REASONS FOR JUDGMENT
1 The Construction, Forestry, Mining and Energy Union (the Union) has instituted proceedings against North Goonyella Coal Mine Pty Ltd (the company), in respect of alleged contraventions of the Fair Work Act 2009 (Cth) (Fair Work Act). The company, though initially disposed to contest the alleged contraventions, has come to acknowledge they occurred. To that end, the parties jointly have promoted to the Court that declarations in particular terms should be made. In those proposed declarations, one finds the detail of the acknowledged contraventions, each of which occurred on or about 27 August 2013. As to the contraventions of s 340 and s 346 of the Fair Work Act, they are:
1. North Goonyella Coal Mine Pty Ltd (the company) contravened section 346 of the Fair Work Act 2009 (Cth) by taking adverse action against Luke Adam Ludlow within the meaning of item 1(a) of the table in section 342, namely, the company dismissed the employee, because:
(a) Mr Ludlow was an officer of an industrial association within the meaning of sections 12 and 346(a) of the Act, namely, he was the President of the union's North Goonyella Lodge and a member of that Lodge Committee;
(b) Mr Ludlow was a member of an industrial association within the meaning of section 346(a) of the Act, namely, he was a member of the union;
(c) Mr Ludlow engaged in industrial activity within the meaning of section 346(b) and 347(a) of the Act, namely, he remained an officer of the union; and
(d) Mr Ludlow engaged in industrial activity within the meaning of section 346(b) and 347(a) of the Act, namely, he remained a member of the union; and
(e) Mr Ludlow engaged in industrial activity within the meaning of section 346(b) and 347(b)(v) of the Act, namely, he represented or advanced the views, claims or interests of an industrial association, namely, that of the union.
2. The company contravened section 346 of the Fair Work Act 2009 (Cth) by taking adverse action against Barry James Elliott within the meaning of item 1(a) of the table in section 342, namely, the respondent dismissed the employee, because:
(a) Mr Elliott was an officer of an industrial association within the meaning of sections 12 and 346(a) of the Act, namely, he was the Secretary of the union's North Goonyella Lodge, a member of that Lodge Committee and a Queensland District Board member of the union;
(b) Mr Elliott was a member of an industrial association within the meaning of section 346(a) of the Act, namely, he was a member of the union;
(c) Mr Elliott engaged in industrial activity within the meaning of section 346(b) and 347(a) of the Act, namely, he remained an officer of the union;
(d) Mr Elliott engaged in industrial activity within the meaning of section 346(b) and 347(a) of the Act, namely, he remained a member of the union; and
(e) Mr Elliott engaged in industrial activity within the meaning of section 346(b) and 347(b)(v) of the Act, namely, he represented or advanced the views, claims or interests of an industrial association, namely, that of the union.
3. The company contravened section 340(1) of the Fair Work Act 2009 (Cth) by taking adverse action against Brendon John Woods within the meaning of item 1(a) of the table in section 342, namely, the company dismissed the employee, because:
(a) Mr Woods had a workplace right within the meaning of section 341(1)(a)(i) of the Act in that he had a role or responsibility under a workplace law arising from Mr Woods being elected as a "site safety and health representative" at the workplace under the Coal Mining Safety and Health Act 1999 (Qld), defined under section 28 of that Act to mean "A site safety and health representative for a coal mine is a coal mine worker elected under section 93 by coal mine workers at the coal mine to exercise the powers and perform the functions of a site safety and health representative mentioned in part 7 division 2.";
(b) Mr Woods exercised a workplace right within the meaning of section 341(1)(a)(ii) of the Act in that he exercised his role or responsibility under a workplace law arising from being elected as the site safety and health representative; and
(c) Mr Woods exercised a workplace right within the meaning of section 341(1)(c)(ii) of the Act in that he was able to and did make complaints or inquiries as an employee in relation to his employment.
