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

Federal Court of Australia (Full Court)|2016-12-21|Before: Ms J, Allsop CJ, Jessup JJ

Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 Trade Practices Commission v CSR Limited [1990] FCA 762; (1991) ATPR 41-076

National Practice Area: Employment & Industrial Relations

Counsel for the Appellants: Ms RM Doyle SC & Ms J Watson

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Appellant

AND: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Respondent

JUDGES: ALLSOP CJ, NORTH AND JESSUP JJ DATE OF ORDER: 21 DECEMBER 2016

The appeal be allowed in part.
Order 13 made by the Court on 13 May 2016 be set aside.
Otherwise, the appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 The facts and circumstances of this appeal are set out in the reasons for judgment of Jessup J. I need, therefore, only to refer to such facts as are convenient and essential to place my reasons in context. 2 The first ground of appeal was directed to whether the Court had power to make Order 13. I agree with Jessup J that there is and was no statutory foundation for the order. I agree with his Honour's reasons in respect of ground 1, but given the importance of the question I would also express my reasons in my own words. 3 Section 545(1) of the Fair Work Act 2009 (Cth) (the Act) finds its mirror provision in s 23 of the Federal Court of Australia Act 1976 (Cth) (the FC Act). Order 13 sought to restrain the union from paying the penalty imposed on the union official, Mr Myles. The foundation of the order was said to be either s 545(1) or s 23 in aid of, and ancillary to, the imposition of the penalty on Mr Myles. 4 The proper approach to such a provision can be found in the first paragraph of the reasons for judgment of Deane J in Jackson v Sterling Industries Ltd [1987] HCA 23; 162 CLR 612 at 622 dealing with the slightly differently worded s 23. …the power is restricted to the making of the 'kinds' of order, whether final or interlocutory, which are capable of properly being seen as 'appropriate' to be made by the Federal Court in the exercise of its jurisdiction. (This expression of the matter was approved by Mason CJ (at 616), Wilson and Dawson JJ (at 616) and Brennan J (at 621).) 5 Section 545(1) does not use the word "kinds" as s 23 does; but, like s 23, it requires the consideration and making of a choice of what is "appropriate" in the exercise of judicial power upon the satisfaction of relevant matters: that someone has contravened or proposes to contravene a civil remedy provision. That consideration and choice must have limits. Such limitation comes from the requirement that the order is capable of properly being seen as appropriate to be made if there has been or is threatened to be a contravention. Such a judgment, and any restrictions or limitations on the choice, will be derived from the text and context of the statute, the nature of judicial power and inhering considerations of legal legitimacy. 6 The object of the imposition of a penalty under s 546 is deterrence (specific and general). As French CJ, Kiefel, Bell, Nettle and Gordon JJ said in Commonwealth v Director, Fair Work Building Inspectorate [2015] HCA 46; 326 ALR 476 (the Agreed Penalties Case) at 490 [55], citing French J in Trade Practices Commission v CSR Limited [1990] FCA 762; (1991) ATPR 41-076 at 52,152: The principal, and…probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act. 7 Thus, the first restriction upon, or informing consideration for the making of, any order under s 545(1) (at least insofar as it is directed to supplementing an order for a penalty) would be that the order be capable of being seen as relevant to deterrence. That may be a necessary consideration, but it does not follow that it is sufficient to make the order one for which the Court has power. Another, and obvious, restriction or limitation on s 545(1) is that it does not authorise the Court to impose a monetary penalty, independently of the source of power in s 546. That conclusion arises naturally from the dealing with the subject by express words in s 546. 8 The emphasis of the High Court in the Agreed Penalties Case upon the differences between civil penalties and crime (especially as expressed at 480-485 [16]-[32]) raises the question that lurks in the different language of the Full Courts in Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 at 264-265 [61]-[64] and NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285 at 296 and 297 as to whether it is proper to characterise a civil penalty as punishment. (See the discussion by Greenwood J in Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2016] FCA 453; 336 ALR 1 at 24-25 [74]-[75] and by Wigney J in Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited [2016] FCA 1516 at [78]-[83].) It is to be noted that the first definition of 'penalty' in the Oxford Dictionary is "punishment". 9 If one eschews the word "punishment", a penalty is at least to be understood as the state (here the Commonwealth) authorising the imposition by Court order of a monetary penalty in consequence of behaviour that contravenes the law in order to exact a price in the life or business of someone sufficiently high to deter that person or others from behaving in that way. 10 The order in question here was made against the union in order that the imposition of the penalty against Mr Myles, the union official, have more "sting" (to use language in argument employed by senior counsel for the Commissioner). If the penalty is properly to be characterised as punishment, the object of Order 13 is to make the punishment feel more severe, without amending the nominal amount of the penalty. If the penalty is not to be characterised as punishment, but as a price on contravention, the object of Order 13 is to make that price feel higher without amending the nominal amount. 11 Such an order is plainly relevant to deterrence. Thus, if it is to be concluded that it is not capable of properly being seen as appropriate, considerations leading to that conclusion must be derived elsewhere and otherwise. Such considerations derive from two sources: one from the terms and structure of the statute; the other from inhering legal considerations. As to the statute, the power to impose the penalty comes from s 546. Order 13 is intimately bound up with the penalty and the amount of the penalty. It is directed to the effect of the penalty. Just as s 545 cannot be used to found an order to pay a monetary sum (in addition to the penalty imposed under s 546) so it cannot be used to increase the effect of the nominal amount. The source of the power to impose a penalty is, and is only, s 546. That conclusion is reinforced by another legal consideration. The order purports to order a party to refrain from doing an act which was not said to be unlawful and to control how that party uses its own property. The object of the order is to aid the force and effect of the imposed penalty. Such an imposition on the freedom of a person or organisation to conduct his, her or its own affairs, being intimately bound up with the penalty itself, should find its source of power in clear and express words of the statute. 12 This conclusion involves a necessary choice as to the limits of appropriateness. If the characterisation of the penalty as punishment for the object of deterrence is correct, one proposition upon which that choice is founded is that punishment should be sourced in clear words. If punishment is not the appropriate characterisation of the penalty, nevertheless, the ordering of a party not to do an act not said to be unlawful to increase the effect of a nominal price on contravention should also find its source of power in clear words. Whether the penalty under s 546 is characterised as punishment or not, these considerations can be seen as an aspect of the principle of legality. 13 If s 545(1) was a valid source of power for Order 13, it would also be a lawful source of power for other orders of a varied and broad kind that could intrude on the legitimate freedoms and rights of persons, whether contravenors or not. Examples of such orders might be: that banks not lend to a contravenor so as to force the contravenor to sell an asset to pay the penalty; that a contravenor pay the penalty from a particular asset or source; that family or friends of the contravenor not give or lend money to the contravenor to pay the penalty. Such intrusions into the lives of people require a clear statutory source. So does an order in aid of the force of the penalty that enjoins a party using its assets in a manner not shown to be unlawful. 14 None of the above should be seen as an encouragement to any person or organisation to act in defiance of the law, or any condonation of such conduct. If a penalty is to be seen as a price on contravention that is sufficiently high to deter repetition by a contravenor, and that object is not being fulfilled, the answer may lie in the inadequacy of the penalty. It is a matter for Parliament to set the penalty and to set the consequences of repeated contravention. The imposition of penalties is not the only mechanism for requiring and exacting obedience to the law. If an organisation or a person is behaving in a way that would indicate an unwillingness to obey a Commonwealth statute and such conduct could be seen as likely to repeat itself, injunctive relief may be available. Section 545(2)(b) provides for an order awarding compensation for loss that a person has suffered because of a contravention. The interruption of a concrete pour on a building site leading to the necessity to remove the partially laid concrete and to repeat the otherwise expensive exercise might well be the foundation for an order for compensation. 15 How the statute provides for the regulation of industrial relations is a matter for Parliament. The question here is whether s 545(1) of the Act or s 23 of the FC Act is a source of power for Order 13. In my view neither is. 16 In light of these views as to power, it is unnecessary to deal with the second and third grounds of the appeal as to the necessity of Order 13 to achieve specific and general deterrence and as to the relevance of the source of funds to the exercise of a discretion to make an order of the kind of Order 13. 17 The fourth ground of appeal has two aspects, both of which concern the use of the union's accounts to found an inference drawn by the primary judge as to the use of public funds to pay penalties imposed by the Court. Jessup J has set out the circumstances and context of the issue. I agree with Jessup J that her Honour saw as materially relevant to her decision as to penalty the partially public nature of the funds available to the union. This was not a consideration that was put to her Honour by counsel for the Commissioner. It was a matter of some gravity and, with respect to the primary judge, should have been raised with the parties for it to be relied upon. Thus, I accept the submission that there was a denial of procedural fairness in this respect. 18 The fifth ground of appeal also complained of a lack of procedural fairness in reaching the conclusion at [155] of the reasons that the union engages in a deliberate strategy of defending knowingly unlawful action and "eventually capitulating when the time [is] right." I agree with the reasons of Jessup J in relation to this ground. The nature and content of the evidence before the primary judge naturally provoked the question of characterising the pattern of behaviour of the union in the many examples of contravening conduct. Her Honour's description of a strategy was a legitimate framing of that conduct. That is not to say that some of the lapse of time in this case was not attributable to the Supreme Court proceedings. I do not think that there was any unfairness involved in the finding. 19 The sixth ground of appeal complained of a failure to give other than minimal weight to co-operation. I agree with the reasons of Jessup J in this regard. I do not read in her Honour's reasons a confusion between co-operation and contrition. In the absence of any contrition, and in light of the nature of the behaviour, it was entirely open to her Honour to give minimal weight to the making of the admissions. 20 The final complaint concerned the penalty imposed on Mr Myles for the 17 May 2013 contravention. It was submitted that it was manifestly excessive. I agree with the reasons of Jessup J on this ground; but would also express my reasons in my own words. The sentence was almost the maximum penalty. Her Honour's reasons for imposing a penalty of $10,000 for his conduct on 17 May 2013 and $8,000 for his conduct on 16 May 2013 are both rational and reasonable. There was no submission that the $8,000 penalty was excessive. Rather, it was submitted that the conduct on the 16th in causing the blockade and disruption of the concrete pour was far more serious than the threat on the following day. This, with respect, is too simplistic. Undoubtedly the conduct of 16 May to interrupt a concrete pour was very serious. But so was Mr Myles' conduct on the following day. In an attempt to intimidate Mr Summerfield, Mr Myles threatened "a war" unless the demand for a delegate on site was acceded to. The threat was made with an apparent sense of impunity after the events of the previous day. This was his own personal threat; in the context of the previous days' events the primary judge was entitled to consider it very serious conduct. No error has been shown. 21 It was also submitted that the total of $18,000 was excessive in the light of the principle of totality. I do not accept this. The conduct of Mr Myles on the two days was extremely serious. The question of the total proportionality of the sentence is an evaluative one. Her Honour addressed this question at [158]-[160] of her reasons. There was no error in her Honour's approach. The object of the imposition of the penalty was deterrence. Her Honour expressed particular concern about the sense of impunity displayed by Mr Myles. There is no basis for disagreement with that concern or for a view that the penalties imposed on Mr Myles were disproportionate to his deliberately unlawful conduct. 22 The success of ground 4 leads to the question as to whether it is necessary to resentence the union and Mr Myles. 23 Whilst I am of the view that the matter referred to in ground 4 was of sufficient seriousness as to require the union (at least) to be put on notice of the point, I doubt whether it had anything more than a nominal effect on her Honour's sentence. In any event, if I were required to re-exercise the task of imposing a penalty on the union and Mr Myles, I would not impose any lesser penalties than her Honour imposed. Given the seriousness of the conduct I do not consider that any lesser sentence is warranted in law. The deliberate nature of the contraventions, the history of contraventions by both the union and Mr Myles, the absence of any contrition, the apparent sense of impunity with which both acted, and the reasons so clearly expressed by the primary judge (leaving aside the issue of public moneys), lead me to the view that the penalties imposed by her Honour were entirely appropriate. I would impose no lesser amounts. I therefore would not set aside the orders for penalties, as made. 24 The orders that I would make are:

