Construction, Forestry, Mining and Energy Union; The Maritime Union of... [2018] FWC 1017 | Case summary

[2]

[2018] FWC 1017 [Note: An appeal pursuant to s.604 (C2018/1245) was lodged against this decision - refer to Decision dated 16 March 2018 [ [2018] FWC 1500] for result of appeal.]

Construction, Forestry, Mining and Energy Union; The Maritime Union of... [2018] FWC 1017 | Case summary | Zoe

[57]

[4] In earlier proceedings for the approval for submission of a proposed amalgamation to ballot, the Australian Mines and Metals Association (AMMA) and Master Builders Australia (MBA) (together the "Objectors") sought and were given leave to make submissions in opposition to the approval for submission of amalgamation to ballot on a number of grounds. The Australian Institute of Marine and Power Engineers (AIMPE) and the Australian Maritime Officers' Union (AMOU) also sought and were given leave pursuant to s.54(3) of the Act to make submissions. I dealt with those grounds in my decision[2] to approve the submission of the proposed amalgamation to ballot. On 6 December 2017, I issued directions requiring any person who had appeared in the earlier proceeding and who wished to make a submission that the Commission is not able to be satisfied of any one or more of the matters outlined in s.73(2) of the RO Act to file and serve an outline of submissions and other materials by the date specified. The directions made allowance for the Applicant organisations to file materials in response. AMMA and MBA filed a joint outline of submissions together with affidavits of Peter John Cooke[3] and Shaun Schmitke.[4] The Applicant organisations also filed an outline of submissions together with a statement of Michael O'Connor.[5] Neither AIMPE nor AMOU filed any material. Further submissions, an affidavit of Mr Michael Coonan[6] and a witness statement of Mr Phillip Pasfield[7] were filed dealing with a discrete matter concerning the MUA which had developed since initially reserving my decision on 2 February 2018. I deal with this matter later in this decision.

[5] The deponents, Mr O'Connor and Mr Pasfield were not required for cross-examination, however objection was taken by the Applicant organisations to the admissibility of much of the material contained in the first two affidavits filed on relevance grounds.[8] I will return to this issue later in these reasons.

[6] For the reasons which follow, I have decided to fix a day on which the amalgamation of the Applicant organisations will take effect. That day will be 21 days from the date of this decision.

[73]

[19] Put simply, one way of resolving the issue requiring determination is to answer the question whether that phrase "other than civil proceedings" leaves only criminal proceedings that are pending against any of the Applicant organisations in relation to the enumerated matters, as the kind of pending proceedings the absence of which I must be satisfied. As the cases were argued, neither the Applicant organisations nor the Objectors suggested that, excepting the proceedings identified above, there is any other proceeding pending against any of the Applicant organisations, which is relevant, nor am I aware of any other relevant proceeding. It is therefore only necessary to determine whether the various pending proceedings identified and which are not in dispute are "civil proceedings" within the meaning of s.73(2)(c) of the RO Act. Save for the discrete matter against the MUA, there is also no contest that the extant proceedings identified are "in relation to" one or more of the matters in s.72(2)(c)(i)-(iii). However as the issues were fully ventilated I will nevertheless express a view about both issues.

[20] The Objectors argue the reference to "proceedings" in s.73(2)(c) is more nuanced, so as to require more than the application of an imprecise dichotomy between "civil proceedings" on the one hand and "criminal proceedings" on the other. The more nuanced construction would have the result that proceedings pending against any of the Applicant organisations which involved the imposition of a pecuniary penalty for a contravention of, for example, the RO Act, the Fair Work Act 2009 (FW Act) or other Commonwealth laws, would fall outside the description "civil proceedings". The existence of such proceedings would be relevant for the purposes of attaining the requisite satisfaction of the matters in s.73(2)(c). For convenience, I will refer to this type of proceeding as "civil penalty proceedings" later in the decision. The Applicant organisations contend that, properly construed, the words "proceedings (other than civil proceedings)" in s.73(2)(c) do not include civil penalty proceedings. Indeed the Objectors contend that properly construed, the words "civil proceedings" in s.73(2)(c) do not include any proceeding in which a penalty is sought or some other punishment is sought to be imposed.[18]

[21] As is apparent from the above there is no factual dispute about the types of proceedings pending against two of the Applicant organisations. There are a number of civil penalty proceedings pending against each of the CFMEU and the MUA in relation to contraventions of relevant laws.[19] There are no such proceedings pending against the TCFUA,[20] nor are there any relevant criminal proceedings pending against any of the Applicant organisations.[21] There is also a contempt proceeding pending against the MUA, the significance of which I will later deal.[22]

[95]

[31] It appears to me that the reference to "associations of employers and employees" in s.5(2) is not a reference to organisations registered under the RO Act. It refers to "associations" before they become registered as organisations under the RO Act. Rather, the subsection is concerned with expressing the desirability of a scheme of regulation, registration and standards established by the RO Act operating as a condition precedent to obtaining the rights and privileges accorded by relevant federal industrial law, as a means by which to enhance the relations described and the reduction of the adverse effects of industrial disputation. This distinction between "associations" on the one hand, and "organisations" on the other, is apparent in s. 5(4) and as well is the scheme for registration of employer and employee associations found Chapter 2 of the RO Act .

[32] Associations of employers and employees once registered are required to meet such standards as are set out in the RO Act. Section 5(3) does not set these "standards". Rather, the matters enumerated therein are concerned with describing that which the standards elsewhere in the RO Act ensure, encourage, provide or facilitate. It seems apparent from s.5(3) that apart from facilitating the registration of a diverse range of organisations, the standards set out in the RO Act are concerned with ensuring that organisations, once registered, are accountable to and representative of members, encourage member participation in the organisation's affairs, are efficiently managed, have high standards of accountability to members, function and are controlled democratically.

[33] The furtherance of the Parliament's intention vis-a-vis "associations" is reflected in the criteria for registration of an association in s.19 of the RO Act. Specifically, the Commission must only grant an application for registration made by an association, inter alia, if the registration of the association would further Parliament's intention in enacting the RO Act as set out in s.5.[34]

[34] The Objectors contended that the provisions to which reference is made above give a contextual clue to the purpose underlining s.73 of the RO Act. They contended that these provisions suggest that the purpose of s.73 is normative rather than remedial and that it is designed to encourage the setting and enforcement of standards.[35] I do not accept this contention. As the Applicant organisations point out[36] s.5(2) is concerned with Parliament's consideration that relations between federal system employers and federal system employees will be enhanced and that adverse effects of industrial disputation will be reduced if "associations of employers and employees" are required to meet the standards set out in the RO Act in order to gain the rights and privileges accorded under the RO Act and the FW Act. As I have already made it clear, I consider that this subsection is directed to the desirability of associations of employers and employees seeking to be registered as organisations and the reference to the rights and privileges in that subsection is to the rights and privileges that come with that registration under the RO Act.

[35] True it is that rights and privileges conferred by registration can be removed. But the mechanism for this is through the cancellation of an organisation's registration under the RO Act.

[36] Chapter 2 of the RO Act contains provision for registration of a relevant association as an organisation (Part 2) and for cancellation of registration (Part 3).

[37] By s.19(1)(e), in addition to the matter to which reference has already been made, the Commission must only grant an application for registration made by an association if it is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under RO Act and the FW Act . In this connection s.19(4) provides:

[104]

[39] It is apparent from these provisions that conduct of an association seeking registration which raises questions about its capacity to meet the obligations of an organisation under RO Act and the FW Act. Conduct that would provide grounds for an application for the cancellation of the registration of the association, if it were an organisation, are matters that are expressly relevant in assessing whether or not an application for registration as an organisation by an association should be granted. Arising from the consideration required by s.19(4) is the link to whether particular conduct has (or would have if the association were an organisation) prevented or hindered the achievement of Parliament's intention in enacting the RO Act (s.5) or of an object of that Act or the FW Act.[37]

[40] These issues similarly arise in connection with the grounds on which an application for the cancellation of the registration of an organisation may be made to the Court.

[41] It is to be noted that the scheme regulating the amalgamation of organisations contained in Chapter 3 of the RO Act does not contain any elaborate description of impugned conduct. Nor do the provisions expressly link, such matters as require consideration under s.73 to the Parliament's intention as expressed in s.5. This stands in contradistinction to the registration and cancellation provisions of the RO Act. This points away from the normative purpose of the provisions as suggested by the Objectors.