2 There are like declarations promoted in respect of each of the acknowledged contraventions of s 50 of the Fair Work Act. Each of these is constituted by a breach of clause 38.5(c) of the North Goonyella Underground Mine Collective Enterprise Agreement 2012 (the Enterprise Agreement). In respect of Mr Ludlow, the company made a materially adverse assessment of him against either or both of performance and/or attitude, which were utilised as redundancy selection criteria. Mr Ludlow was not informed, either verbally or in writing, by a supervisor or manager of these concerns about his performance and/or attitude:
1. underground mine manager Charles Wouter Niehaus considered that he did not work well as part of a team;
2. Mr Niehaus found him to be disrespectful and argumentative in his dealings with a manager and that the same manager has said that Mr Ludlow in the course of a Red Crew meeting was extremely defensive, accused the manager of victimising the Red Crew and opposed the efforts of the manager to ensure the workplace was safe;
3. Mr Niehaus found that Mr Ludlow aggressively challenged the manager in relation to the fact that the mine had not issued a warning to the workforce in response to a tropical low and further, the employee was not aware of management concerns in that regard and did not have a reasonable opportunity to consider and, if necessary, address those concerns.
3 The particular alleged concerns on the part of the company in respect of Messrs Woods and Elliott differ in detail, but the type of contravention alleged and acknowledged of the Enterprise Agreement is no different.
4 Whether or not to grant declaratory relief is a matter of discretion. There is, however, for reasons upon which I shall elaborate shortly, a very strong public interest indeed in the granting of declaratory relief in this case.
5 The parties have also come to an agreement in respect of facts relevant to the acknowledged contraventions. The agreement concerned has been reduced to writing and tendered. It is, for the purposes of s 191 of the Evidence Act 1995 (Cth) (Evidence Act), evidence of facts agreed. The following account of the background to the acknowledged contraventions is drawn from that agreed statement of facts.
6 The Union is a registered organisation for the purposes of the Fair Work (Registered Organisations) Act 2009 (Cth). As such, it is an "industrial association" for the purposes of the Fair Work Act. The Union has members working at the mine in Central Queensland operated by the company. Its members work in areas of mining production, electrical trades, mechanical trades and the coal handling and processing plant.
7 The mine is but one of a number of mines throughout New South Wales, Queensland, Western Australia and Tasmania at which the Union, via its Mining and Energy division, has membership. The Union is the principal union in respect of workers in Australia's black coal mining industry.
8 The Company is a wholly owned subsidiary indirectly of Peabody Energy Australia Proprietary Limited (Peabody Energy). In turn, Peabody Energy is a subsidiary of an American company, Peabody Energy (NYSE:BTU). Peabody Energy (NYSE:BTU) is the world's largest private sector coal company and a Fortune 500 company. It has been active since 1883. It currently has majority interests in 30 mining operations worldwide. Within Australia and via Peabody Energy Australia, Peabody Energy has 11 mining operations in Queensland and New South Wales.
9 The North Goonyella Coal Mine is an underground longwall operation which is located at the northern end of the Bowen Basin, about 160 kilometres west of Mackay. Mining at that mine commenced in 1994. It was acquired by Peabody Energy, or at least by a subsidiary of that Australian parent, in April 2004.
10 The coal produced at the mine is premium quality, medium volatile, high strength coking coal. It has exceptional coking qualities. It is used to make strong and low reactivity coke in a wide variety of coke oven blends. Such is its quality that there is strong demand for it from a diverse range of major steel makers in Japan, Asia, India and Europe. Product from the mine is exported by the Dalrymple Bay Coal Terminal, south of Mackay. At least on present indications, the mine has an expected life of 25 more years.
11 No Australian needs reminding about the importance of the mining industry for our country. It will be obvious from the facts that I have recited in respect of Peabody Energy, that Peabody Energy is a major participant in the coal mining part of Australia's mining industry.
12 Whilst there is a strong demand as admitted for the product, it does not mean that Peabody Energy and its subsidiaries are immune from international market forces. It is those forces which are said to have motivated in July this year, a proposal on the part of the company to reduce the size of its workforce at the mine.
13 The nature, extent and indeed need for redundancies is the subject of separate proceedings as between the Union and the company in the Federal industrial commission presently known as the Fair Work Commission. It is for that reason neither necessary nor desirable to make any finding at all in respect of those subjects. It suffices for present purposes to view the admitted contraventions against the background of a proposal, which was implemented by the company to reduce its workforce at the mine on the basis of a fall-off in product demand.