Appeal allowed in part.
Set aside Order 13 made by the Court on 13 May 2016.
Otherwise dismiss the appeal. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

NORTH J: 25 I have had the advantage of reading the draft reasons for judgment of the Chief Justice and Jessup J in this appeal. 26 I agree with both the Chief Justice and Jessup J that ground 1 should be upheld because on the proper construction of s 545(1) of the Fair Work Act 2009 (Cth) the section did not authorise order 13 made by the primary judge. I agree with the reasons for that conclusion expressed by the Chief Justice. 27 In view of my conclusion on ground 1 it is not necessary to deal with grounds 2 and 3. 28 I agree with Jessup J for the reasons expressed by him that ground 4 should be upheld. However, I agree with the Chief Justice for the reasons he gives at [23] that success on this ground has no consequence on the orders to be made on the appeal. 29 I agree with Jessup J that grounds 5 and 6 should be dismissed for the reasons which he gives. 30 I agree with the Chief Justice that ground 7 should be dismissed for the reasons which he gives. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

JESSUP J: 31 This is an appeal from certain orders made by a single Judge of the court on 13 May 2016 in a proceeding in which the Director of the Fair Work Building Industry Inspectorate ("the Director"), alleged that the appellants, the Construction, Forestry, Mining and Energy Union ("the CFMEU") and Joe Myles, an organiser in the employ of the CFMEU, contravened s 348 of the Fair Work Act 2009 (Cth) ("the FW Act") on 16 and 17 May 2013 at the construction site of the City to Maribyrnong River Project Package B, being part of the Victorian government's Regional Rail Link Project. The appellants' liability under s 348 was the subject of concessions which they made in the proceeding before the primary Judge, the contested aspects of that proceeding, which led to her Honour's judgment of 13 May 2016, relating to penalties only. 32 By the operation of item 19 of Sch 2 to the Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth), on 2 December 2016 the respondent, the Australian Building and Construction Commissioner, took the place of the Director as a party to the appeal. 33 The first six orders made by the primary Judge on 13 May 2016 were in the nature of declarations as to the appellants' contraventions of s 348, and are not now controversial. The present appeal is brought against the next seven orders which her Honour then made, which were as follows (where "the first respondent" was the CFMEU and "the second respondent" was Mr Myles): 7. The first respondent pay a penalty of $45,000 in respect of its contraventions of section 348 of the Act as declared in paragraphs 1 and 2 above. 8. The first respondent pay a penalty of $15,000 in respect of its contravention of section 348 of the Act as declared in paragraph 3 above. 9. The second respondent pay a penalty of $8,000 in respect of his contraventions of section 348 of the Act as declared in paragraphs 4 and 5 above. 10. The second respondent pay a penalty of $10,000 in respect of his contravention of section 348 of the Act as declared in paragraph 6 above. 11. The penalties in paragraphs 7 and 8 are to be paid to the Commonwealth within 30 days. 12. The penalties in paragraphs 9 and 10 are to be paid to the Commonwealth within 90 days. 13. The first respondent must not directly or indirectly indemnify the second respondent against the penalties in paragraphs 9 and 10 above in whole or in part, whether by agreement, or by making a payment to the Commonwealth, or by making any other payment or reimbursement, or howsoever otherwise. 34 The appellants have seven grounds of appeal. The first and second challenge Order 13, while the fourth, fifth, sixth and seventh relate to the determination of the penalties set out in Orders 7, 8, 9 and 10. The third ground was the subject of some ambiguity in the submissions of the appellants, to which I shall make further reference in due course. While the appeal is also against Orders 11 and 12, no ground of appeal related to them, and no challenge was advanced in respect of them on the hearing of the appeal.