[42] Section 73 is, as already noted, part of the scheme regulating the amalgamation of organisations registered under the RO Act. Part 1 of Chapter 3 contains a simplified outline of the chapter. There are no separate or additional objects or statements of parliamentary intent contained in the chapter. Part 2 of Chapter 3 contains the procedure for the amalgamation of organisations. The amalgamation procedure commences with the preparation of a scheme of amalgamation, or in the case of three or more organisations being concerned in a proposed amalgamation, a scheme and an alternative scheme of amalgamation.[38] The scheme and each alternative scheme must be approved by a resolution by the respective committees of management of the organisations concerned in the amalgamation.[39]

[43] Relevantly, organisations concerned in a proposed amalgamation must jointly lodge an application with the Commission for the approval for submission of the amalgamation to ballot.[40] Provision is also made for an application by the proposed amalgamated organisation to be made for exemption from the requirement that a ballot of its members be held in relation to an amalgamation.[41] The "proposed amalgamated organisation" in relation to a proposed amalgamation is, relevantly, the organisation of which members of the proposed deregistering organisations are proposed to become members under Part 2 of Chapter 3.[42] In the instant case, the CFMEU is the proposed amalgamated organisation and each of the MUA and the TCFUA is a proposed deregistering organisation[43]. I had in earlier proceedings considered and granted an application for exemption from ballot application made by the CFMEU.[44]

[44] Provision is also made for an organisation concerned in a proposed amalgamation, to apply to the Commission for the approval of a proposal for the submission of an amalgamation to a ballot of its members that is not conducted in accordance with the provisions for the conduct of secret postal ballots set out in s.65 of the RO Act.[45] Such an application was made by the TCFUA and I approved the proposal.[46]

[45] Organisations concerned in a proposed amalgamation may lodge a written statement in support of the proposed amalgamation and each proposed alternative amalgamation.[47] Sections 49 to 52 set out the role of the AEC in respect of the conduct of ballots for a proposed amalgamation.[48]

[46] Sections 53 to 72 deal with the procedure for the approval of a proposed amalgamation. Section 53 is concerned with the fixing of a time and place for hearing submissions, relevantly, in relation to the granting of an approval for submission of the amalgamation to ballot, the granting of an exemption application made under s.46 and the approval that a ballot in relation to an amalgamation not be conducted under s.65 in respect of an application lodged under s.47. Section 54 contains certain limits on submissions that may be made at amalgamation hearing. Section 55 contains provisions concerning the matters about which the Commission must be satisfied, and if satisfied, requires the Commission to approve the submission of the amalgamation to ballot. There is then provision concerning how the Commission is to deal with an amalgamation which involves an extension of eligibility rules.[49]

[47] Provision is also made for the fixing of commencing and closing days of the ballot, the composition of the role of voters for a ballot and provision of "yes" and "no" cases.[50] Sections 61 to 62 make provision for the Commission to allow the organisations concerned in the amalgamation to alter the scheme of amalgamation at any time before commencing day of the ballot and allows for the Commission to approve an outline of the scheme for the proposed amalgamation.

[48] Sections 63 - 68 are concerned with exemptions from and the form and conduct of, the ballot and the reporting requirements of the AEC relation to the conduct of the ballot. Section 69 deals with inquiries into irregularities in relation to the ballot and provides that an application may be made to the Federal Court for an inquiry into alleged irregularities may be made no later than 30 days after the result of a ballot is declared. Section 70 is concerned with member approval of a proposed amalgamation, while s.71 provides that expenses of a ballot are to be borne by the Commonwealth.

[49] Offences in relation to a ballot are dealt with in s.72.

[50] It seems to me that these provisions are a manifestation of some of the standards noted in s.5(3) of the RO Act. Specifically, I consider that the aforementioned provisions are designed to ensure organisations participating in a proposed amalgamation are accountable to their members,[51] to encourage members of an organisation that is participating in the proposed amalgamation to participate in the affairs of that organisation[52] and to provide for the democratic functioning and control of the organisations participating in a proposed amalgamation.[53]

[51] It is to be observed from the amalgamation provisions of the RO Act thus far discussed, that neither the existence of extant proceedings of any kind nor a history of contravening conduct involving an organisation that is participating in the proposed amalgamation present as a bar to an application in relation to a proposed amalgamation being made. Nor do such matters warrant any express consideration by the Commission before approval may be given for the submission of an amalgamation to ballot. The absence of any such bar or precondition also weighs against the normative purpose of the provisions suggested by the Objectors.

[52] Sections 73 to 87 are concerned with that which is to occur for the amalgamation that has been approved by ballot to take effect. As earlier noted, s.73 requires the Commission after consultation with the organisations concerned in the amalgamation, to fix an amalgamation day if satisfied of certain matters.

[53] Before turning to consider the contextual significance of the remainder of the provisions to which I have referred in the preceding paragraph, it is convenient to deal with some judicial observations made about the meaning of "civil proceedings" particularly as that description concerns civil penalty proceedings and the submissions relating to such observations.

[54] The nature of civil penalty proceedings was recently considered by the High Court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (Cth v FWBII).[54] The issue before the Court concerned the fixing of civil penalties and whether the application of the decision in Barbaro v The Queen (Barbaro)[55] should properly be applied to civil penalty proceedings.

[55] As to the nature of a proceeding involving the recovery of a civil penalty under an enactment, French CJ, Kiefel, Bell, Nettle and Gordon JJ observed:

[114]

[57] It is plain that both the plurality and Keane J regarded civil penalty proceedings as "civil proceedings", at the very least as concerns or concerned the Building and Construction Industry Improvement Act 2005 (BCII Act 2005).

[58] The Objectors contend that when read in isolation, the words "other than civil proceedings", do not necessarily exclude or include penalty proceedings. They could be read broadly (to include such proceedings) or narrowly (to exclude them). They say that the proper scope of the phrase is a question of statutory construction, which can only be answered by close consideration of the relevant statutory text and context and the question cannot be answered by plucking general observations from other cases that have been decided under different statutory schemes.

[59] This is undoubtedly correct. However, it is to be borne in mind that a proceeding pending against an existing organisation concerned in the amalgamation in relation to a contravention of the BCII Act 2005 (if it is not a civil proceeding), would fall within the description in s.73(2)(c)(i) of the RO Act. The observations of the High Court in Cth v FWBII describing the nature of proceedings involving the recovery of a civil penalty under the BCII Act 2005 as civil proceedings, therefore inform the meaning that is to be ascribed for the scope of proceedings that fall within the exclusionary words "other than civil proceedings" in s.73(2)(c)(i) of the RO Act. Moreover it is also relevant to observe that when the BCII Act 2005 was amended by the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 (Cth), the BCII Act 2005 became the Fair Work (Building Industry) Act 2012 (Cth) (FWBI Act), the civil penalty provisions were repealed, and most of the kinds of contravening conduct that would have attracted a civil penalty under the BCII Act 2005 in respect of a building industry participant became regulated by the FW Act and subject to a civil penalty under that Act, albeit at significantly reduced amounts.

[60] There is nothing to suppose that the analysis of the High Court in Cth v FWBII of the nature of proceedings involving recovery of a civil penalty under the BCII Act 2005 would not apply with equal force to proceedings involving recovery of a civil penalty under the FW Act. In this regard, the High Court in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (FWO v Quest)[58] observed in connection with a matter concerning the proper construction of s.357 of the FW Act that:

[116]

[61] I therefore consider that the analysis in Cth v FWBII informs the meaning of "civil proceedings" and therefore the types of proceedings that fall within the exclusionary words "other than civil proceedings" in s.73(2)(c)(i) of the RO Act.

[62] For completeness, the FWBI Act was repealed by the Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth) on 2 December 2016. In its place, the Parliament enacted the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) which contains a range of provisions, a contravention of which attract various levels of civil penalties. There is nothing in the various provisions of the BCIIP Act to indicate that a different view should be taken about the nature of proceedings involving recovery of a civil penalty under that Act than that discussed by the High Court in Cth v FWBII. I will later deal with some relevant comparisons between provision of the RO Act, the FW Act and the BCIIP Act.

[63] Although the Bill which ultimately became the BCIIP Act was introduced into the Parliament before the judgment in Cth v FWBII in December 2015, the Bill was passed by both houses of the Parliament on 30 November 2016, it received royal assent on 1 December 2016 and its operative provisions came into effect on 2 December 2016. From this I infer that had the Parliament intended proceedings involving civil penalty provisions of the BCIIP Act to be of a different character to that discussed in Cth v FWBII, it had ample opportunity to give effect to that intention before enacting the BCIIP Act, but on my reading it did not do so. It follows on my analysis, that as the BCIIP Act is a Commonwealth law, the analysis in Cth v FWBII also informs the meaning that is to be ascribed for the scope of proceedings that fall within the exclusionary words "other than civil proceedings" in s.73(2)(c)(i) of the RO Act so far as it concerns proceedings involving a contravention of the BCIIP Act. I will return to Cth v FWBII later in this decision.