14 To return to facts which are admitted, on 22 July 2013, the company notified the Union of its proposal to reduce its workforce at the mine. In his role as Lodge President, Mr Ludlow that same day wrote to Mr Greg Pawley, the company's Mine General Manager. In that capacity, Mr Pawley was the senior local officer of the company. In his letter, Mr Ludlow disputed the company's redundancy announcement and Mr Ludlow complained that the company had breached clause 39.2 of the Enterprise Agreement. That particular clause is directed to the subject of change in the workplace.
15 It is necessary to say something of the Union's organisation to understand how it was that Mr Ludlow came to write that letter.
16 The practice of the Union is to establish what is called a "lodge" at each workplace for the purpose of assisting in the representation of members. In his capacity as President, Mr Ludlow was, therefore, the senior local representative of those workers who chose to be members of the Union. As President, he had the responsibility of representing or advancing the views, claims and interests of the Union and, necessarily thus, of those workers who chose to be members of the Union. He first became Lodge President in April 2012. In taking up that office he took up under the rules of the Union duties which entailed ensuring that the health, lives and interests of his fellow workers were to the utmost protected. Mr Ludlow had earlier shown an interest in trade unionism. He had previously held positions within the Union as stand-in shift delegate and shift delegate.
17 Throughout July and also into August this year, the company did engage in a process of consultation meetings with the Union on the subject of redundancies at the mine. And that question was also the subject of dispute conciliation proceedings in the industrial commission in August this year. The end result nonetheless was a decision on the part of the company to proceed with redundancies. It then went through a process of voluntary redundancies and also forced or involuntary redundancies. Twenty-two workers took up voluntary redundancy offers. A further 36 employees were selected by the company for involuntary redundancy. Those 36 workers included Mr Ludlow, Mr Elliott and Mr Woods. It is in the selection and subsequent termination of Messrs Ludlow, Elliott and Woods that the acknowledged contraventions occurred.
18 At the time when each of those workers was terminated on 27 August 2013 their respective work histories with the company and in the mining industry were as follows.
19 Mr Ludlow is 30 years old. He has 13 years' experience as an underground coal miner of which some 11 and a quarter years have been spent with the company. Within the company, his experience as a long wall miner is three and a half years. At the time of his termination, he was a member of what was known as the "Longwall Red Crew" at the mine.
20 Mr Ludlow also fulfilled another role at the mine. He was the captain (as the leader is termed) of the Mine's Rescue Team at the mine. Mine rescue teams are activated through a series of procedures to respond to emergencies, major disasters and life or mine threatening events. To undertake his role, Mr Ludlow had completed the three week block release training course in February 2010 and thereby became a member of the Queensland Mines Rescue Brigade. It is worthy to note that, while he was a member and then when he assumed the role of captain, that team had performed well in local, state and national competitions.
21 Once again, the importance of organised mine rescue teams is a notorious fact for anyone with a knowledge of the mining industry or Queensland history for that matter. Team membership is a separate and important role voluntarily undertaken by workers at mine sites. The importance of that role is also recognised, again notoriously, in support that is given by the State Government and companies to the resourcing and training of mine rescue teams.
22 What of Mr Elliott? Mr Elliott is a middle-aged man, 54-years-of-age. He has 38 years' experience as a coal miner. Of his years of experience, 11 and a quarter years have been spent in employment with the company. From about February 2013 to the time of his termination in August he worked as a relieving bathhouse attendant. Before then he had worked on conveyor belts at the mine. He worked in what is known as the "White Crew Compliance".
23 Like Mr Ludlow, Mr Elliott was a member of the Union. He held the position of Secretary of the Union's lodge at the mine. He took up that position in April 2012. Again, like Mr Ludlow, his position as Secretary made him a member of the lodge committee. As such, his responsibilities also related to ensuring that the health, lives and interests of his fellow workers were to the utmost protected. Again like Mr Ludlow, Mr Elliott had an interest in trade unionism which predated his taking up office as Secretary. He had previously held union positions as shift delegate and Lodge Vice President. Further, at the time of his termination he was a member of the Queensland District Board of the Union. That is a position, as its name suggests, which has responsibilities beyond the particular mine.