THE FIRST GROUND OF APPEAL 35 The point raised by the first ground of appeal is whether the court had power, under s 545 of the FW Act, to make an order in the terms of Order 13. Section 348 is a "civil remedy provision", which makes ss 545 and 546 relevant where a contravention has been found. Subsections (1) and (2) of s 545 provide as follows: (1) The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. (2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following: (a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention; (b) an order awarding compensation for loss that a person has suffered because of the contravention; (c) an order for reinstatement of a person. 36 Section 546 provides as follows: (1) The Federal Court, the Federal Circuit Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision. Determining amount of pecuniary penalty (2) The pecuniary penalty must not be more than: (a) if the person is an individual - the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or (b) if the person is a body corporate - 5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2). Payment of penalty (3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to: (a) the Commonwealth; or (b) a particular organisation; or (c) a particular person. Recovery of penalty (4) The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable. No limitation on orders (5) To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545. 37 The primary Judge did not rely on s 546 as a source of power to make Order 13. Rather, it was the general power in s 545(1), to make "any order the court considers appropriate", upon which her Honour relied. The constructional question which arises on appeal, therefore, is whether s 545(1) carries with it the power to prohibit another person from indemnifying a contravener against the obligation to pay a penalty imposed under s 546(1). 38 The widespread use of civil remedy provisions is a relatively recent phenomenon in this area of the law. Traditionally, s 119 of the Conciliation and Arbitration Act 1904 (Cth) and (correspondingly) s 178 of the Industrial Relations Act 1988 (Cth), under which awards and certified agreements were enforced, were the only sections which provided for the imposition of civil remedies. Immediately before the enactment of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ("the Work Choices Act"), civil remedy provisions appeared in a number of specific contexts in the Workplace Relations Act 1996 (Cth) ("the WR Act"), such as s 170CR (in relation to termination of employment), s 170HI (in relation to the obligations of advisers of those contemplating certain applications), s 170NF (in relation to certified agreements) and s 170VV (in relation to Australian Workplace Agreements). Section 178 remained in its traditional form. 39 The amendments introduced by the Work Choices Act enlarged the range of situations in which civil remedy provisions appeared in the WR Act, but the pattern of incorporating the relevant empowering provisions in the part of the Act that dealt with the subject concerned was continued. For example, s 407 provided for the imposition of penalties in relation to workplace agreements, s 605 did so in the context of the transmission of businesses, s 616 did so in the context of the entitlement to public holidays, s 632 was tied to what would now be called a species of adverse action protection, and so on. In addition, s 719 related to a range of what were called "applicable provisions", such as terms of awards, collective agreements and the Australian Fair Pay and Conditions Standard. 40 Provisions of the kinds just discussed now find expression in s 546 of the FW Act. The drafting of this provision differs from that of its most obvious predecessor under the WR Act, s 719, in this respect. Whereas s 719 used the formula, "an eligible court may impose a penalty", s 546, as noted above, uses the formula, "[the court] may … order a person to pay a pecuniary penalty" (emphasis added in each case). The present appeal was conducted on the common assumption that nothing turned on this difference in language. However that may be, the appeal is concerned primarily with s 545, and specifically with the scope of the formula "any order the court considers appropriate". 41 Before the Work Choices Act, the legislation did not use this formula in anything like the context in which s 545 is located. The closest it came was in s 298U of the WR Act, which related to conduct of the kind that would now be described as adverse action, and which provided: In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders: (a) an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than: (i) in the case of a body corporate - 300 penalty units; or (ii) in any other case - 60 penalty units; (b) an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor; (c) an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate; (d) an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat; (e) injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects; (f) any other consequential orders. The categories of orders that the court could make were, therefore, closed, the least specific category, that for which para (f) of the section provided, being confined to orders that were "consequential". The formula "if the Court considers it appropriate" related to the questions whether to make an order and as to what order, from the stated categories, should be made. It did not open the way for the court to make any order, whether or not in those categories, that seemed appropriate in the circumstances of the case. 42 A significant change in this pattern of things was introduced by the Work Choices Act. Section 807(1) of the WR Act, which corresponded with the previous s 298U, now provided as follows: The Court, on application by an eligible person, may make one or more of the following orders in relation to a person (the defendant) who has contravened a civil remedy provision of this Part: (a) an order imposing a pecuniary penalty on the defendant; (b) an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention; (c) any other order that the Court considers appropriate. Subsection (2) set out the maximum penalties that could be imposed under para (a) of subs (1). Subsection (3) of s 807 provided as follows: The orders that may be made under paragraph (1)(c) include: (a) injunctions; and (b) any other orders that the Court considers necessary to stop the conduct or remedy its effects. 43 The drafting pattern to be seen in s 807(1) broadly reflected that used in other provisions of the WR Act after amendment by the Work Choices Act: see ss 346ZK(1), 616(1), 632(1) and 769(1). Furthermore, it is a drafting pattern that had, by then, appeared in many other federal statutes, commencing, so far as I can see, with s 87B(4) of the Trade Practices Act 1974 (Cth) inserted by the Trade Practices Legislation Amendment Act 1992 (Cth). Before then, the phrase "considers appropriate" was ubiquitous in legislation concerned with governmental, administrative and other instrumental decisions, but it had not, so far as I can see, been used in the context of a discretionary decision to be made by a Chapter III court. 44 Before leaving s 807(1) of the WR Act and other like provisions, I would draw attention to the circumstance that the power under para (c) of that subsection was to make any other order that the court considered appropriate - that is to say, an order of a kind other than as referred to in paras (a) and (b). Under a provision in these terms there would, in my view, have been a strong argument that, as a pure matter of grammatical construction, the power to make any other order could not be used to strengthen, to supplement or to improve upon the efficacy of an order of a kind that was, or could have been, made under the specific provisions of para (a) or para (b). For example, the power of the court in relation to compensation was limited to a requirement that the defendant pay a specified amount. Had the defendant been a person of limited means, and had the court taken the view that he or she could not pay the amount of compensation to which the injured person would conventionally be entitled, para (c) would not, in my view, have opened the gate for the court to impose an obligation to pay compensation on some other person, such as a wealthy relative of the defendant, however "appropriate" such a course might have appeared to the court. 45 The drafting pattern of s 807 and other like provisions was abandoned with the enactment of the FW Act. Two aspects of the change in particular should be noted. First, s 545 now contained, at least in terms, a free-standing, globally applicable, power for the court to make any order that it considered appropriate if it were satisfied that a person had contravened, or proposed to contravene, a civil remedy provision. And secondly, the power to impose penalties was made the subject of a separate section. These changes accompanied, of course, a wholesale rationalisation of the power to impose pecuniary penalties in relation to contraventions of the civil remedy provisions in the FW Act. It is s 546 which now performs service in relation to all such contraventions. Nonetheless, the form in which penal, remedial and other powers are now given to the court differs from what went before. That change in form was the subject of no comment in the parliamentary materials which were relevant to the passage of the Bill which became the FW Act. The conclusion is inescapable that this change was one of drafting only, and did not reflect any legislative intention to alter the substance of the pre-existing law. 46 It is convenient next to turn to how the primary Judge in the present case upheld the existence of a power to make an order of the kind that is challenged in the appellants' first ground of appeal. Her Honour commenced by noting that similar, although not identical, orders had been made by Flick J in Director of the Fair Work Building Industry Inspectorate v Bragdon (No 2) [2015] FCA 998. On the question of power, his Honour had said ([2015] FCA 998 at [23]-[27]): 23 The statutory regime relevant to the identification of those against whom a penalty may be imposed is relevantly no more confined than the power conferred by s 546(1) to "order a person to pay a pecuniary penalty". That phrase encompasses a power to impose a penalty against "an individual" and "a body corporate": s 546(2). 24 Supplementing those powers, and confined to the provisions of the Fair Work Act, s 545(1) contains the power to "make any order the court considers appropriate…". 25 It is concluded that the power to impose a penalty on an "individual" includes a power to ensure that the penalty is in fact paid personally by the "individual" and that he is not reimbursed - either directly or indirectly - by any union of which he is a member or by any associated entity. That conclusion is founded upon the natural and ordinary meaning of the relevant statutory provisions, the object and purpose sought to be achieved by the Legislature in providing for the imposition of penalties on "individuals" and by reference to prior judicial considerations of the principles to be applied. 26 Any other conclusion, it is respectfully concluded, would be to embrace the proposition that the Court lacks power to ensure that any penalty imposed upon an "individual" can truly act as a deterrent to that "individual". A penalty, if it were to be paid or reimbursed by an employing union, would cease to act as a deterrent to the contravening "individual". An "individual" so reimbursed could act with impunity in full knowledge that his employing union conferred what could be seen as a licence for him to continue his past transgressions. The legislative power to revoke or suspend (for example) an entry permit should not be seen as a constraint upon the power conferred by ss 545 and 546 to ensure that a penalty imposed upon an "individual" acts truly as a deterrent. 27 Rejected is the submission advanced on behalf of the Respondents that the Court's sole source of power in respect to the imposition of a penalty is to be found within s 546. Rejected is the submission advanced on behalf of the Respondents that if the source of power is not confined to s 546, it would necessarily have the consequence that the power conferred by s 545 could be exercised (for example) to: • increase the maximum penalty otherwise imposed by s 546(2); or • order that any penalty be payable to a person or entity other than one identified in s 546(3). Also rejected is the suggestion that invoking s 545 as a source of power to ensure that any penalty imposed upon an "individual" be truly paid by the "individual" and not by (for example) an employing union: • could be construed as potentially exposing an individual offender to a sanction different in character to that otherwise contemplated by s 546(4) - the sanction potentially being an action for contempt rather than an action simply to recover a "debt"; and • would create difficulties of enforcement. Where it is considered appropriate to order that a penalty be imposed upon an "individual", it is not considered that there is to be found within s 546 any constraint upon the power to ensure that the penalty imposed is to as act as a true deterrent. The power conferred by s 545 may thus be exercised if it is considered "appropriate" to ensure that the penalty acts as a deterrent. It is unnecessary to consider whether ss 22 and 23 of the Federal Court of Australia Act 1976 (Cth) could also be invoked as additional sources of power. Flick J's judgment was reversed on appeal: Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64. That reversal related to the merits of the matter, rather than to his Honour's treatment of penalties. 47 Returning to the reasons of the primary Judge in the present case, her Honour next noted the terms of s 77A of the Competition and Consumer Act 2010 (Cth) ("the C&C Act"") and of s 199A(2)(b) of the Corporations Act 2001 (Cth) ("the Corporations Act"). Her Honour took the view that these provisions, and others like them, "support[ed] the proposition that orders of this kind [could] be seen, objectively, as advancing the purposes of general and specific deterrence". That understanding of these provisions was challenged by the appellants on appeal, and I shall return to it. I confine myself at this stage to the observation that the advancement of general and specific deterrence was treated by the primary Judge as the purpose of the order which she ultimately made. 48 The primary Judge next dealt with a submission made before her by the appellants that s 546 was the sole repository of the power to make orders "in relation to payment of penalties". They had submitted that, if s 545(1) were to be given the broad construction for which the Director advocated, there would be no reason why the court might not award penalties in excess of the maxima for which s 546(2) provided. The primary Judge rejected that submission, holding that - … as between the more specific power in s 546(1) relating to the imposition of pecuniary penalties limited to certain maximum amounts, and the location of that limited power straight after the more plenary power in s 545(1), together with note 1 to s 545(1), a limit will be implied into the power in s 545(1) so that its exercise cannot cut across the clear intention manifested by parliament in s 546(1) and (2) to authorise the Court to order pecuniary penalties be paid only within a certain monetary range. The primary Judge then noted, "further", that "s 546(5) expressly contemplates that orders may be made which are additional to, and separate from, an order imposing a pecuniary penalty." 49 The primary Judge next observed that it was well settled that discretionary powers conferred upon courts to make orders in response to a breach of statute were "not to be construed narrowly by reference to matters extraneous to the statutory scheme", citing as an example the proposition that a statutory power to order compensation was not to be construed as subject to common law limitations on the award of damages, where those limitations did not arise from the statute in question or accord with its objects and purposes. 50 The primary Judge next referred to what had been said by Barker J in Australian Licenced [sic] Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526, 592 [421]: I have already noted that the Court has a wide power to make "any order" under s 545(1) the court considers appropriate where it is satisfied that a person has contravened a civil remedy provision. The terms of s 545(2) do not limit the ambit of this power to grant an appropriate order. Her Honour also referred to Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union v Thornton Engineering Australia Pty Ltd (2009) 191 IR 315, 317 [7] as authority for the proposition that s 545(1) "may support an order compelling an employer to develop and comply with a program specifying what it will do to ensure it complies" with the FW Act. Summarising, her Honour said that she could see "nothing in the text or context of s 545(1), including the specific power to impose penalties in s 546(1), to indicate that it should be construed to exclude the possibility that a court might make orders of the kind I have made in this proceeding." 51 With apparent reference to the judgment of Flick J in Bragdon, the primary Judge adverted to the principle that a single Judge of the court should follow a conclusion of law reached by another single Judge unless persuaded that the conclusion was plainly wrong. Her Honour said that the "the obiter remarks" by the Full Court in that case did not "appear to doubt" that the court had power to make orders of the kind which she had in contemplation. 52 Were these considerations upon which the primary Judge relied sufficient to sustain the conclusion that s 545(1) of the FW Act provided power for the court to make an order prohibiting the CFMEU from indemnifying Mr Myles against his liability to pay the penalties imposed on him by her Honour? Commencing with Bragdon, I take the view, with respect, that her Honour was wrong to have accorded the judgment of Flick J the deference which would conventionally be due to a final, unreversed, judgment of a single Judge of the court. Although the Full Court in that case did not deal with the power point, it did set aside the orders which Flick J had made, including the order upon which the primary Judge relied in the present case. In my respectful view, once that had been done, the reasoning which underlay the relevant order was deprived of the status which it had previously held as a binding authority of the court. It was not such as attracted the principle that a single Judge of the court should follow a conclusion of law reached by another single Judge unless persuaded that the conclusion was plainly wrong. 53 Nevertheless, the judgment of Flick J in Bragdon does represent the only judicial consideration, before the primary Judge's reasons in the present case, of the question whether s 545(1) of the FW Act confers a power on the court to make an order prohibiting another person from indemnifying a respondent against the payment of penalties. Her Honour was not in error to refer to that judgment, and, particularly since the Director in the present case supported it, we should likewise consider whether the reasoning contained in it sustains a conclusion of the kind reached by the primary Judge. 54 In para 24 of his reasons, Flick J regarded s 545(1) as "supplementing" the power to impose a penalty given by s 546. That was, with respect, to beg the question. If s 545(1) were to be seen as having, within its very generally-expressed scope, the function of permitting the court to "supplement" the power to impose a penalty, the Director would have been three parts of the way to defending the order made by the primary Judge in the present case. But the question of construction which arises, or at least one such question, is whether s 545(1) may be seen in this way. May the power under that subsection be used as a supplement to orders made under the pecuniary penalty provisions of s 546? To assume an affirmative answer to that question is not, with respect, to come to grips with it. 55 In what Flick J said in para 25 of his reasons, there may be discerned a suggestion that the power given by s 546(1), of itself, included the power to prohibit indemnification by another person. His Honour's justification for reading the section in that way, however, was that, otherwise, the court would lack the power to ensure that the penalty would truly act as a deterrent to the person on whom it had been imposed. This is, in my view, an important point. The proposition that the court has power, either under s 546 itself or with the assistance of s 545(1), to improve upon the deterrent effect of penalties imposed in the conventional way is, in my view, controversial. I shall return to that subject below. Here I add only that it is apparent from what Flick J said in para 27 of his reasons that, ultimately, it was in s 545(1) that his Honour sourced the power to make an indemnity prohibition order. 56 Turning to the judgment of the Full Court in Bragdon, the fact is that their Honours said nothing one way or the other on the question of power. I would not yield to the temptation to find in the interstices of their Honours' reasons a subtle hint as to the nature of their unexpressed thoughts on the subject. With respect, I consider that the primary Judge in the present case was overreaching when she said that their Honours did not appear to doubt the existence of the power. Neither, of course, did they appear to confirm it. 57 I turn next to the primary Judge's reliance on s 77A of the C&C Act and s 199A of the Corporations Act. They prohibit a company, or, in the case of s 77A, a body corporate, from indemnifying a person against specified liabilities, including for civil remedies imposed under named provisions of the legislation concerned. In their submissions on appeal, the appellants undertook a detailed examination of the legislative history of these provisions, none of which was put in issue by the Director. Indeed, in submissions made on his behalf, nothing at all was said on the subject. No attempt was made to defend the use to which the primary Judge put ss 77A and 199A. I take the view, with respect, that these provisions contribute nothing to the task of construing s 545(1) of the FW Act. 58 I consider next the primary Judge's rejection of the appellants' submission that, if s 545(1) were to be construed as proposed by the Director, there is no reason why it could not be used to justify the imposition of penalties in excess of the maxima set out in s 546(2). I agree with her Honour that s 545(1) could not be used in this way because the subject of maximum penalties is dealt with specifically in s 546. A broad, general, power in one section cannot be used as an expedient to step outside the limits implicit in another section dealing in detail with a specific subject. With respect to her Honour, however, I would not apply this reasoning merely to reject the submission which had been made by the appellants. The reasoning applies equally, in my view, to the use of s 545(1) as an expedient to improve upon, or to strengthen the efficacy of, the penal outcomes for which the legislature has specifically provided in s 546. This proposition lies at the centre of the debate generated by the appellants' first ground of appeal, and I should say something further about the position which I take in relation to it. 59 What the FW Act describes as civil remedy provisions are statutory obligations or prohibitions enforced by proceedings which are civil in form but which, if successful, lead to punitive outcomes. The power to enforce laws by punishment is a characteristic of an organised state. Punishment is not an outcome to which parties may agree in a contract, for example, and, in the absence of specific legislative mandate, it could not be the outcome of what might be called ordinary civil litigation. Absent s 546, penalties could not be imposed for contraventions of the FW Act. It could never be suggested that the power given by s 545(1), of itself, contains the power to impose a penalty. And, as the primary Judge accepted, it could never be suggested that s 545(1) contains the power to impose penalties other than those set by s 546. From there, the next question must be whether the use of s 545(1) to strengthen the deterrent effect of a penalty imposed under s 546 could be upheld. In my respectful view, merely to frame the question in these terms leads inevitably to a negative answer. 60 The power given expressly by s 546 is limited to requiring a person to pay the stipulated penalty. The effect of an indemnity prohibition order in the form made by the primary Judge is inevitably, in my view, to add to the penal outcome authorised by the section. So much, with respect, is apparent from the view taken both by the primary Judge in the present case and by Flick J in Bragdon that the effectiveness of the deterrent would be enhanced by the making of such an order. I appreciate that the perception which occupies the other side of the coin, as it were, is that, absent such an order, the effectiveness of the deterrent intended by the terms of s 546 might be reduced, ultimately to vanishing point. But the legislature must be taken to have set the limits of the deterrent orders which would be available to the court, with such inherent limitations as they had. In my view, it is not within the power of the court, under s 545(1) or otherwise, to devise for itself a more effective deterrent than that for which the statute provides. 61 It is, of course, irrelevant to the matter presently under discussion that the order which is challenged by the appellants was directed to the CFMEU, also a party to the proceeding before the primary Judge. If the power exists, it could be used to prevent anyone providing any kind of assistance to the person upon whom the penalty is imposed to enable him or her the more easily to meet his or her obligation to pay the penalty. The order could be directed to a friend or relative, for example. It could be directed to a bank or other financial institution. And, if the power exists, an order of this kind could be made notwithstanding that no party had asked for it to be made, since, unlike the position under s 546, under s 545 the court may make an order on its own initiative. Contemplations like this do not, of course, provide strong indications of legislative intent, but they do highlight the consequences of the construction for which the Director contended - consequences which are unlikely to have been anticipated. 62 Counsel for the Director placed reliance on subs (5) of s 546, as their "bridge" between that section and s 545(1). I would not read s 546(5) as a source of any support for the Director's position. That subsection says no more than that an order under s 545 and an order under s 546 may both be made in relation to a particular contravention. That is, of course, commonplace. For example, a contravention may lead both to the imposition of a penalty under s 546 and to an award of compensation under s 546. It does not mean that resort may be had to s 545 to improve upon the efficacy of a penalty imposed under s 546. Indeed, if it be valid - as it undoubtedly is - to assume that the legislature enacted each of these sections with an eye on the other, it might be observed that, in s 546, there is no provision the equivalent of s 545(2). That is to say, there is nothing that says that the terms of s 546 do not limit the generality of s 545(1). 63 There are two other points I would make about the primary Judge's reasons in relation to the matter which has become the first ground of appeal. The first is that I cannot, with respect, see anything in International Aviation or in Thornton Engineering which provided support for the construction which her Honour gave to s 545(1) of the FW Act. 64 The second point is that the approach which her Honour took derives no support from the judgment of the Full Court in Australian Building Construction Employees' and Builders Labourers' Federation v Minister of State for Industrial Relations (1982) 43 ALR 189. That was a criminal contempt case, the penalty imposed on the Federation by the primary Judge having taken the form of a fine. It seems that the General Secretary of the Federation had previously boasted that work stoppages, themselves in contempt, would have the effect of inducing others (presumably builders) to pay the fines which had been imposed on members of the Federation for their refusal to give evidence before a Royal Commission. The Full Court upheld an order made by the primary Judge that the fine in the instant case be paid either by the Federation itself or by an agent authorised in writing. 65 Two things should be said about the Builders Labourers' Federation case. First, the court there was exercising its jurisdiction, as a superior court of record, to punish for contempt, and to do so effectively. It was not concerned with the extent of the power given by a specific statutory provision, as we are here. And secondly, the order made in the present case was not analogous to that which was upheld by the Full Court in that case. The order in the Builders Labourers' Federation case did not prohibit indemnification of the Federation against its liability to pay the fine: indeed, the order specifically contemplated that payment might be made by an authorised agent, something which the order made in the present case would not allow. 66 For the reasons I have attempted to lay out, I take the view that the primary Judge was in error to have held that s 545(1) of the FW Act contained a power for the court to make an indemnity prohibition order in the terms that her Honour did. I would uphold the first ground of appeal.