[64] The Objectors contend that the phrase "other than civil proceedings" is elastic, with no settled pre-determined meaning. They refer to the judgment of Gummow J in CEO of Customs v Labrador Liquor Wholesale Pty Ltd (Labrador)[60] in which his Honour said that "there are dangers in enforcing a classification containing but two classes, civil and criminal".[61] In Labrador, Hayne J explained that such a classification is, "at best, unstable" and "seeks to divide the litigious world into only two parts when, in truth, that world is more complex and varied than such a classification acknowledges" and observed that proceedings for a pecuniary penalty have "both criminal and civil characteristics".[62] Also in Labrador, Kirby J observed that "a strict dichotomy between 'criminal' and 'civil' proceedings is not always observed in Australian legislation".[63]

[65] The Objectors contend that this is reflected in the RO Act itself, and in particular the definition of "proceedings" in s.6 of the RO Act.

[66] Section 6 of the RO Act contains definitions and relevantly provides that in "this Act, unless the contrary intention appears:

[119]

[67] The Objectors therefore contend that not only is the distinction between civil and criminal proceeding "at best, unstable", but under the RO Act there are at least three other different ways in which a proceeding may be classified beyond that simple dichotomy.

[68] The Objectors contend that proceedings for the recovery of a pecuniary penalty are also for a public purpose, rather than for the vindication of any private right. They point out that the distinction between proceedings for the vindication of a private right and proceedings for the benefit of the public has been decisive of a question whether a proceeding ought to be characterised as a "civil or mixed matter".[64] They contend similarly that, disciplinary proceedings are also for the 'good of the public' and for that reason are sometimes regarded as neither civil nor criminal.[65] That may be so, but that a proceeding may be characterised as for the "good of the public" and a "civil or mixed matter" does not have the result, for that reason alone, that the proceeding ceases to be a civil proceeding. .

[69] Although proceedings for a pecuniary penalty are not treated as criminal proceedings for the purposes of the 'Barbaro principle', and a breach of a pecuniary penalty provision is not a "criminal offence",[66] the Objectors contend that in some contexts, penalty proceedings have been regarded as 'quasi-criminal' in nature.[67] They contend that this dual character distinguishes penalty proceedings from 'purely' civil proceedings, which have no quasi-criminal or protective purpose and that are simply inter partes litigation for the vindication of a private right.[68]

[70] The Objectors referred to Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors (Grocon); Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors [69] in which the Court of Appeal concluded that contempt proceedings are 'criminal' for some purposes but 'civil' for others and said:

[189]

[90] No more analysis than that is to be found in the judgment and no other Justice of the Court saw a need to make any such reference. The passage provides little assistance in construing the words at issue in this proceeding and if it be authority for the proposition advanced by the Objectors, in my opinion, it is directly inconsistent with the clear statements made by the High Court in Cth v FWBII.

[91] Sixthly, the reference to civil penalty proceedings as "quasi-criminal" in nature in some of the authorities discussed above do not, in my view, stand for the proposition that there is a third "quasi-criminal" category standing somewhere in between civil and criminal proceedings. At least not in the context of s.73(2)(c) of the RO Act.[91] In Safeway Stores Goldberg J explained that as the case had a public law element to it in which penalties were sought, it could on one view be described as quasi-criminal.[92] Both Hall and BHP Coal, in which civil penalty proceedings are described as quasi-criminal, were concerned with questions of the standard of proof and the need to apply s.140 of the Evidence Act as that section is expressed to apply to civil proceedings. Similarly, in Visy Industries Holdings Pty Ltd v ACCC[93] the reference is made in the context of a claim that in civil penalty proceedings the ACCC was subject to prosecutorial duties of fairness to the respondent.[94] It appears to me, from a review of the judgments in these cases, that the term or descriptor "quasi-criminal" is used to describe the seriousness of civil proceedings in which civil penalties are sought. However serious such proceedings might be, they nevertheless remain civil proceedings and none of these judgments state a contrary proposition.

[92] Seventhly, none of the authorities to which the Objectors have referred are as recent, authoritative or as subject matter relevant, in determining whether civil penalty proceedings are properly described as "civil proceedings" as Cth v FWBII and FWO v Quest. The observations made by the Court concerned the classification of civil penalty proceedings brought under the BCII Act 2005 and the FW Act prospectively as "civil proceedings". The proceedings considered by the Court in each case are the very kind of proceedings in contemplation under (putting the exclusionary words to one side) s.73(2)(c)(i) of the RO Act. I therefore consider the observations made in the recent High Court decisions inform the scope and proper meaning to be ascribed to the exclusionary words "other than civil proceedings" in that subsection.

[93] Eighthly, as to the definition of "proceeding" in s.6 of the RO Act, it is to be observed that the definition is not expressed to operate in absolute terms so that on any occasion in the Act when the word "proceeding" is used it carries a meaning to capture all or every kind of proceeding described in the definition. The structure of the definition itself makes good this point. Moreover, the opening words in s.6 make clear that the variously defined words or phrases carry the meanings set out therein when used in the RO Act "unless the contrary intention appears". A contrary intention may appear expressly or from the context in which the word is used in the various provisions or parts of the RO Act.

[94] "Proceeding" when used in the RO Act may, depending on the context, mean a proceeding in a court or it may mean a proceeding or hearing before, or an examination by or before, a tribunal, or if the context permits it may mean both kinds of proceeding therein described. The words "whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature" are in my opinion to be assigned to the type of proceeding, hearing or examination that is described as occurring on the one hand in a court and only other in a tribunal.

[95] I consider that the word "proceedings" when used in s.73(2)(c), is a reference to proceedings in a court. Given the nature of the proceedings "against" any relevant organisation about which s.73(2)(c) is concerned (contravention of Commonwealth laws and breaches of instruments and orders), it is difficult to see how such proceeding could be described as administrative or disciplinary in nature. That leaves only "civil" or "criminal" to describe the nature of the proceeding with which s.73(2)(c) is concerned. As to the reference to "other nature" in the definition, I am unable to identify, nor was I referred to a kind of proceeding that might be extant against an organisation in relation to the matters in s.73(2)(c)(i) - (iii) which would not properly describe as civil or criminal proceeding so as to fall within the descriptor "other nature". To the extent that it might be said to capture "_quasi-_criminal" that is rejected. As will later be seen, there is no support for such a conclusion in the extrinsic material as relates to this definition and had this been intended, simple express words in the definition could have been used by the Parliament as have been used by at least one state Parliament.[95]

[96] Consequently, to the extent that the Objectors rely on the definition of "proceeding" in s.6 of the RO Act to support a contention that s.73(2)(c) of the RO Act does not maintain a dichotomy between civil and criminal proceedings, that contention is rejected.

[97] The definition of "proceeding" was included in the RO Act only recently, and I say more about this later in this decision.

[98] I return then to the statutory context in which s.73 of the RO Act operates.

[99] There is some merit to the Applicant organisations' submission that when s.73(2)(c) of the RO Act is read in the context of other provisions which work together in Division 6, Part 2 of Chapter 3, which deal with the amalgamation taking effect, does not disclose any evident purpose to construe "proceedings" where first appearing in s.73(2)(c) as including civil penalty proceedings. The Applicant organisations point to the matters set out below:

[193]

[100] I accept that when s.73(2)(c) is read in the context of ss. 74 and 79, no evident purpose to construe "proceedings" in s.73(2)(c) as including civil penalty proceedings is disclosed. This is because on the Applicant organisations' reading, the amalgamation scheme appears to provide that any pending civil penalty proceedings or related liabilities would continue as against the amalgamated organisation, that is, the amalgamation would be approved with that result.

[101] However, against this, it must first be said that, although it is more common to describe a party to a criminal proceeding as a defendant, it is not unusual for a defendant to be described as a "party" to a criminal proceeding. Moreover, a party involved in a civil proceeding might be described as "applicant" and "respondent" or as "plaintiff" and "defendant" and the difference is often based on whether the civil proceeding is commenced in furtherance of a statutory cause or remedy or of a common law cause of action. For example, a person who is said to have contravened a civil remedy provision and against whom an order imposing a pecuniary penalty may be directed, is described in s. 81 of the BCIIP Act as "the defendant". Understood in this way, the use of the descriptor "party" in s.79 of the RO Act and in the definition of "proceeding to which this part applies" found in s.35, which is called up by s.79, is capable of applying to a defendant in a criminal proceeding.

