to be impugned by the Union and Michael Greenfield, and said to infect the penalty imposition process and result because, it is alleged, his Honour applied a more serious state of mind than had been admitted to.
134 The reference by the primary judge at [132] to the earlier passages at [84] to [88], which contain consideration of what may constitute coercion, reveal his Honour's thought processes on this topic, informing the conclusions that were reached and enabling them to be better understood (emphasis added):
84 There may be a gradation of seriousness, in the ordinary course, between a person who engages in an unlawful picket or takes action to coerce another, in contravention of ss 47(1) or 52, in comparison to a person who organises either activity, though this need not always be so. Each case necessarily must be decided in its factual context. At the more extreme end, a threat to kill conveyed by one or more persons unless the person threatened signed a contract is a form of undue pressure or coercion, as graphically illustrated by the facts in Barton v Armstrong [1976] AC 104 at 120D. However, many other human behaviours are capable of creating a coercive impact of varying degrees of seriousness. We have all experienced ourselves, or as observers, or through the shared experiences of persons we know, bullying and harassing conduct. As in this proceeding, a large group of about 50 individuals, mostly comprising apparently strong, physically well-built males blocking or controlling what would otherwise be free entry to and egress from premises while aggressively chanting self-promoting slogans and pumping fists in the air, is calculated to instil fear into persons who are within or wish to enter those premises.
85 The Parliament enacted provisions such as ss 47, 52 and 54 of the Act to address the illegitimate use of coercion and undue pressure in the building and construction industry by employers, employees and both interests' representative bodies, such as trade associations and trade unions. The Parliament acted in the context that it had already established, through the Fair Work Act and the Fair Work Commission, some similar prohibitions in that enactment as in the Act (like s 355 of the Fair Work Act and s 52 of the Act) and an independent mechanism for the formulation and enforcement of fair and transparent workplace standards, including terms and conditions of employment and the ability of that Commission to settle disputes impartially.
86 There is a substantive difference in the elements of conduct constituting a contravention of s 47(1) of the Act, on the one hand, and ss 52(a) and 54(1), on the other. Indeed, the Parliament placed these sections in different parts of the Act; s 47 is in Ch 5 that is headed "Unlawful action" and ss 52 and 54 are in Ch 6 that is headed "Coercion, discrimination and unenforceable agreements". Coercion is a behaviour that involves the exertion of illegitimate, unlawful or improper force or compulsion on a person with the intention of causing its subject to act as the person exerting the force or compulsion desires. Coercion, like undue pressure, is a behaviour that goes beyond what is legitimate or proper in interactions between people, as the authorities dealing with unlawful duress recognise.
87 Lawful, hard negotiating, or the exploitation of another's weak negotiation positon (for example, because they are in breach of a contract or without sufficient resources), is not the same as the over-reach by a party with a stronger position to negate the subject's choice that crosses the boundary between lawful and unlawful or unconscientious conduct. The identification of that boundary will sometimes require a value judgment by a court, such as that in the divergent judicial appraisals of the facts in Barton [1976] AC 104.
88 In Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551 at 585 [61], Kiefel CJ, Keane, Nettle and Edelman JJ, with whom Gageler J agreed (at 587-588 [65]) noted that, as the law presently is, coercion within the meaning of s 343 of the Fair Work Act is action that, first, is unlawful, illegitimate or unconscionable, secondly, the person organising, taking or threatening the action intended, by doing so, to negate the other person's choice, and, thirdly, the alleged contravener has actual knowledge of circumstances that makes his or her conduct unlawful. They held that it was unnecessary that the alleged contravener correctly appreciates the legal nature of the action he or she organised, threatened or took. The expression "undue pressure" is descriptive of conduct of a similar nature that, like coercion, goes beyond legitimate pressure of a lawful industrial or workplace interaction, negotiation or dealing: Esso 263 CLR at 585 [61]. The statutory expression "undue pressure" is apt to proscribe pressure that is illegitimate, such as would amount to economic duress, excessive, unjustifiable, improper or unreasonable, given the industrial context.
135 The passage in Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; 263 CLR 551 at [61] cited by the primary judge above, does not support equating coercion with undue pressure. While the latter may involve conduct that is objectively unlawful, illegitimate or unconscionable, unlike coercion that is not required to be established, even if it may be present, and even if, as in this case, it is admitted to as a feature of the undue pressure that was applied by Michael Greenfield and thus the Union.
136 The cross-reference by the primary judge at [132] to [84] to [88], and the focus on the content of coercion in the latter, followed by a measure of equivalence being drawn between that and undue pressure, tends to suggest that the primary judge treated the two states of mind as comparable when arriving at the penalty to be imposed for the contraventions of s 54 of the Act on 31 January and 1 February 2019.
137 The grounds of appeal and of contention are better reproduced than summarised. The relevant grounds of the amended notice of appeal are:
14. The primary judge erred in imposing penalties on the [Union] and [Michael Greenfield] in relation to their contraventions of s 54(1) of the BCIIP Act on 31 January and 1 February 2019 by holding that a contravention of s 54(1) of the BCIIP Act based on conduct engaged in with an intention to apply undue pressure was of equivalent seriousness to a contravention based on conduct engaged in with an intention to coerce and that s 54(1) of the BCIIP Act did not create a gradation of seriousness as between conduct engaged in with an intent to apply undue pressure as compared to conduct engaged in with an intention to coerce.
15. The primary judge erred in concluding that [Michael Greenfield's statements on 31 January 2019 were 'overbearing threats' in circumstances where the contravention of s 54(1) of the BCIIP Act on 31 January 2019 was based on [Michael Greenfield] engaging in conduct with intent to apply undue pressure rather than conduct with intent to coerce.
16. The primary judge erred in imposing penalties on the [Union] and [Michael Greenfield] in relation to their contraventions of s 54(1) of the BCIIP Act by holding in the absence of evidence that the [Michael Greenfield]'s statements on 31 January 2019 were 'overbearing threats'.
138 The ground of the amended notice of contention directed to appeal grounds 14 and 15 is:
In the event that the Court upholds these grounds, and it is found that the primary judge imposed penalties on the basis that undue pressure was impermissibly equated with an intention to coerce for the purposes of applying section 54(1), the imposition of penalties on the first and third appellants for contraventions of section 54(1) of the BCIIP Act should be affirmed on the basis that it was open to the primary judge to impose those penalties in the exercise of the penalty discretion given the primary judge's factual findings as to the serious nature of the conduct involved.
139 Of course, an appeal must be from orders, not reasons, albeit that an error found in reasoning may mean that the orders made upon such a basis can be shown to be infected with that error: Ah Toy v Registrar of Companies for the Northern Territory (1985) 10 FCR 280 at 285-286 per Toohey, Morling and Wilcox JJ; see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (No 2) [2021] FCAFC 56 at [12] and the cases there cited. Both the grounds of appeal and the ground of contention above therefore are to be read as requiring a determination as to whether such an infection has been established as to the process and final result.
140 It may be seen that the above grounds of appeal and contention give rise to the following issues for determination:
(a) whether there is any distinction in terms of seriousness (or otherwise) in s 54 of the Act as to an intention to coerce as against an intention to apply undue pressure;
(b) if so, whether his Honour proceeding on the basis that the state of mind here was tantamount to an intent to coerce by referring to "brazenly threatened", "overbearing threats"; "intimidation" and the conduct on those two days as exhibiting "the same lamentable factors … in respect of the conduct on 30 January 2019";
(c) if so, whether the penalty imposed was excessive to the extent of constituting an error in the exercise of the penalty imposition discretion.