THE SECOND GROUND OF APPEAL 67 The second ground of appeal was advanced in the alternative to the first, and challenged the primary Judge's discretionary decision to make an order in the terms of Order 13 (ie on the assumption that the power to make such an order existed). Because of the way I would decide the first ground, I would see no need to deal with the second.

THE THIRD GROUND OF APPEAL 68 The third ground of appeal was expressed as follows: The trial judge erred in so far as her Honour concluded that the source of funds used by the appellants to pay penalties imposed upon them is a matter relevant to the exercise of the discretion to impose a penalty pursuant to s 545(1) of the FW Act and/or relevant to the achievement of the objects of specific and general deterrence. 69 In the appellants' written outline, the argument advanced in support of this ground was confined to the following paragraph: The source of funds or identity of any third party who might provide funds to pay a penalty are not factors to which regard has been paid in sentencing jurisprudence. The sentencing criterion "financial position of the contravener," invites a consideration of capacity to pay and oppression, not judicial scrutiny of source of funds used to pay a penalty. The footnote to this paragraph referred to cases which contained discussions of the significance of the size, and financial strength, of a contravener to the penalty imposed on him or her. 70 The first sentence in this paragraph may be accepted, but, other than to recognise that orders in the terms of Order 13 in the present case have not been made "in sentencing jurisprudence", it is difficult to make anything of this ground. We are concerned with the presence or absence of a power under the specific terms of s 545(1) of the FW Act, and what range of orders might be available under different statutory regimes is not to the point. As a basis for identifying an error made by the primary Judge, whether in deciding that that power existed or in the exercise of her discretion, I would regard this ground, and the extract from the appellants' outline set out above, as quite inadequate. The oral submissions presented on behalf of the appellants barely touched upon the matter. 71 For the above reasons, I would reject the third ground of appeal.