[102] Secondly, it is to be observed that s.79 is intended to capture the particularly described and defined proceedings to which an organisation that becomes a deregistered organisation on amalgamation day was a party immediately before amalgamation day. The section therefore operates upon all relevantly described proceedings that are pending to which a deregistered organisation was a party, not just those pending "against" the deregistered organisation. The deployment of the word "party" as a descriptor of an organisation's involvement in a proceeding is the most efficient way of describing that involvement. This has the effect of capturing an organisation's involvement as an applicant, respondent, plaintiff, defendant, appellant and so forth. A deregistered organisation might also become a party to a relevant proceeding because it has intervened in a relevant proceeding.

[103] Thirdly, s.73 is concerned with relevant proceedings pending against any of the "existing organisations concerned in the amalgamation", whereas s.79 is concerned only with relevant proceedings pending to which "a de-registered organisation was a party immediately before the amalgamation day".[98] In the instant case, while s.73 has application to each Applicant organisation, s.79 has effect upon any relevant proceedings to which the MUA or the TCFUA was a party immediately before amalgamation day. On amalgamation day, the amalgamated body, the CFMMEU will be substituted as a party in those proceeding. This is because it is only the MUA and the TCFUA that will be deregistered as set out in the scheme for amalgamation.

[104] Ultimately, I consider that these provisions provide only equivocal contextual assistance.

[105] Perhaps a more persuasive contextual consideration is, as contended by the Applicant organisations, the fact that the Commission is required to undertake the task required by s.73(2)(c) at the end of the amalgamation process when considering whether to fix the amalgamation date as opposed to earlier in the process and before the vote of members. It is contended the later stage of the amalgamation process at which this issue is given consideration supports the proposition that s.73(2)(c) is designed to deal with proceedings that are not transferrable to the amalgamated entity. Thus, the provision is not intended to punish an organisation for its previous behaviour. Moreover, one would expect such a purpose to be manifested in the section. I accept the contention in the last two sentences, but that contained in the sentence proceeding them is not apt to apply in respect of each Applicant organisation.

[106] Dealing with that proposition first, it is to be observed that there is no need in an amalgamation of organisations that all participating organisations be deregistered. That is plainly the case as between the CFMEU, the MUA and the TCFUA. Only the latter named organisations will become deregistered on amalgamation day. There is no need for a provision dealing with the transfer of such proceedings involving an organisation which on amalgamation day will continue to exist, albeit in an amalgamated form and with the changed name. The legal entity that existed before amalgamation day will continue to exist after amalgamation day. This is the case in respect of the CFMEU. The legal entity that is now the CFMEU will, on amalgamation day, continue to exist, but will be named the CFMMEU with altered rules to take account of its amalgamation with the MUA and the TCFUA. Thus, while this holds true for the MUA and the TCFUA, it does not explain the operative purpose of s.73(2)(c) on the CFMEU in circumstances of this amalgamation.

[107] However, as I have already observed, neither the existence of extant proceedings of any kind nor a history of contravening conduct involving an organisation that is participating in the proposed amalgamation provide a bar to an application in relation to a proposed amalgamation being made or constitute a matter about which the Commission must be satisfied before approving the submission of an amalgamation to ballot. If the existence of such proceedings was intended to be punitive or a bar to amalgamation, one would expect that intention to disclose that at a much earlier stage of the amalgamation process.

[108] Additionally, it seems to me a very odd approach to establishing a "normative" regime for the Parliament to have intended to prevent the fixing of an amalgamation date because of pending proceedings against an organisation, but no account need be taken of actual concluded proceedings in respect of which an organisation has been found to have contravene one or more relevant laws. A "normative" purpose would, it seems to me, not allow the fixing of an amalgamation date, in the event of both pending and concluded proceedings, at least if the quantum of concluded proceedings showed a pattern of disregard for established industrial or workplace law. In the instant case, assume the existence of pending criminal proceedings against the CFMEU. This would, today, prevent the fixing of an amalgamation day. But if tomorrow those proceedings were to be concluded, an amalgamation date could be fixed assuming satisfaction as to the other matters. This would be so whether the CFMEU was convicted of the offence charged or not. Such a legislative scheme is wholly inconsistent with a "normative purpose for which the Objector's contend. In addition were criminal proceedings to be commenced on the day after an amalgamation dated is fixed under s.73 there does not appear to be any bar on the amalgamation proceeding on the day fixed. This also tells against a "normative" purpose.

[109] I therefore consider that the context provided by the various provisions of the RO Act and the judicial consideration of the nature of the civil penalty proceedings to which I have referred lends support for a conclusion that the reference to "civil proceedings" in s.73(2)(c) includes civil penalty proceedings.

[110] I turn next to other contextual considerations.

[195]

[111] The RO Act does not operate in a vacuum. It operates alongside other Commonwealth laws which collectively provide for a scheme of national industrial or workplace relations regulation. The FW Act and the BCIIP Act, also form part of that scheme of regulation. They therefore, in my view, also provide context.

[112] There appears to be a distinction drawn between civil and criminal proceedings in each of the FW Act, the BCIIP Act and the RO Act with civil penalty proceedings (or proceedings for a civil penalty order in the case of the BCIIP Act) falling within the scope of "civil proceedings." The analysis of the various provisions below makes good this point.

[113] Chapter 4 of the FW Act deals with compliance and enforcement. Part 4 - 1 of that chapter is concerned with civil remedies and Division 4 thereof sets out general provisions relating to civil remedies. Section 549 provides that contravening a "civil remedy provision is not an offence". Offences, which give rise to a criminal proceeding, are elsewhere dealt with in the FW Act. For example, s.674 provides that it is an offence if a person engages in conduct that insults or disturbs a member of the Commission, or uses insulting language to a Commission member, or interrupts matters before the Commission, or disturbs proceedings in the Commission, or uses words intended to improperly influence the Commission or a person attending before the Commission. The commission of such an offence is punishable by imprisonment for up to 12 months.

[114] Section 678 of the FW Act provides that it is an offence for a person to give false or misleading evidence before the Commission or to induce, threaten or intimidate a witness to give false or misleading evidence in a matter before the Commission and is punishable by imprisonment for 12 months.

[115] The distinction drawn in the FW Act between civil and criminal proceedings is also evident in a number of other provisions of that Act.

[116] Section 551 of the FW Act provides that a court is obliged to apply the rules of evidence and procedure for "civil matters" when hearing proceedings relating to a contravention or proposed contravention of a civil remedy provision. Section 552 provides that a court must not make a pecuniary penalty order against a person for contravention of a civil remedy provision if the person has already been convicted of an offence constituted by conduct substantially the same as the conduct constituting the contravention of the civil remedy provision. There is a heading to s.552 which provides: "civil proceedings after criminal proceedings".

[117] The relevant iteration of the AI Act[99] relevant to the FW Act provides that no heading to a section of an Act shall be taken to be part of the Act.[100] I consider however, that a heading might be considered as provided for in s.15AB of the AI Act to confirm the ordinary meaning conveyed by the text of the provision or determine the meaning of a provision when the provision is ambiguous or obscure. The heading has a tendency to confirm that the FW Act draws a distinction between civil and criminal proceedings, with "civil penalty proceedings" falling within the ambit of "civil proceedings". This is all the more so the case as the text of the section underneath the heading deals with only the subject of a "pecuniary penalty order" as the subject matter of the proceeding that is capable of falling within the description "civil proceedings" contained in the heading. The foregoing applies also in respect of the other headings to sections in the FW Act, to which reference is made below.

[118] Section 553(1) of the FW Act is headed "criminal proceedings during civil proceedings" and provides that proceedings for a pecuniary penalty order against a person for contravening a civil remedy provision are stayed if criminal proceedings are started or have already been started against the person and the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention. Section 553(2) permits a proceeding for a pecuniary penalty order to be resumed if the person is not convicted of the offence, but otherwise the proceeding for the order is dismissed.

[119] Section 554 of the FW Act, is headed "criminal proceedings after civil proceedings" and permits criminal proceedings to be commenced against a person for conduct substantially the same as conduct constituting a contravention of a civil remedy provision regardless of whether an order has been made against the person under Division 2 of Part 4 - 1.

[120] Section 555(1) of the FW Act provides that evidence of information given, or evidence of production of documents, by an individual is not admissible in a criminal proceeding against an individual if the individual previously gave the information or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil remedy provision (whether or not the order was made) and the conduct alleged to constitute the offence is substantially the same as the conduct in relation to which the order was sought.