24 Mr Woods is 37-years-old. At the time of his termination in August, he had 18.14 years' experience as an underground coal miner. All of that work experience was gained by him as an employee of the company. He worked on what is called "Red Crew Compliance" at the time of his termination. He also had specialist training and experience as an Emergency Relief Control Room Operator.
25 Mr Woods was a member of the Union. He also held a separate appointment as site safety and health representative at the mine under the Coal Mining Safety and Health Act. He was, and had been since June 2010, one of two such site safety and health representatives at the mine. He was re-elected to that position by the workers at that mine in 2011.
26 I shall describe later in these reasons for judgment something of the process which led to the redundancies. It is instructive to view that process through the prism of statements which were made on 27 August by Mr Pawley, at a pre-shift meeting of the company's deputies or supervisors. What he said that day, or at least the effect of what he said, is admitted. The effect of what he said was this:
"As you already know Luke Ludlow and Barry Elliott were amongst the first to go" or "I have sacked Luke Ludlow and Barry Elliott" or "They have sacked the two big unions representatives, Luke Ludlow and Barry Elliott" or "he had gotten rid of Luke Ludlow and Barry Elliot" or "I just laid off Luke Ludlow and Barry Elliott".
27 What I have recited is agreed to be the effect of what he said as recalled by four different deputies present at that meeting.
28 Also agreed is that Mr Pawley also said at that meeting words to this effect:
"I would have sacked the lot of the executive [of the North Goonyella lodge] if it wouldn't have looked so suspicious" or "I would have sacked them all [the North Goonyella Lodge Executive] but it would have been seen as a direct attack on the union" or "If it didn't look like he was obviously targeting the union so much he would sack the whole executive" or "half the union executive was gone and he couldn't rid the whole because that would be a legal case" or "I would have laid off the lot of them but it would have looked like we were having a shot at the union".
29 The overall effect of what Mr Pawley said that day is clear enough. It provides a very useful occasion to recall why in our country, for so many years, trade unions have been regarded as lawful and why it is that those who take what is called these days adverse action against persons because of trade union activity are amenable to penalty.
30 To understand that, one has to go back almost 200 years to a case which was passed into history as the Tolpuddle Martyrs' Case, but which is known in the law reports as the R v Lovelass and Others (1834) 172 ER 1380. That case was decided in England against the background of a group of farm workers, of whom Mr Lovelass was one, who wished to form a union to prevent reduction of their wages. Tolpuddle is a village in Dorset in England. The farm workers concerned met in the home of a Thomas Standfield. They there took an oath to combine together and to seek to prevent the reduction of their wages. They formed what was known as the Friendly Society of Agricultural Labourers. They were prosecuted under an Act, the Unlawful Oaths Act 1797 (UK). That Act had been passed by the British parliament in response to a threat of mutinies following the French Revolution. It made it illegal to make an oath and an offence to not reveal the oath in particular contexts. The workers concerned were convicted and sentenced to transportation to Australia. Such was the outpouring of popular outrage in respect of that prosecution and its sequel that the British government decided to return the workers concerned from Australia. Some later migrated to Canada. One remained here.
31 It is that case which is generally regarded as providing the inception of a movement which gradually throughout the 19th century led to the recognition by the British parliament and then by colonial parliaments here of trade unions as lawful organisations. The history of the progression from the Tolpuddle Martyrs' Case, through the 19th Century, to the recognition under the Trade Union Act 1871 (UK) and the Trade Disputes Act 1906 (UK), which have Australian equivalents, is set out, notably, in a work by Sidney Webb (later Baron Passfield) and his wife, Martha Beatrice Webb, The History of Trade Unionism (Revised Edition, 1920).
32 In Australia, drawing on that heritage, ever since we have had a federal industrial relations statute, trade unions have been recognised expressly by our parliament upon registration as lawful organisations, having a recognised representational role in our industrial relations system. The history of the provisions proscribing adverse action in the Fair Work Act is as long as federal industrial regulation in Australia. That history was canvassed in detail by North J in Australasian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165 at 169 at [113] and following.