THE FOURTH GROUND OF APPEAL 72 The appellants' fourth ground of appeal relates to a section in the reasons of the primary Judge headed, "The conduct was deliberate and knowingly unlawful". To address the submissions made in relation to that ground, I would commence by setting out the whole of what her Honour said on the subject: 107 I have already made findings to this effect. The respondents are longstanding, experienced, and regular participants in industrial activity. They are legally represented and have clear capacity to take advice about the lawfulness of their proposed conduct before they engage in it. For the year ending 31 December 2014, the accounts of the Victoria/Tasmania Branch of the Construction and General Division of the CFMEU alone showed an expenditure on legal fees of over $2.2 million. 108 As I have noted elsewhere in these reasons, the evidence shows that they repeatedly engage in the same kind of conduct, which is repeatedly found to be unlawful, often on the eventual basis of agreed facts and admissions. These matters are in my opinion relevant to an understanding of how deliberate, and how knowingly unlawful, these particular contraventions can be said to be. 109 It is apparent from the evidence that neither the CFMEU as an organisation, nor the controlling minds within its executive, appear to care at all whether conduct they plan against employers for industrial purposes is unlawful. Nor, it appears from the evidence, does Mr Myles care about the lawfulness of what he does either, so long as it serves the industrial purpose he seeks to advance. No explanations for what occurred were offered in evidence, or by way of agreed facts. There were no expressions of remorse or any apologies forthcoming from the CFMEU executive, or from Mr Myles. No exculpatory factors were proffered in the evidence, or by way of agreement. Indeed, no larger context was given to the industrial dispute at all by the respondents. It was not suggested in evidence, for example, that there were particular health and safety concerns at the Josephs Road site which had prompted the CFMEU to insist on its own delegate being present on site. Rather, the evidence suggests the respondents' activity arose from nothing other than a continued drive for greater industrial power. The prospect of conduct (whether actions or threats or both) being unlawful appears to have no impeding effect at all on the respondents' behaviour. 110 There is a further point which should be made about the deliberate nature of the respondents' conduct, in the context of the CFMEU as an industrial organisation. 111 The CFMEU is an organization with a large asset and income base. It occupies a position with particular legal privileges and responsibilities as a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth). It is exempt from income tax, and in that sense whatever funds it determines to use to pay pecuniary penalties are not "after tax" funds. The applicant submitted, and I accept, that the Victoria/Tasmania Branch of the Construction and General Division of the CFMEU alone recorded a net surplus of $2,982,143 for the financial year ending 31 December 2014; and as at 31 December 2014, had net assets of $58,862,813 (including $14,353,117 of cash and cash equivalents such as cash at bank and short term deposits). 112 The accounts of the Victoria/Tasmania Branch of the Construction and General Division of the CFMEU alone for the year ending 31 December 2014 show receipts of in excess of $19 million from its members. It also appears to have received in excess of $8 million in "operating grant receipts", which I infer are receipts from public funds. The 2014 accounts do not reveal any entries in respect of the payment of penalties by the Victoria/Tasmania Branch of the Construction and General Division of the CFMEU, but I consider it a reasonable inference to draw that where the CFMEU is ordered to pay penalties, it will do so from funds which have been in part received from its members, or alternatively from public funds. 113 The relevance of this evidence for present purposes is that, in my opinion, it is clear that when the CFMEU (and its officer, Mr Myles) decided to engage in this conduct, knowing it was unlawful, and intending the conduct to have the prohibited coercive effect set out in s 348, they did so also knowing that any pecuniary penalties a court may impose could be satisfied from funds received both from the public purse and from CFMEU members, despite such use producing no benefit at all for CFMEU members. It compounds the respondents' disregard for the law that the large asset and income base of the union could be seen as providing a suitable cushion from the tangible effects of any unlawful behaviour. 73 The appellants' fourth ground was as follows: The trial judge erred in so far as her Honour made the following findings of fact based on inferences drawn in the absence of evidence, and without providing the appellants notice of or an opportunity to be heard in relation to those findings: (a) a finding that the line entry in the accounts of the Victorian/Tasmania Branch of the Construction and General Division of the first appellant which reads "operating grant receipts" is a reference to public funds; and (b) a finding that the first appellant pays penalties imposed the first appellant and upon its officials and employees from funds derived from "the public purse". The accounts of the relevant branch of the CFMEU were in evidence uncontroversially, but, according to the appellants, the only use made of them by the Director was as a support for the submission made on his behalf that the CFMEU had the capacity to pay any penalty that the primary Judge might otherwise be disposed to impose on it. That appears to have been the situation. 74 In the appeal, the appellants tendered, by leave, the affidavit of Anne Duggan affirmed on 13 October 2016 for the purpose only of (and here I quote from an interlocutory order made in the appeal on 25 October 2016) "providing support for the appellants' contention that at the time of the hearing below there was evidence available to the appellants that could have been called had notice been given of the court's intention to draw inferences in relation to source of funds, that was relevant to the question of whether the first appellant paid penalties from public funds." Having read Ms Duggan's affidavit for that limited purpose, I am satisfied that there was evidence available to the appellants contrary to the two findings referred to in the fourth ground of appeal. 75 Was it a denial of procedural fairness for the primary Judge to have made those findings without the appellants first having been warned, either by her Honour or by a submission made on behalf of the Director, that she might do so? With respect to the first finding mentioned in the fourth ground, counsel for the Director submitted that the inference there drawn was "open on the evidence". That may have been so, but it is not the appellants' point. Counsel next submitted that the inference was the result of "a reasoning process of which the primary [J]udge was not obliged to forewarn the appellants." In support of this submission, counsel referred to Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 and Telstra Corporation Ltd v Kendall (1995) 55 FCR 221. I shall return to those authorities presently. 76 With respect to the second finding of which the appellants complain in their fourth ground, the Director's submission placed stress upon the critical passage in para 112 of her Honour's reasons as follows: "… but I consider it a reasonable inference to draw that where the CFMEU is ordered to pay penalties, it will do so from funds which have been in part received from its members, or alternatively from public funds." Presumably inviting attention to be given to the emphasised words, counsel submitted that the finding was "reasonably open" to her Honour. Again this submission may be acknowledged, but it does not answer the appellants' point. No complaint is made that her Honour made a finding that was not open on the evidence - the submission is that for her Honour to have proceeded to make that finding was a denial of procedural fairness. 77 As to para 113 of the primary Judge's reasons, and relying particularly on the last sentence in that paragraph, it was submitted on behalf of the Director that the essence of her Honour's reasoning was that the asset and income base of the branch was such as would reasonably have been understood, before the event, to amount to "a suitable cushion from the tangible effects of any unlawful behaviour". This being the "terminal point" of her Honour's reasoning, the findings of which the appellants now complain "were not salient features of the evidentiary findings, or otherwise material errors (if they be such) impugning the overall discretionary decision" of her Honour. 78 I would not accept that submission. Her Honour was, of course, concerned not with the source of funds in fact used by the CFMEU to satisfy its obligation to pay penalties, but with what she seemed to regard as the plain reality that, when faced with a choice whether or not to obey the law, the CFMEU and its organisers would regard the prospect of penalties as inconsequential against the substantial asset and income base which the financial report disclosed. Even in that context, however, her Honour said that they would do so "knowing that any pecuniary penalties a court may impose could be satisfied from funds received both from the public purse and from CFMEU members …." That is to say, their knowledge of the sources from which the payment of penalties could be funded was, in her Honour's mind, no less significant a circumstance than the fact that the size of the available funds provided a "cushion". In my view, her Honour's reference to the public sources of these funds was both salient and material in her assessment of the gravity of the appellants' conduct. 79 I return now to Sinnathamby and Telstra. Each involved a proceeding under the Administrative Decisions (Judicial Review) Act 1977 (Cth). That is to say, the procedural fairness point in each case arose in the context of a decision made by an administrative official. 80 In Sinnathamby, information which the applicant herself had provided was used to reach the conclusion that her arrival in Australia, ostensibly as a transit passenger en route to Fiji, was a "subterfuge". The submission made on her behalf was that the decision-maker's omission to warn her that the information might be used in this way amounted to a denial of procedural fairness. That submission was rejected. Distinguishing Kioa v West (1985) 159 CLR 550, Fox J said (66 ALR at 506): In Kioa's case, the material held to require that a chance be given to comment had come from a source other than the applicant. In the present case, as his Honour found, the material which was prejudicial to the appellant had been provided by the appellant herself. In the circumstances, I consider that the decision-maker was not required to give the appellant a chance to comment on the view that he had taken of it; to do so would amount to a general requirement that a decision-maker make known in each case his view or evaluation of the material that an applicant puts forward: see Kioa per Brennan J at p 380. His thought processes, if not unreasonably based on evidence, or other material, are a matter for him. Neaves J said (66 ALR at 513): In so far as the delegate adopted the statement referred to, a matter as to which the evidence is not entirely clear, there is no suggestion that in doing so he relied upon any material other than the account which the appellant gave as to the circumstances surrounding her entry into Australia. It was a matter for the delegate to evaluate the material placed before him and, as the whole of that material had its source in what the appellant had said, there was no obligation upon him to inform the appellant that that material might result in him forming a conclusion adverse to her. 81 In Telstra, the primary Judge had held it to have been a denial of procedural fairness for the then applicant not to have been told that the references to "escort services" in documents uncontroversially before the decision-maker might be regarded as euphemisms for prostitution. The Full Court did not agree. It said (55 FCR at 230-231): With respect to his Honour, once it is conceded that there was no need to forward a copy of the relevant advertisements because these were known to the applicant, the rules of procedural fairness do not require that the decision-maker communicate specifically the conclusions which the decision-maker may seek to draw from them. If those conclusions were so unreasonable that no reasonable decision-maker could draw them, then the decision would be subject to attack for that reason, rather than for the reason that the applicant was not afforded procedural fairness. In the present case, the applicant did reply by making it clear that the advertisements themselves were not advertisements for the use of the telephone services for prostitution; in the solicitor's letter of 16 September 1992, referred to earlier in these reasons, it was asserted that "there was no evidence to indicate that the relevant telephone numbers have ever been advertised in relation to prostitution''. The decision-maker, in forming his decision, took this into account, together with the other information contained in the copy letter from the Police and the solicitor's response. It follows that the applicants have not made out a case that the decision was vitiated for lack of procedural fairness. 82 Does the reasoning in these Full Court judgments support the Director's submission in the present case? Including notes but not the auditor's report, the branch accounts were a 26-page document. They were part of an exhibit to the affidavit of Brendan James Charles sworn on 26 November 2015 which was read, without objection, by counsel for the Director at the hearing before the primary Judge. Counsel used the exhibit to establish Mr Myles' position in the branch, and then made the following submission to her Honour: Whilst your Honour has the affidavit, the only other aspect of it which we directly rely upon are paginated pages 169 and 170 … [w]hich show as at the year ended 31 December 2014, on 169, the CFMEU had a net surplus from its operations of $2,982,143, and that it has net assets of fifty-eight and some - over 58 million in cash, and cash equivalents of over 14 million, and those matters are dealt with in our submissions. They're the only aspects of those matters that we rely upon, and we don't put it that because they have a lot of money they should be penalised a lot of money, but, obviously, there's no question of any discount or mitigation, having regard to capacity to pay. Page 169 was the Profit and Loss Statement and page 170 was the Statement of Financial Position, setting out the assets and liabilities of the branch. The line entry "operating grant receipts" appeared not on either of these pages but on page 172, which was the Statement of Cash Flows. 83 It is apparent that, on the facts, the present case does not come within the principle for which Sinnathamby and Telstra are authority. This involved more than a failure to disclose a reasoning process. The evidence on which the primary Judge relied was buried (I do not believe that to be too harsh a metaphor) in a lengthy and complex financial report which was tendered specifically for other reasons. Not only did counsel for the Director make no reference to the controversial line entry - as the extract set out above shows, he made it clear that the passages in the report to which he did refer, and those passages alone, were the ones on which he relied. 84 Neither was the financial report of such a nature that the relevance of its contents would reasonably have been self-evident to the appellants. As a document, it was not controversial. The litigation was not about the branch's financial affairs. Rather, the report was tendered as incontestable evidence of those specific matters to which counsel for the Director referred in his submissions to her Honour. In my view, the appellants were entitled to take counsel at his word, and to conduct their defences by reference to the premise that the financial report would be used only for the purposes stated. 85 For the above reasons, I would uphold the fourth ground of appeal.