[121] Chapter 10 of the RO Act deals with the subject of civil penalties. Section 304 contains a simplified outline which sets out that the chapter:

[199]

[122] Section 305(2) of the RO Act defines a "civil penalty provision" as a section or subsection of the RO Act that has, at its foot, a pecuniary penalty or penalties indicated by the words "civil penalty". Section 305(4) provides that the Federal Court must apply the rules of evidence and procedure for "civil matters" when hearing and determining an application for an order under Part 2 of Chapter 10 the RO Act. This is comparable to s.551 of the FW Act.

[123] Section 311 carries a heading "civil proceedings after criminal proceedings" and provides that the Federal Court must not make a pecuniary penalty order against a person for contravention of a civil remedy provision if the person has already been convicted of an offence constituted by conduct substantially the same as the conduct constituting the contravention of the civil remedy provision. The prohibition is substantially to the same effect as s.552 of the FW Act and s.87 of the BCIIP Act (to which reference will be made further below), although their reach extends beyond the Federal Court and applies to "a court" in the case of the FW Act and to "a relevant court" in the case of the BCIIP Act.

[124] As to the treatment of headings, the AI Act as currently in force is applicable to the construction of the RO Act and the BCIIP Act but not the FW Act. The AI Act as currently in force no longer contains a provision stating that a heading to a section of an Act is not part of the Act. The learned authors of "Statutory Interpretation in Australia"[101] have suggested that the "change made by the Commonwealth to s 13 of the Acts Interpretation Act 1901 that all material in an Act forms part of the Act would seem to mean that marginal notes and headings to sections in all Commonwealth legislation are part of the legislation no matter when made.[102] In any event, for the avoidance of doubt, the relevant headings in both the RO Act and the BCIIP Act may be considered, as provided for in s 15AB of the AI Act, to confirm the ordinary meaning conveyed by the text of the provision or determine the meaning of a provision when the provision is ambiguous or obscure. The use to which I put the headings in the FW Act earlier discussed, applies with equal force to the relevant headings in the RO Act and the BCIIP Act (to which reference will be shortly made).

[125] Section 312 of the RO Act is to the same effect as s.553 of the FW Act and is accompanied by a heading which provides "criminal proceedings during civil proceedings". Section 313 of the RO Act is to the same effect of s.554 of the FW Act, and is accompanied by a heading which provides "criminal proceedings after civil proceedings".

[126] As with the corresponding provisions of the FW Act, the only kind of proceeding that is the subject matter of the provisions capable of falling within the description "civil proceedings" identified in the heading, is a proceeding concerning a "pecuniary penalty order".

[127] Section 314 of the RO Act is to the same effect as to s.555 of the FW Act.

[128] As with the FW Act, the RO Act contains provisions dealing with "offences" which give rise to criminal liability. For example, there are offences in relation to ballots and ballot papers for which provision is made in ss. 72 and 105. A person who interferes with an investigation by the Registered Organisations Commissioner in the circumstances set out in s.337 is guilty of an offence punishable by imprisonment for up to 2 years or 100 penalty units or both. A person who interferes with a register of members commits an offence under s.232, punishable by 20 penalty units. This offence is one of strict liability for the purposes of s.6.1 of the Criminal Code 1995 (Cth). Other offences are to be found in ss. 337 - 337AA of the RO Act.

[129] It appears to me, therefore, that the RO Act draws substantially the same distinction drawn by the FW Act between civil and criminal proceedings.

[130] Turning then to the BCIIP Act, s. 5 makes provision for definitions of "civil penalty order"[103] and "civil remedy provision". Chapter 8 makes provision for enforcement. Part 2 of that chapter is concerned with orders concerning contraventions of civil remedy provisions.

[131] Section 86 of the BCIIP Act deals with the applicable rules of evidence and provides that a relevant court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a contravention of a civil remedy provision. This corresponds with s. 305(4) of the RO Act and s.551 of the FW Act.

[132] Section 87 of the BCIIP Act is headed "civil proceedings after criminal proceedings" and is to the same effect as s.311 of the RO Act and s.552 of the FW Act. Section 88 is headed "criminal proceedings during civil proceedings" and is to the same effect as s.312 of the RO Act and s.553 of the FW Act. Section 89 is headed "criminal proceedings after civil proceedings" and is to the same effect as s.313 of the RO Act and s.554 of the FW Act.

[133] As with the corresponding provisions of the RO Act and the FW Act, the only kind of proceedings that is the subject matter of the identified provisions of the BCIIP Act capable of falling within the description "civil proceedings" identified in the heading, is a proceeding concerning a "pecuniary penalty order".

[134] Section 90 of the BCIIP Act deals with the admissibility of evidence given in civil proceedings in criminal proceedings and is to the same effect as s.314 of the RO Act and s.555 of the FW Act.

[135] The BCIIP Act also contains provisions for offences carrying criminal liability, for example in s.62 a person commits an offence if a person is given an examination notice and the person fails to give the requisite information, attend to answer questions in accordance with the notice, fails to take an oath or make an affirmation when required, or to answer questions relevant to the investigation while attending as required by the notice. The commission of an offence under that section is punishable by imprisonment for 6 months.

[136] It therefore appears to me that the BCIIP Act draws substantially the same distinctions drawn by the RO Act and the FW Act between civil and criminal proceedings. The distinction reflects an established lexicon in the three statutes which constitute the scheme of national industrial or workplace relations regulation in relation to the position of civil penalty provisions and their classification as "civil proceedings".

[137] The various provisions of the RO Act, the FW Act and the BCIIP Act are, in my view, important contextual matters which support the conclusion that civil penalty proceedings are properly described as "civil proceedings" within the meaning of s.73(2)(c) of the RO Act.

[207]

That it is sound to use these statutory features in this way appears from the reasoning and decision of the majority of the High Court in The King v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1949) 82 CLR 208 . In that case the Court of Conciliation and Arbitration had made an order pursuant to what was then s. 29(c) of the Act enjoining the union from committing or continuing any contravention of the Act, namely from being a party to any ban, limitation or restriction on the working of overtime pursuant to a particular award. For the union to be a party to any such ban would have been a breach of a term of the award. Section 29(c) empowered the court to enjoin an organization from committing a contravention of the Act but had nothing to say about breaches or contraventions of terms of an award. It was held that within the meaning of the Act a mere breach of a term of an award was not a contravention of the Act and that as the order against the union was in substance an order enjoining the union from committing a breach of the term of the award it was not authorized by s. 29(c). Dixon J. (as he then was) stated: " . . . as I read it, the Conciliation and Arbitration Act maintains a distinction between infringements of the Act and infringements of awards and when it speaks of contraventions of the Act it is not referring to breaches of or failures to observe awards, even if such breaches or non-observances are contrary to the statute and expose the persons offending against the awards to penal consequences. The distinction is made in the terms in which the following provisions are expressed, viz.: ss. 31(1)(a) and (b), 33 (1)(a), 61, 64(1) and (6) and (80)(1)(c). Indeed it is indicated by s. 29(b) and (c) when they are considered together. The form of s. 65, which treats proceedings for an offence against the Act as not including the recovery of a penalty under s. 59 for breach or non-observance of an award, follows the distinction and appears to me to confirm the inference that an infringement of an award is not to be treated as included under the expression contravention of the Act. When s. 40(c) empowers the Arbitration Court in relation to an industrial dispute to fix maximum penalties for any breach or non-observance of a term of an award it marks the difference in the manner in which the statute regards non-compliance with the Act and non-compliance with awards under the Act. The provisions relating to State industrial regulation observe the same distinction when they speak of a 'State law dealing with an industrial matter' and 'an order, award, decision or determination of a State Industrial Authority': s. 28(1) and s. 51. Finally the importance attached by the framers of the Act to the enforcement of orders and awards and its treatment of their enforcement as a separate legislative subject tends to make it unlikely that the power to grant an injunction against contraventions of the Act was intended to compose injunctions against breaches and non-observance of awards: see s. 2(e) and the heading to Part V" (1949) 82 CLR, at pp 251-252 . Reference may also be made to the remarks of Kitto J. (1949) 82 CLR, at p 264.

[256]

[166] By amendment to the WR Act brought about by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), s.73(2)(c) became part of Schedule 1 of the WR Act but was not otherwise amended.

[167] A number of provisions of the WR Act made provision for offences that attached criminal liability, including a number of provisions of Schedule 1B and subsequently Schedule 1 to the WR Act.[111] A breach of an award or of a certified agreement was a "civil remedy provisions" and not an "offence" under the WR Act.[112]

[168] Provisions regulating civil proceedings and criminal proceedings that were constituted by substantially the same conduct, evidentiary rules applicable to civil remedy provisions and the admissibility of evidence in criminal proceedings, in terms essentially the same as those discussed earlier in this decision, were to be found in s.729 and ss. 731 - 734 of the WR Act.