THE FIFTH GROUND OF APPEAL 86 In a section of the primary Judge's reasons headed "Deterrence: specific", her Honour commenced by dealing with a submission then put on behalf of the appellants that considerations of specific deterrence had "no augmented role to play in these proceedings", that such considerations "cannot hijack the process beyond the bounds of proportionality" and that it was "impermissible to reason that previous penalties had been ineffective". Dealing with those submissions, the primary Judge said: 138 Insofar as they were directed at securing a penalty in the lower range, I do not accept those submissions. If those submissions were accepted on their face, what would be hijacked would be the proper administration of the penalty regime under the Fair Work Act in relation to a proven recidivist organisation. Invocation of the concept of proportionality should not be allowed to relieve a recidivist organisation, or recidivist individuals, from responsibility for serious contraventions of industrial laws, especially contraventions involving (as these contraventions do) abuses of industrial power. Previously in her reasons, the primary Judge had referred above to the number of previous contraventions of industrial laws by the CFMEU and the branch. 87 In the section presently under consideration, her Honour said that it was the frequency of the contraventions, as well as the sheer number of them, that was notable. She continued: 139 …. The conduct involved in those contraventions ranges from very similar conduct to these contraventions (that is, conduct and threats designed to force an employer to accept a CFMEU delegate on site); to blockades to achieve other industrial outcomes; to abuse (including racial abuse: Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672) when unlawfully on work sites; to seeking to coerce employers to employ CFMEU members and fire non-CFMEU members; to using blockades, obstructing access to sites and making threats during enterprise bargaining negotiations; to engaging in bullying behaviour while on work sites and refusing to leave sites; to encouraging workers not to attend work sites; to threatening industrial action unless a CFMEU member was reinstated. Her Honour observed that the list to which she referred was taken from only the first 20 or so entries in the table which had been attached to the Director's submission "and could be multiplied and expanded several times over". 88 The primary Judge continued: 140 The conduct has in common features of abuse of industrial power and the use of whatever means the individuals involved considered likely to achieve outcomes favourable to the interests of the CFMEU. The conduct occurs so regularly, in situations with the same kinds of features, that the only available inference is that there is a conscious and deliberate strategy employed by the CFMEU and its officers to engage in disruptive, threatening and abusive behaviour towards employers without regard to the lawfulness of that action, and impervious to the prospect of prosecution and penalties. An alternative inference - that the CFMEU weighs up the cost of engaging in such action (that is, likely prosecution and imposition of penalties) and nevertheless concludes it is a collateral cost of doing its industrial business - reflects no better on the organisation or its officials. 89 Having noted that "the evidence suggests this ongoing behaviour is tolerated, facilitated and encouraged by all levels of the organisation", her Honour continued: 142 I also consider it relevant to note from the applicant's table that a large proportion of the contraventions and penalties stem from agreed facts and agreed ranges of penalty. In other words, the CFMEU (and the Victoria/Tasmania Branch of its Construction and General Division) have a history of eventually admitting to contraventions. In some contexts, this might be seen as a mitigating factor. I do not see it in that way, in all of the circumstances. Rather it seems to me to be part of a deliberate and calculated strategy by the CFMEU to engage in whatever action, and make whatever threats, it wishes, without regard to the law, and then, once a prosecution is brought, to seek to negotiate its way into a position in which the penalties for its actions can be tolerated as the price of doing its industrial business. 90 In a later section of the primary Judge's reasons, headed "Penalty amounts", her Honour said: 155 While recognising there are more serious examples of coercion contrary to s 348 that can be imagined, the very conscious and deliberate nature of these contraventions, borne out of the respondents' attitude that the end justifies the means, makes the contraventions very serious because of the respondents' deliberate disregard for the law. There was a planned strategy, executed knowing it would be unlawful, and not caring about that fact. Industrial power was used to attempt to secure a desired outcome. A further repeated strategy was used of eventually capitulating when the time was right and submitting to penalty. That conduct in itself has an aspect of the respondents thumbing their noses at the system, including at the courts. 91 The appellants contend that they had had no notice that a finding might be made that the CFMEU and its officials engaged, as a matter practice over an extended period, in a "strategy" of breaking the law, of nominally participating in the inevitable penal proceedings which followed and finally of participating in the preparation of agreed statements of facts in order to keep the cost of unsuccessful litigation within the confines of what was regarded as the cost of doing business in Australia. In making such a finding, her Honour denied them procedural fairness, so it was contended. 92 The fifth ground of appeal was as follows: The trial judge erred in so far as her Honour made the following findings of fact in the absence of evidence and without providing the appellants notice of or an opportunity to be heard in relation to those findings: (a) that the first appellant engages in a deliberate "strategy" of defending knowingly unlawful action and "eventually capitulating when the time [is] right", which has an "aspect of the respondents thumbing their noses at the system, including at the courts"; and (b) that the first appellant's conduct of the proceedings before her Honour was an example of what her Honour had erroneously found to be a "strategy". 93 To the extent that the appellants complain that her Honour's findings were made "in the absence of evidence", I would reject this ground. Although not strictly a matter of evidence, attached to the Director's written outline filed, and relied on, on the penalty hearing was a table of the prior contraventions of the CFMEU, as established by court judgments. Each of those judgments was a matter of public record. It could not realistically be suggested that her Honour would not be at liberty to refer to any or all of these judgments, for such relevance as they had in the fixing of penalties in the present case. Whatever else might be said of her Honour's findings, it could never be said that they were made in the absence of evidence. 94 Whether there was an absence of evidence that the CFMEU's deplorable record of contraventions bespoke a deliberate strategy of the kind referred to is, of course, another matter. It is here that her Honour was in the realm of inference, and I do not understand it now to be contended that, issues of procedural fairness to one side for the moment, the inferences which she drew were not available on the evidence which she had before her. No attempt was made, on behalf of the appellants, to demonstrate the falsity of the pattern of conduct which her Honour perceived in the judgments to which she had been referred. So far as appears, that pattern involved the CFMEU initially defending the indefensible, and then, late in the day, admitting to incriminating facts and conclusions in place of participating in contested proceedings. This perverse approach to penal litigation had become so ubiquitous, in these judgments, that it could scarcely have been accidental. Presumably, it was not the result of the incompetence of the CFMEU's legal advisers. To describe it as a "strategy" may not have been to employ the metaphor that everyone would have chosen, but the underlying inference, of which complaint is now made, was readily available to the primary Judge. 95 That leaves the question of procedural fairness. Here, unlike the matter dealt with under the fourth ground of appeal, I consider that the controversial findings were in truth matters of her Honour's reasoning process. Indeed, the present case is, in my view, covered by the ruling in Sinnathamby. There the facts were on the table, but the applicant had not been warned that her entry into Australia as a transit passenger might be regarded as a subterfuge. Here, the facts were again on the table before the primary Judge, but no suggestion had previously been made that those facts might be viewed as bespeaking a strategy of the kind to which her Honour referred. That case was not, and the present case is not, an instance of the denial of procedural fairness. In the present case, I would add that, having, by its own conduct, built up such a substantial and conspicuous record of prior instances, the CFMEU is in no position to complain that it was not warned that those instances might be recognised for what they were. 96 Another aspect of the matter that puts this ground in a different category from that of the fourth ground is that the appellants led no evidence in the appeal such as would sustain the conclusion that, if warned about the findings that the primary Judge might make, they would have been in a position to lead evidence to the contrary. The prospect that the appellants would have permitted the matter of the strategy which the CFMEU followed in cases such as the present to be the subject of contest at trial might be viewed as a doubtful one, but, in any event, it is at least a discretionary consideration for us that it is not established that any real difference would have been made had counsel for the Director, or the primary Judge herself, explicitly drawn attention to the inference which the CFMEU's record of prior contraventions made available. 97 For the above reasons, I would reject the fifth ground of appeal.

THE SIXTH GROUND OF APPEAL 98 In order to understand this ground of appeal, the provision of some background is necessary. In her reasons of 13 May 2016, the primary Judge said: 2. This proceeding was commenced on 21 May 2014. As described in the introductory part of my reasons for interlocutory judgment refusing a stay of the proceeding …, this proceeding concerns industrial action the applicant alleged was taken by the respondents at the building site for the Victorian Government's Regional Rail Link construction site. The applicant alleged that, on 16 and 17 May 2013, the respondents blockaded the building site, preventing trucks operated by Boral Resources (Vic) Pty Ltd (trading as Boral Concrete) from delivering wet concrete it had been engaged to provide to the project. As I set out below, the respondents ultimately made admissions to contraventions of the Fair Work Act. 99 On 5 September 2014 the appellants sought, and on 6 February 2015 the primary Judge refused, a stay of the proceeding before her pursuant to s 553 of the FW Act. That was the interlocutory occasion referred to in the passage from her Honour's reasons set out above. The stay application had been based on then pending contempt proceedings (not in the name of the Director) in the Supreme Court of Victoria. Her Honour's judgment of 6 February 2015 was the subject of an application for leave to appeal and, to facilitate the hearing and determination of that application, her Honour listed the trial of the proceeding before her for 23 November 2015, on an estimate of two weeks. The application for leave was heard in May 2015 (at which time also argument on the substantive appeal was received by the Full Court). 100 While the Full Court was reserved, on 18 September 2015 the Supreme Court made orders by consent allowing for the discontinuance of the contempt proceeding. On 29 September 2015, the primary Judge made orders by consent re-fixing the hearing of the matter before her for 30 November 2015, on an estimate of five days. On 8 October 2015, the Full Court made orders by consent dismissing the application for leave to appeal. On 20 November 2015, the parties advised the court that they had reached settlement as to liability and proposed orders by consent preparing the matter for a hearing as to penalties only. The appellants admitted that Mr Myles had organised and participated in a blockade on 16 May 2013, and had made threats on 16 and 17 May 2013, "with the intention of coercing two of the project joint venturers … to comply with a request to have a CFMEU delegate on the site." The appellants admitted that, by reason of that conduct, Mr Myles and through him, the CFMEU, contravened s 348 of the FW Act. 101 Against that background, the sixth ground relates the following part of the primary Judge's reasons: 114 I give some, but minimal, weight to the fact that, ultimately, the respondents made admissions and a contested trial on the facts was avoided. That is because the respondents' change in position occurred very close to trial and, I find, for reasons related to the settlement of other litigation. It was not a change of position borne of any real contrition. 115 The amended defences filed on behalf of the respondents in mid-November 2015 contained no admissions, and consisted almost entirely of pleadings that the respondent did not know or could not admit certain allegations, or denied the applicant's allegations. As I have noted earlier in these reasons, the parties advised the Court of a settlement of the applicant's claims only 10 days before the trial was due to commence. This followed upon the settlement of related proceedings in the Supreme Court of Victoria. … 116 I consider the respondents' conduct demonstrates the barest of co-operation, mostly due to the realisation that once the issues they had sought to raise about the stay of these proceedings had been unsuccessful, or served no further purpose, they were likely to be found to have engaged in the contraventions alleged. Their change in position was due, I find, to self-interest, rather than to any considerations which should operate significantly in mitigation of penalty. 117 Some allowance should be made for encouraging parties in the position of the respondents to make admissions and co-operate in agreeing facts with the resulting savings in the resources of the parties and the publicly funded resources of the Court, and I have made such an allowance in reaching the figures I consider are appropriate penalties. 102 The ground is as follows: The trial judge erred in determining to give only "minimal" weight to co-operation by the appellants on the basis that that co-operation was "not ... borne of any real contrition" in circumstances where: (a) the appellants and the Director of the Fair Work Building Industry Inspectorate were parties to a joint Statement of Agreed Facts which contained admissions, and had the result that the need for a contested trial was avoided; and (b) the filing of that Statement of Agreed Facts and the making of admissions were relied upon by the appellants before her Honour only as evidence of co-operation, and not as evidence of contrition; and (c) the timing of the filing of that Statement of Agreed Facts was affected by factors including that the appellants had on a proper basis (and at a time when concurrent proceedings for criminal contempt were on foot in the Supreme Court) made an application for a stay of the proceedings before her Honour pursuant to s 553 of the FW Act; and (d) the discount or mitigation traditionally afforded to contraveners who display co-operation by admitting to contraventions has its origins in recognition of the fact that the avoidance of contested trials saves court resources and reduces the impact upon those affected by contraventions, and therefore does not require proof of remorse or contrition on the part of the contravener. 103 A substantial part of the appellants' submission in support of this ground was concerned to demonstrate that the primary Judge had confused co-operation with contrition. They were, it was submitted, two different bases for a plea in mitigation, either one of which could, in the right circumstances, be sufficient in its own right. It was pointed out that contrition was never the appellants' plea: they relied only on the fact that, by settling the proceeding before her Honour, they co-operated with the Director, with all of the practical and financial benefits with which such a course is conventionally associated. 104 The reasons of the primary Judge do not reveal an error of the kind alleged by the appellants. Her Honour recognised that the appellants had co-operated with the Director, but noted that it was co-operation of a kind which did not involve contrition. That was exactly what the appellants themselves had submitted to her Honour. She recognised that "some allowance" was proper to be made for such limited co-operation as there had been, but, by reference to the history of the matter and what her Honour perceived were the motivations behind the offering of that co-operation, that allowance would be a modest one. It seems fairly clear that her Honour would have taken a different approach had the appellants shown any "real contrition", but that was not the situation. Otherwise, the appellants' submissions amount to little more than an attempt to re-ventilate discretionary considerations that were, or might have been, elements in her Honour's discretionary judgment, and are not open on an appeal of the present kind: House v R (1936) 55 CLR 499. 105 For the above reasons, I would reject the sixth ground of appeal.