[169] The WR Act was repealed by Schedule 1 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). The enactment of the RO Act resulted in Schedule 1 to the WR Act essentially being replicated in the RO Act. Section 73 of the RO Act retained the essential features of its antecedent provision in the WR Act, save for necessary nomenclature changes to take account of changes in institutions and industrial instruments. Section 73(2) has been in its current terms since the RO Act commenced.

[170] Part 1 of Schedule 2 of Fair Work (Registered Organisations) Amendment Act 2016 (Cth) (RO Amendment Act) amended the RO Act, by including in s. 6 the definition of "proceeding" to which earlier reference has been made. The RO Act did not contain such a definition previously, although s.35 contains a definition of "proceeding to which this Part applies". The WR Act, before its repeal contained in s. 4 a non-exhaustive definition of "proceeding" as including "a proceeding relating to an award modernisation process, while s.35 of Schedule 1 to the WR Act contained a definition of "proceeding to which this part applies" which provided that "in relation to a completed amalgamation, means a proceeding to which a the registered organisation was a party immediately before the amalgamation day".

[171] Section 73(2)(c) was not amended by the RO Amendment Act. The Explanatory memorandum to the Fair Work (Registered Organisations) Amendment Bill 2014 provides the following in relation to the introduction of the definition of "proceeding":

[270]

[176] Regard may also be had to extrinsic material when interpreting provisions of a statute,[116] to confirm a meaning that the ordinary meaning of the text conveys taking into account its context in the Act and the purpose or object of the underlying Act, or to determine the meaning of a provision when the provision is ambiguous or obscure or when the ordinary meaning conveyed by the text taking into account its context in the Act and the purpose or object underlying in the Act leads to a result that is manifestly absurd or is unreasonable. The long legislative history of s.73(2)(c) discussed herein seems clearly to show that the bar to fixing a date on which an amalgamation of organisations will take effect, so far as extant proceedings are concerned, was confined to criminal proceedings and that civil penalty proceedings fell within the categorisation of proceedings as civil proceedings.

[177] It is to be remembered that under the IR Act as amended by the IR Amendment Act_,_ contraventions of the IR Act remained criminal matters, punishable by imprisonment or fine or both.[117] The IR Act as amended by the IR Amendment Act also provided that breaches of awards or orders of the Commission could give rise to either a civil proceeding or if wilfully contravened were offence under part XI of the IR Act[118] and so would be the subject of a criminal proceeding. Under that Act it was also an offence to incite a person to boycott an award.[119]

[178] It appears to me based on the review of the legislative history of the provision, that purpose of the amendments to the IR Act made by the IR Amendment Act through the addition of the phrase "other than civil proceedings" was to make clear that the section was concerned only with pending criminal proceedings against organisations participating in the amalgamation that related to, relevantly, contraventions of the Act its predecessor, other Commonwealth laws and breaches of awards or relevant orders.

[179] That the amendments made by IR Amendment Act appear to have been part of a suite of measures that were designed, on the whole, to assist and encourage the amalgamation of organisations, and combined with the repeal of restrictions contained in the former s.249 which may have delayed or frustrated the amalgamation of organisations, also provides support for concluding that the purpose of the legislature in amending the RO Act through the IR Amendment Act was to encourage and streamline amalgamations of organisations. This is because the Scheme established by the IR Amendment Act_,_ has been re-enacted by successive Parliaments in, relevantly, substantially the same terms

[180] That this is the case is, in my opinion, clear from the Explanatory Memorandum to the IR Amendment Bill which relevantly provided:

[276]

[181] The various passages from explanatory memoranda as extrinsic material to which I have referred in this decision provide that requisite satisfaction is as to the absence of any unresolved "criminal proceedings" before fixing the amalgamation date. The passages support a conclusion that Parliament intended the reference to "other than civil proceedings" to include civil penalty proceedings as they are not criminal proceedings. The extrinsic materials also suggest that the amendments, or at least some of them, to the IR Act made by the IR Amendment Act were directed at encouraging and facilitating union amalgamations by avoiding or minimising impediments to amalgamation. Limiting the kinds of proceedings which would prevent the Commission from fixing an amalgamation date may be regarded as consistent with such encouragement or facilitation.

[182] There is nothing in the material which would suggest that successive Parliaments in amending, repealing and re-enacting provisions which since at least 1991 have been to the same effect, intended a different outcome or that the evident purpose of the provisions had altered.

[183] Discerning a legislative intent or purpose of a provision also requires that attention be given to the entirety of the amalgamation scheme introduced by the IR Amendment Act and the way in which each of the discrete provisions operate harmoniously to comprise the amalgamation scheme. When the words "other than civil proceedings" were introduced, the requirements (which had been in ss. 249(2) (d) and (e) of the IR Act) that the amalgamation scheme had made arrangements for assets and liabilities of the deregistering organisation to become the assets and liabilities of the amalgamated organisation and that there were no penalties imposed on the deregistering organisation remaining unpaid were removed.

[184] Sections 253R of the IR Act (now s.74 of the RO Act) and s.253V (now s.79 of the RO Act) were introduced. The enactment of ss. 253R and 253Q together with the removal of the pre-conditions that had been in ss. 249(2) (d) and (e) suggests that the legislature's purpose was that there was no longer a need to impede organisation amalgamations because of outstanding civil proceedings as any civil liabilities would now transfer to the amalgamated organisation by operation of the statute.

[185] I therefore consider that the legislature history, as context, also supports a conclusion that "civil proceedings" in s.73(2)(c) of the RO Act, includes "civil penalty proceedings". It also supports a conclusion that "proceedings" where first appearing in s.73(2)(c) is confined to "criminal proceedings".

[186] I now deal briefly with the amendment earlier noted in the connecting phrase of the operative provision from "in respect of" to "in relation to". The Applicant organisations contend that the amendment was one of importance. They contend that the phrase "in relation to" is of greater width than "in respect of", with the result that a wider range of unlawful conduct would be caught. They say that the words "in relation to" are of broad import and require "no more than a relationship, whether direct or indirect, between two subject matters."[121]

[187] The Applicant organisations contend that as a result of the amendment, the proceedings would not necessarily have to be for direct contraventions or breaches of the kind described. Rather, the impugned conduct need not itself be a breach of the relevant laws or instruments identified in the provision, but may derive from or encourage such a breach. They contended, for example, that a threat of an assault made to force a breach of an award or agreement (which breach would in itself sound in a civil penalty proceedings) may be criminal conduct in relation to such a breach, within the meaning in s.73(2)(c) though not a breach in itself (though I suspect this would amount also to a contravention, as the person making the threat would be involved in the breach).[122] In this scenario, the organisation's official making the threat could be charged with the crime of assault and the organisation employing the official, pursuant to the doctrine of vicarious liability, could also be held liable for the criminal offence.[123] The Applicant organisations provide a further example in relation to orders under (iii). They say that an organisation's official may threaten assault to force a breach of an order made under s.164 (order to perform and observe rules), or order under s.167 (order that a union accept a person as a member). They contend that the same analysis would apply - a criminal offence in relation to such a breach. They contend that these examples provide an explanation of the type of proceeding that s.73(2)(c) is intended to capture if civil penalty proceedings are to be excluded from s.73(2)(c) and it gives parts (ii) and (iii) "work to do".

[188] The Objectors contend that if s.73(2) of the RO Act is confined in its operation to criminal proceedings then ss.73(2)(c)(ii) and (iii) would have no practical operation. They contended that consistent with authority, the Commission should strive to give every word in s.73(2)(c) effect and so there must be a consideration of whether any other construction would give the words, that the Objectors say would have no effect, some practical effect. They say that this is all the more the case because when the RO Act was enacted, the provisions were updated to reflect instruments under the FW Act, namely a "modern award" and an "enterprise agreement".

[189] I consider that there are two answers to this contention. The first is contained in the summary of the Applicant organisations contentions appearing above. The second is that, whilst the approach to the construction of words in a section of the statute contained in the Objector's submissions is undoubtedly correct, the more accurate position is, as the Applicant organisations point out, more nuanced.

[190] Whilst it is trite that the Courts should strive to give all provisions in a statute purpose and meaning as a general principle of construction, departure from it in some instances will be appropriate. The authorities recognise that the principle is subject to an overriding consideration that it may not be possible to give a full and accurate meaning to every word in a statute.[124] Where this is the case, the task of a court is to construe the words in a manner that produces the greatest harmony and the least inconsistency.[125]

[191] In appropriate circumstances a court may be prepared to adopt a purposive approach to statutory construction and will "read down" or "read out" words if satisfied that the words appear in a statute inadvertently due to a drafting oversight and must be omitted to avoid absurdity or an irrational result.[126]

[192] I consider that the provisions have some continuing practical utility if the words "civil proceedings" in s.73(a)(c) include "civil remedy" proceedings.

[193] In reliance on the preparedness of the court to adopt a purposive approach to statutory construction and to "read down" or "read out" words in a statute the Applicant organisations also contended that the words in ss. 73(2)(c)(ii) and (iii) can be "read out" out on the basis that they appear in the statute inadvertently. The Applicant organisations rely on the fact that in 1991 when the words "other than civil proceedings" were inserted into the predecessor provision, the statute provided that breaches of awards or order of the Commission could give rise to both civil and criminal proceedings.

[194] As earlier indicated, under the IR Act particular types of breaches of awards or orders of the Commission would give rise to criminal offences. Section 311 of the IR Act provided that a wilful contravention of an award or an order of the Commission was an offence and s.312 provided that inciting a person to boycott an award was an offence.

[195] The Applicant organisations contend that this provides a cogent explanation as to why in 1991, the legislature retained the references to breaches of awards and orders if civil penalty proceedings were intended to fall within the exclusion. They also contended that the legislature retained the reference to awards and orders in the WR Act (and the subsequent statutes) under which breaches of awards no longer could give rise to criminal sanctions, due to an inadvertent drafting oversight.

[196] Whilst there is some attraction to this explanation, it seems to me that I would also need to accept that the inclusion of a "modern award" and an "enterprise agreement" in the provision when the RO Act was enacted was also inadvertent drafting. This may be so, but it seems to me that if words are to be read down or out of the statute, then that is a matter best left to a court. That said, it seems to me that s.73(2)(c)(ii) or (iii) of the RO Act have little if any work to do even if I were to accept that the word "proceedings" where first appearing in s.73(2)(c) includes civil penalty proceedings. This is because a breach of a modern award or enterprise agreement is unlawful conduct because it is a contravention of s.45 of the FW Act in the case of a modern award and s.50 of the FW Act in the case of an enterprise agreement. Provision for these contraventions is already made in s.73(2)(c)(i) of the RO Act. Section 73(2)(c)(ii) therefore appears to have little work to do at all. A similar analysis may be made in respect of breaches of orders made under the RO Act and the FW Act in respect of s.73(2)(c)(iii). Such breaches are contraventions of the RO Act and the FW Act for which provision is already made in s.73(2)(c)(i).

[197] As I have already indicated, I consider that there is some continuing practical utility, as earlier set out, in the provisions if s.73(2) is confined in its operation to criminal proceedings. But even if this be wrong, that is not reason enough to read into the words of the statute a meaning which is against the weight of judicial authority as to the nature of civil penalty proceedings, and contrary to the meaning of "civil proceedings", the text read in the context of the statute as a whole and the other contextual considerations to which I have earlier referred. One would also need to ignore the entire legislative history of the provision.

[198] In light of the above I consider that the ordinary meaning of the words "civil proceedings" in s.73(2) of the RO Act taking into account the purpose or objects of the legislature as disclosed by the text of the statute, and the context of the statute as a whole in which they appear, include "civil penalty proceedings". This conclusion is also consistent with High Court authority which, as early stated, appears to have settled that such proceedings are civil proceedings. The extrinsic material to which I have referred and given consideration confirms that meaning. To conclude otherwise would require reading into the text words that are not there. Consequently, in my respectful opinion, the scope of inquiry required by s.73(2)(c) is likely to be confined to criminal proceedings of the described kind that are pending against an organisation participating in the amalgamation. However to resolve the issue before me I need not go further than to conclude as I do that "civil proceedings" in s.73(2)(c) includes civil penalty proceedings.

[277]

[199] On 2 February 2018 I reserved my decision on whether to fix an amalgamation day in accordance with s. 73 of the RO Act. By email correspondence to my chambers on 18 February 2018 solicitors for the Objectors alerted me to proceedings that had been commenced or were to be commenced against the MUA in the Supreme Court of Victoria in which Victorian International Containers Terminal Ltd (VICT) an operator of a cargo terminal business located primarily at 78 Webb Dock Drive Port Melbourne in the State of Victoria (the Site) seeking orders that the MUA be punished for its contempt in breaching an order made by Justice McDonald on 12 December 2017 (Contempt Proceeding). The Objectors sought an opportunity to be heard in relation to the proceeding and the implications of the proceeding on my capacity to fix an amalgamation day.

[200] After seeking the views of the Applicant organisations, I determined that it would be appropriate to hear the Objectors and I made directions for the filing of written submissions and fixed a further date to hear oral submissions.

[201] On 1 December 2017 VICT commenced proceedings in the Supreme Court of Victoria by way of writ and indorsement of claim and in which it sought damages, injunctions and costs. The conduct about which complaint is made in the indorsement of claim can be briefly described as the organising, establishment, maintenance and participation in a continuous picket at or in the vicinity of the Site; related watching and besetting, obstructing together constituting the tort of nuisance; the tort of unlawful interference with contractual relations; and unlawful interference with the trade or business of VICT.

[202] Also on 1 December 2017 it appears that VICT succeeded in obtaining an interlocutory order directed to the MUA restraining it, whether by itself, its officials, employees or agents, from preventing or hindering or interfering with the free passage of persons and/or vehicles to and from the Site and from advising, causing, inducing, or procuring or inciting any person from preventing or hindering or interfering with that free passage.

[203] Further, the MUA, whether by itself, its officials, employees or agents, was restrained by the order from advising, causing, inducing, procuring or inciting any person to attempt to be present within 100 metres of any access point to the Site, subject to some enumerated circumstances in which such presence is permitted or authorised.

[204] On 12 December 2017, Justice McDonald made further orders restraining relevantly the MUA whether by itself, its officials, employees or agents from being present within 100 metres of the Site (described in the order as the "Safe Space") subject to some enumerated circumstances in which such presence was permitted or authorised. Reasons for making the further orders were also published.[127]

[205] In furtherance of the proceeding commenced on 1 December 2017, VICT filed a statement of claim on 27 January 2018 in which it alleges that a consequence of the unlawful picket, nuisance and unlawful interference with its contract, trade and business, it has suffered loss and damage and it seeks substantial damages from, inter alia the MUA.

[206] The Contempt Proceeding was initiated by summons filed in the Supreme Court of Victoria on 16 February 2018. The schedule to the summons contains a statement of charges (although it contains only one charge) as follows:

[282]

[207] The Objectors contend that as a consequence of the Contempt Proceeding the Commission cannot be satisfied that there are no proceedings pending against any of the existing organisations of the kind prescribed by s.73(2)(c). According to the Objectors, the Contempt Proceeding is not a "civil proceeding" because it is either sui generis, or alternatively, because it is a criminal proceeding. The Objectors contended that the Contempt Proceeding, is a proceeding "in relation to" one or more of the matters listed in s.73(2)(c)(i)-(iii) of the RO Act.

[208] The Applicant organisations contend that the issue whether a Contempt Proceeding is a civil proceeding within the meaning of s.73(2)(c) of the RO Act has been authoritatively determined by the High Court with the result that the Court has made it abundantly clear that contempt proceedings are civil proceedings. The Applicant organisations also contended, without conceding that the contempt proceeding at issue is not a civil proceeding, that there is not the requisite connection between the contempt proceeding and the matters set out in s.73(2)(c)(i) - (iii). This is because there is no apparent or obvious connection of the requisite kind between the contempt charge and any one or more of the relevant matters identified in s.73(2)(c)(i)-(iii).

The issues requiring determination

[209] As the Court of Appeal in Grocon[128] observed, the discourse in the authorities concerning contempt[129] is littered with language which is imprecise and potentially confusing and the application of that language to a particular statutory context is a fraught task, made all the more difficult "where the available statutory choice is between "civil proceedings" and "criminal proceedings" . . . for an offence".[130]

[210] There are two issues that require determination in respect of the Contempt Proceeding and its impact upon my satisfaction as to the absence of any proceeding against an organisation participating in the amalgamation of the kind for which provision is made in s.73(2)(c) of the RO Act. The first is whether the Contempt Proceeding is a "civil proceeding" caught by the exception in s.73(2)(c). Secondly, if the Contempt Proceeding is a "proceeding" is it one that is "in relation to" one or more of the matters enumerated in s.73(2)(c)(i)-(iii)? There is no dispute that the Contempt Proceeding is "pending against" one of the Applicant organisations, namely the MUA.

Is the Contempt Proceeding a "civil proceeding" within the meaning of s 73(2)(c)?