THE SEVENTH GROUND OF APPEAL 106 This ground of appeal relates to the severity of the penalty imposed on Mr Myles for his contravention of s 348 of the FW Act on 17 May 2013. The nature of the ground requires me to rehearse all the facts of the case which relate to Mr Myles, one of six Divisional Vice Presidents of the Construction and General Division of the CFMEU. What follows below is based substantially on the reasons of the primary Judge. 107 The case before her Honour concerned conduct at one of the sites for the Regional Rail Link project. The City to Maribyrnong River Project Package B part of the project included an area between the north end of Southern Cross Station and the up side of Hopkins Street, Footscray, as well as a section of the Werribee rail line from the down side of Maribyrnong River to the down side of Hopkins Street, Footscray. That part of the project was to be carried out as a joint venture between John Holland Pty Ltd, Abigroup Contractors Pty Ltd and Coleman Rail Pty Ltd. The workforce of John Holland and Abigroup involved in the project was covered by a single enterprise agreement made under the FW Act, which covered the Australian Workers' Union ("the AWU"), but not the CFMEU. 108 The CFMEU wanted a CFMEU delegate on the site. Mr Myles had visited the site frequently since the start of the project, and had spoken with Dennis Summerfield, an employee of John Holland. Mr Summerfield was responsible for coordinating and planning the civil works for the Package B Project, including the earth works, structures and services. On repeated occasions Mr Myles had had exchanges with Mr Summerfield about getting a CFMEU delegate on the site. He had said to Mr Summerfield that John Holland should "put a CFMEU delegate on the Site", and had told Mr Summerfield, "I need a CFMEU delegate on the Site" and "when am I going to get a delegate?", or words to that effect. Mr Summerfield's response had been that since the AWU was the party to the enterprise agreement and had a delegate on site, there was no need for a CFMEU delegate. 109 On 16 May 2013, John Holland and Abigroup had scheduled the construction of a concrete "deflection wall" along a section of railway track. Boral Resources (Vic) Pty Ltd had been engaged to supply the concrete to build the wall. 130 cubic metres of wet concrete was required for this operation. On that day, the concrete was to be delivered by concrete trucks arriving at about 10 minute intervals over a three to four hour period, with between five and seven cubic metres of concrete to be delivered per load. A number of subcontractors had been engaged to build the wall on that date - some to do the formwork for the wall, some to pump the concrete. The concrete pour would involve 13 employees of the subcontractors, who were scheduled to arrive, and did arrive, between 7 am and 9 am that morning. 110 The first Boral concrete truck arrived at 11.20 am, and the concrete pour began. By about 11.50 am, four Boral concrete trucks had delivered some 24.4 cubic metres of the 130 cubic metres of concrete to be poured that day. Mr Myles and approximately 20 other people arrived at the entrance to the site at about 12 noon. They arrived in about nine separate vehicles, some of which had "CFMEU" stickers on their rear windows. Neither the people nor the vehicles had any association with the construction work occurring on the site. Many of the people who came with Mr Myles were wearing jumpers with "CFMEU" written on the front and back, or fluorescent vests with the names of various contractors on them. The nine or so vehicles were parked next to each other across the width of the road outside the entrance gate. This blocked vehicle access to the site entrance. Mr Myles and the other people got out of the vehicles and stood around them. The appellants accepted that it was appropriate to describe the situation as a blockade. 111 When Mr Summerfield approached Mr Myles and asked him what he was doing, Mr Myles responded with words to the effect of "we've lost our keys and are waiting for the RACV". Drivers of vehicles trying to enter and to leave the site were told to park on the side of the road until Mr Summerfield could sort things out. Photographs of the scene tendered before the primary Judge showed a confined area crowded with parked cars and various individuals. Her Honour held that there was no way that any vehicle could get through to enter or to leave the site. 112 At about 12.20 pm, Robert Currie, Abigroup Human Resources/Industrial Relations Manager, who by then had arrived at the site, called the Footscray Police and spoke to Sgt Mark Anderson, explaining what was happening at the site. Shortly thereafter Sgt Anderson and several police constables arrived at the site. Sgt Anderson spoke to Mr Myles, who told him that he and the other individuals with him would "be there for about an hour". By about 12.30 pm, four more Boral concrete trucks had arrived at the site to continue the concrete pour. They were forced to wait outside the site, parked on the public road. 113 Mr Summerfield conversed with Mr Myles in the following terms: Myles: I haven't got a delegate on site to protect my members so I'm blocking the road. Summerfield: The Alliance has an AWU delegate, we don't need a CFMEU delegate. We are under an AWU Agreement. Myles: I will only remove the blockade if you stop the pour and pack the concrete pumps up. 114 More police officers arrived at the site, including S/Sgt Damian Jones. Mr Myles told him that he and his companions would not leave the site until they had disrupted the concrete pour for the day; and that the cars would remain blocking the entrance until the concrete trucks and the concrete pumper had left the area for the day. 115 After about an hour, the concrete in the four trucks began to spoil, and became unusable. The four trucks left the vicinity and took their loads to be dumped. The 24.4 cubic metres of concrete which had already been poured to start the wall was also wasted, and later had to be destroyed. Mr Summerfield cancelled the remaining concrete deliveries scheduled for 16 May 2013 and instructed the pumping crews to pack up and leave the site because there was no work for them to do. Further work on the wall, scheduled for 16 May 2013, also had to be abandoned, and was recommenced on another occasion. 116 After the concrete trucks and the subcontractors had left, Mr Myles said to Mr Summerfield, "I'll be back tomorrow to stop the concrete pour … You won't pour again until you put a delegate on and Ralph Edwards [the branch President] is happy." Shortly after this comment, the individuals who were blocking the site entrance shook hands with each other and posed for a photograph with a red "CFMEU" flag. They then left the site in their cars, by which time it was after 2.30 pm. 117 Mr Myles returned to the site on 17 May 2013 and, at about 9.55 am, had the following conversation with Mr Summerfield at the pedestrian entrance to the site: Myles: Has the project reconsidered having a delegate on site, because if there was a delegate on site, there would be no more issues, guaranteed? Summerfield: No, we haven't considered a delegate and won't be having one. Myles: Do you want a war or a delegate? Summerfield: Nobody wants a war. Myles: Well if you don't want to put a delegate on then we will have one. I'll be back tomorrow to stop the concrete pour. There was no evidence before the primary Judge as to whether Mr Myles did return on 18 May 2013; nor, for that matter, about any circumstances subsequent to 17 May 2013. 118 The primary Judge's findings included the following: 58 Mr Myles organised and participated in the blockade of the Josephs Road entrance to the Package B Project construction site on 16 May 2013, between approximately 12 noon and shortly after 2.30 pm. He led a group of more than 20 other individuals associated with the CFMEU. Their actions caused a significant and costly amount of wastage of a very large amount of concrete which had been ordered and partly delivered to the site. It also caused the joint venturers to incur additional, unforeseen and unnecessary costs of disposing of the spoiled concrete and dismantling that part of the wall that had been poured and was wasted because of the blockade. Their conduct also caused a short delay in completion of the construction of the wall. 59 As well as organising, leading and engaging in the blockade itself, Mr Myles made two distinct threats to the joint venturers, by his statements to Mr Summerfield. The first threat … was made after the concrete pour had been successfully disrupted. That threat was to repeat the blockade on 17 May 2013, and to cause a similar level of disruption and waste to the construction work at the … site. I infer that Mr Myles was aware that a second day of disruption and potential wastage of that large an amount of concrete would cause additional damage to the joint venturers and to the progress of the project. 60 The second threat was … made by Mr Myles to Mr Summerfield the following day, 17 May 2013. I find Mr Myles returned to the site with the express intention of finding out whether the threat made on the previous day, after the successful disruption of the concrete pour, had had the desired effect of causing John Holland and the other joint venturers to allow a CFMEU delegate onto the site. 61 I find that the blockade itself was undertaken with the clear intention of coercing John Holland, and the other joint venturers, to change their position and comply with the CFMEU request for a CFMEU delegate to be present on the … site. 62 I further find that each of the threats was made with the clear intention of coercing John Holland, and the other joint venturers, to change their position and comply with the CFMEU request for a CFMEU delegate to be present on the … site. 119 The primary Judge inferred that the appellants' contraventions occasioned significant extra cost to the joint venturers, material delay, and significant disruption to work on the project site. Her Honour found that the appellants intended to cause each of those outcomes. They were not collateral effects of the appellants' conduct, but were "part and parcel of the coercive pressure [the appellants] intended their conduct to produce." Her Honour inferred that the appellants "well knew the conduct was unlawful, and did not care." Her Honour said that "the use by Mr Myles of Mr Edwards' name, and his obvious intention to convey the message to Mr Summerfield that Mr Edwards endorsed what was happening, was calculated to give the impression of the level of authority Mr Myles had to make the threats and the level of the CFMEU's determination to procure the result it wanted." None of these inferences, findings and observations was criticised by the appellants in the present appeal. 120 After considering a number of matters that were, on any view, relevant to the process of determining appropriate penalties, including Mr Myles' past record of contraventions, the primary Judge said: 155 While recognising there are more serious examples of coercion contrary to s 348 that can be imagined, the very conscious and deliberate nature of these contraventions, borne out of the respondents' attitude that the end justifies the means, makes the contraventions very serious because of the respondents' deliberate disregard for the law. There was a planned strategy, executed knowing it would be unlawful, and not caring about that fact. Industrial power was used to attempt to secure a desired outcome. A further repeated strategy was used of eventually capitulating when the time was right and submitting to penalty. That conduct in itself has an aspect of the respondents thumbing their noses at the system, including at the courts. 156 If there had been violence or property damage, then proven or admitted conduct of that kind would likely be punished in additional and separate ways. Punishment of that conduct is not the central purpose of s 348. The central purpose of s 348 is directed to precisely what the respondents did on this occasion: they abused their industrial power to try to force their desired industrial outcome on the joint venturers. They did so, as I have found earlier, with a sense of impunity and disregard of the unlawfulness of their actions. On any view, that conduct is most serious. 157 I consider it appropriate to impose penalties of $45,000 and $8,000 respectively on the CFMEU and Mr Myles for the events of 16 May 2013, during which the most disruption was caused, and penalties of $15,000 and $10,000 respectively in relation to the threat the next day. While I am confident those to whom Mr Myles reported within the CFMEU were content with what he did on 17 May 2013, there was, on the evidence, less organisational presence that day, and no blockade. The vice in Mr Myles' actions that day was in the threat he personally decided to issue to Mr Summerfield. He should bear, proportionately, a greater penalty for that conduct. 121 The seventh ground of appeal is as follows: The imposition by the trial judge of a penalty of $10,000 on the second appellant with respect to the contravention which took place on 17 May 2013 was manifestly excessive because: (a) the imposition of a penalty on the second appellant of $10,000 constitutes the imposition of a penalty of 98% of the maximum penalty available to be imposed for that contravention; and (b) the events of 17 May 2013 were less serious than the events of 16 May 2013, as they were of brief duration and had no impact upon work or production; and (c) when regard is had to the operation of the totality principle, the combined effect of the two penalties imposed on the second appellant is manifestly excessive. For an individual, the maximum penalty for a contravention of s 348 was $10,200. 122 In their submissions on appeal, the appellants stated that "the statutory maximum is required to be reserved for the worst category of cases." I would not accept the invitation implicit in this submission to compare Mr Myles' wrongdoing on 17 May 2013 with some notional situation in which a "worst category" contravention comes before the court. The severity of the penalty should not, in my view, be the occasion to impose upon those seeking to defend it the challenge to formulate a set of facts that would have amounted to a contravention of greater seriousness. Particularly is this so in the case of generically-expressed contraventions such as that contained in s 348 of the FW Act. There is an almost infinite variety, and combination, of circumstances which have the potential to contribute to an assessment of the seriousness of such a contravention. Whether the punishment fits the contravention in any particular case must inevitably be a very fact-specific inquiry. 123 The penalty imposed on Mr Myles in the present case was undoubtedly a very heavy one, when regard is had to the statutory maximum. But the primary Judge laid out, in great detail, her reasons for proceeding in the way that she did. I have set out the deliberative section of her reasons above both because I would not want anything to be lost in the retelling and because the appellants themselves made nothing more than the most cursory submission on the subject, proceeding as though it were self-evident that 98% of the maximum would have to be excessive in the circumstances of the case. They said, "This contravention consisted of a brief conversation at the entrance to the site, occupied a matter of minutes, and was constituted by a threat to return and stop a concrete pour." In my view, this was a conspicuously inadequate summary of the matter, and one which did no justice to the primary Judge's detailed reasoning, set out above. 124 Neither do I regard it as self-evident that the conduct of 17 May 2013 was less serious than that of the previous day. Section 348 deals both with "action" and with threats to take action. There is nothing to suggest that the legislature intended that a threat of action should necessarily be regarded as less serious than engaging in the action as such. In the present case, Mr Myles' capacity to stop a concrete pour - traditionally amongst the most egregious instances of coercion in the construction industry - had been vividly demonstrated on 16 May. The primary Judge having taken the view that, in the circumstances, the threat was no less culpable that the action itself, I would not interfere with that assessment of the matter. 125 On appeal, the appellants voiced no specific criticism of the basis upon which the primary Judge imposed a higher penalty on Mr Myles in relation to 17 May 2016 than the penalty imposed on him for his conduct the previous day, namely: "The vice in Mr Myles' actions that day was in the threat he personally decided to issue to Mr Summerfield. He should bear, proportionately, a greater penalty for that conduct." In absence of any direct challenge to that reasoning, it would, in my view, be wrong for the Full Court to ascribe error to the distinction which her Honour made here. 126 As to the totality principle, the primary Judge followed the approach endorsed by Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36, 53, and no suggestion was made on behalf of the appellants that her Honour was in error to do so. Her Honour said: 160. I have reflected carefully on whether these amounts are appropriate for the total contravening conduct and in my view they are. I have not accepted the thrust of the respondents' submissions designed to minimise the seriousness of what occurred. I have concluded that there is a particular need for considerations of general, and most importantly, specific deterrence principles to be applied. The sense of impunity shown by Mr Myles is particularly concerning. No submission on appeal was directed to this paragraph in her Honour's reasons. It was submitted that to penalise Mr Myles a total of $18,000 "offends the totality principle in all the circumstances". 127 Although this submission, made in the appellants' written outline, was not the subject of elaboration, it seems to be suggested that the "totality principle" is something which can be "offended" even though the decision-maker has correctly identified the principle itself and even though his or her reasoning in the application of the principle is not to be criticised. What the submission comes down to, as it seems to me, is an invitation to the Full Court to substitute its own assessment of the appropriateness of the total penalties imposed on Mr Myles in relation to his two contraventions for the assessment of the primary Judge. Consistently with House v R, that invitation could not be accepted. 128 For the above reasons, I would reject the seventh ground of appeal.

DISPOSITION OF THE APPEAL 129 With respect to the consequences of the fourth ground of appeal being upheld, I agree with what the Chief Justice has written in para 23 of his reasons. 130 I would make the orders proposed by the Chief Justice. I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Conciliation and Arbitration Act 1904(Cth)s 119

Industrial Relations Act 1988(Cth)s 178

Workplace Relations Act 1996(Cth)ss 170CR, 170HI, 170NF, 170VV, 298U, 346ZK, 407, 605, 616, 632, 719, 769, 807

Workplace Relations Amendment (Work Choices) Act 2005(Cth)

Trade Practices Act 1974(Cth)

Trade Practices Legislation Amendment Act 1992(Cth)

Fair Work Act 2009(Cth)ss 348, 545, 546

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (13)

Cases Cited (19)