[211] The distinction between a civil contempt and a criminal contempt was canvassed at length by the High Court in Witham v Holloway[131] (Witham). There the High Court said the differences upon which the distinction is based are, in significant respects, illusory.[132] Witham was concerned with a finding of contempt in the Supreme Court of New South Wales arrived at by applying the civil standard of proof. On appeal, the New South Wales Court of Appeal accepted that as the contempt was a civil contempt it was sufficient that there be proof of the contempt on the balance of probabilities. The High Court in Witham reversed that decision and held that all proceedings for contempt, whether they involve civil or criminal contempt, must realistically be seen as criminal in nature and so the contempt had to be proved beyond reasonable doubt.[133]

[212] The plurality (Brennan, Dean, Toohey and Gaudron JJ) discuss the differences as follows:

[297]

[217] A Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union and Others v Director, Fair Work Building Industry Inspectorate[141] (CFMEU v Director, FWBII) dealt with an appeal against a refusal by the primary judge to grant an interlocutory application to vacate hearing dates that had been set aside to determine an application by the Director of the Fair Work Building Industry Inspectorate seeking the imposition of pecuniary penalties and related orders against the CFMEU. In separate proceedings in the Supreme Court of Victoria the CFMEU had been convicted of five criminal contempts for conduct between 28 and 31 August 2012 at the Myer Emporium site located at Lonsdale Street, Melbourne. A fine of $1.05 million for the criminal contempts was imposed by the Supreme Court on the CFMEU. At the time of the proceeding before the Full Court, the CFMEU had appealed against the conviction to the Court of Appeal, which had reserved its judgment.

[218] The interlocutory application made by the CFMEU was on the ground that s.553(1) of the FW Act, to which earlier reference has been made and which provides that proceedings for a pecuniary penalty order against a person for a contravention of a civil remedy provision was stayed if criminal proceedings were commenced or had already commenced against the person for an offence and the offence was constituted by conduct that was substantially the same as the conduct in relation to which the order would be made. Section 553(2) of the FW Act to which earlier reference has also been made, provides that a proceeding for a pecuniary penalty order could be resumed if the person was not convicted of the offence but otherwise the proceedings for pecuniary penalty order were dismissed.

[219] The Full Court held that the contempt charges brought against the CFMEU in the Supreme Court for which it had been convicted were or are criminal proceedings for an offence.[142] Therefore the proceedings against the CFMEU stood dismissed by reason of s.553(2) of the FW Act (pecuniary penalty orders in relation to the conduct that is substantially the same as the conduct the subject of the contempt charges).[143] The Full Court also held that if the CFMEU is subsequently "not convicted" by reason that its appeal to the Court of Appeal is upheld and the convictions quashed, the Director may resume that aspect of the proceedings to seek a pecuniary penalty order.[144]

[220] The Full Court said the following about the nature of contempt proceedings:

[321]

[227] It is to be observed that the contempt proceeding at issue in Boral were commenced in the same way as the Contempt Proceeding at issue here. It may be that the Contempt Proceeding results in an ultimate conclusion that the contempt was contumacious, thus a criminal contempt.

[228] It seems to me that the following summary propositions may be discerned from the authorities discussed above. First, although the differences upon which the distinction between civil and criminal contempt are based are in significant respects illusory, the distinction remains. Secondly, all contempt proceedings whether civil or criminal contempt are criminal in nature and the contempt alleged is to be proved beyond reasonable doubt. Thirdly, a proceeding seeking punishment for contempt by breach or disobedience of a Court order may result in the contemnor being convicted of a criminal offence if the breach or disobedience is contumacious. Fourthly, the question whether to record a criminal conviction for a contempt committed by breach or disobedience of a court order is determined after a breach or disobedience has been established, that is at the "penalty" stage of the proceeding at which time, a criminal conviction may be recorded if the Court concludes that the breach or disobedience was contumacious.

[229] All that said, although proceedings for contempt have variously been described as sui generis, quasi criminal, or criminal in nature, having regard to the weight of authority it cannot be said that a contempt proceeding for a breach or disobedience of a Court order, as is the case here, can properly be described as a criminal proceeding. In light of the analysis in Boral it must now be accepted that proceedings for contempt brought for breach or disobedience of a Court order whether the disobedience will later be determined as wilful and contumacious or otherwise, is a civil proceeding. Given my earlier rejection of the contention that the purpose or a purpose of s.73(2)(c) of the RO Act is normative and is designed to encourage the setting enforcement of standards, I see no good reason why I should construe the words "civil proceedings" in s.73(2)(c) as excluding the Contempt Proceedings in circumstances where the High Court in Boral has described relevantly the same kind of proceeding involving the CFMEU, though for criminal contempt, as nonetheless a civil proceeding. It follows that I am satisfied that the Contempt Proceeding is a civil proceeding and is caught by the exclusionary words "other than civil proceeding" in s.73(2)(c).

[230] Given my conclusion it is unnecessary for me to consider the second aspect of the argument, that is, if the Contempt Proceeding are not civil proceedings caught by the exclusion, whether there is the necessary connection between that proceeding and the contraventions and breaches enumerated in s.73(2)(c)(i) - (iii) of the RO Act. However since the issue was fully ventilated before me I will make the following observations. I consider that it is unlikely to be the case that the Contempt Proceeding will be in relation to one or more of the matters s.73(2)(c)(i) - (iii) unless in the Contempt Proceeding or in the substantive proceeding that gave rise to the order which is said to have been breached or disobeyed, it is alleged as part of the substratum of facts that particular conduct about which complaint is made in one or other of those proceedings is a contravention of an identified Commonwealth law s.73(2)(c)(i) or a breach of a relevant industrial instrument or a relevant order identified in s.73(2)(c)(ii) or (iii). In my opinion it would be insufficient to establish the relevant requisite connection to assert that particular conduct, identified in a writ or statement of claim about which complaint is made might also, for example, constitute a breach of a provision in a Commonwealth law even though no allegation of that kind is actually made. No such allegation that particular conduct is or was a contravention of any Commonwealth law or a breach of a relevant instrument or order of the kind is contained in the summons, the writ or the statement of claim. It is in my respectful opinion not to the point to suggest that some of the identified conduct is capable of constituting a relevant contravention without expressly making that allegation.

[231] Were it necessary for me to do so, I would conclude that if the Contempt Proceeding is not a "civil proceeding" within the meaning of s.73(2)(c) I am not persuaded that the Contempt Proceeding, though pending against the MUA, is "in relation to" any of the matters set out in s.73(2)(c)(i)(iii) of the RO Act.

[323]

[232] It is uncontroversial and I am satisfied that there are no criminal proceedings (noting the Objector's contention as to the possible character of the Contempt Proceeding - which I have rejected) pending against any of the CFMEU, the MUA or the TCFUA in relation to contraventions of the RO Act, the FW Act, or other Commonwealth laws; or breaches of modern awards or enterprise agreements; or breaches of orders made under the RO Act, the FW Act, or other Commonwealth laws.

[233] As I had earlier noted, the Objectors sought to rely on certain material contained in the first two affidavits.[153] Objection was taken by the Applicant organisations to much of the affidavit material on relevance grounds. Dealing first with the affidavit material to which objection was not taken, having regard to my conclusion as to the proper construction of s.73(2)(c), I do not propose to take that material into account. It is material that goes to pending civil penalty proceedings against the Applicant organisations and is not relevant to any issue about which I must be satisfied under s.73 of the RO Act. The same must be said of the affidavit of Mr Coonan which deals with the Contempt Proceeding.

[234] As to the material to which objection was taken, it deals with the conduct of officials of the Applicant organisations, public statements made by them, and the conduct the Applicant organisations' (and that of various officials), which has been found to have been contravening conduct attracting civil penalties in various civil penalty proceedings, is not relevant to any matter I must determine. I do not take it into account.

[235] That affidavit material does not disclose any criminal proceedings or any other relevant proceedings pending against any of the Applicant organisations.

[236] Therefore, for the reasons stated, I am satisfied that there are no proceedings (other than civil proceedings) pending against the CFMEU, the MUA or the TCFUA in relation to any matter identified in s.73(2)(c)(i)(ii) or (iii) of the RO Act.

Construction, Forestry, Mining and Energy Union; The Maritime Union of Australia and Textile, Clothing and Footwear Union of Australia [2018] FWC 1017 (6 March 2018)

At a glance

Court

Decision date

Source

Judgment (423 paragraphs)

Construction, Forestry, Mining and Energy Union; The Maritime Union of Australia and Textile, Clothing and Footwear Union of Australia [2018] FWC 1017 (6 March 2018)

Legislation Cited (23)

Cases Cited (50)