33 A useful account of the evolving role of trade unions under the federal industrial relations system since the first statute, the Conciliation and Arbitration Act 1904 (Cth) through to the Fair Work Act and of a like role in the United Kingdom is to be found in an article by Victoria Lambropoulos and Michael Wynn, "Unfair Labour Practices, Trade Union Victimisation and Voice: A Comparison of Australia and the United Kingdom" (2013) Vol 34 Adelaide Law Review 43.
34 The long and the short of it is that this case displays a blatant, deliberate, concerted and fulfilled endeavour on the part of an employer to subvert a deeply rooted feature not just of our industrial relations system, but of our democracy itself. I cannot overemphasise the seriousness of the conduct concerned. It is no new subject that trade unions are regarded as lawful and that those who seek to take adverse actions against person on the basis of trade union activity are subject to penalty.
35 Of course, with the benefit of recognition as lawful organisations comes great responsibility for trade unions and those who hold office in trade unions. Over time, a number of commissions of inquiry, State and Federal, have exposed practices where the privilege of recognition of trade unions has been abused, or where those who hold office within unions have abused a privileged position. I refer in this regard to the report of the Royal Commission into Alleged Payments to Maritime Unions by the Honourable J.B. Sweeney, the reports of the Royal Commission on the Activities of the Federated Ship Painters and Dockers Union by Mr F. Costigan QC, the report of the Royal Commission into the Activities of the Australian Building Construction Employees' and Builders Labourers' Federation by the Honourable J.S. Winneke, and the various reports by Mr Cooke QC into the Activities of Particular Queensland Unions. Because there are cases presently before the courts, it is neither necessary nor in any way appropriate to give more contemporary examples than those one will find within those Royal Commission reports of occasions when the privilege has been abused.
36 It is a factor of very great relevance in this case, when it comes to penalty, to take into account the long standing recognition of trade unions and proscribing of adverse action in respect of persons on the basis of trade union activity.
37 No less important is the proscription in the Fair Work Act of adverse action on the basis of a workplace right being exercised. Once again, in the mining industry, the role undertaken under mine safety legislation is an important one. It is highly relevant, in my view, to take that also into account in relation to penalty.
38 There is for each of these reasons a very singular need indeed for a penalty which will serve as a general deterrent to a subversion both of contemporary statute law as well as, for the reasons given, deeply held societal beliefs recognised by our Parliament for so very long.
39 There are other factors to take into account, which I shall mention later in these reasons, which serve necessarily to temper justice with mercy in relation to the imposition of penalty. First, it is necessary to give some further detail in relation to the process which led to the termination of these three workers.
40 I have already mentioned the engaging by the company in a process of consultation. It is important to note that no part of this case involves an allegation that there was other than genuine consultation. In other words, this is not a case where the requirements for consultation were breached in a way, for example, in which Queensland Rail breached such requirements in the context of the partial privatisation of that hitherto state owned enterprise: see in this regard QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2010) 204 IR 142 (Queensland Rail Case).
41 The company developed selection criteria by reference to which workers were assessed. Against the background of that assessment, decisions were then made as a result of particular points allocations as to which workers would be selected for involuntary redundancy. The underground coal manager at the mine, Mr Niehaus, completed and returned 170 worker assessment forms for mine production workers over a two day period, commencing on 18 July 2013. That number represented about two-thirds of the persons at the mine who were employed under the enterprise agreement and who comprised the permanent workforce at the mine. Permanent, of course, is a relative term in any employment.
42 Mr Niehaus was assisted by a Mr John Deacon, the development superintendent, and a Mr Terrance Courts, who was the longwall coordinator. The product of his assessment work was sent to another company officer, a Mr Serhan. There were a number of reworkings and different weightings which came to be allocated to that assessment process. The detail of that is to be found in the agreed statement. It is not necessary to set out that detail in these reasons for judgment. It suffices to note that there was a deliberate manipulation of the weighting process, so as to yield a result which saw the termination of Messrs Ludlow, Elliott and Woods.
43 I was invited by the Union to make particular findings about falsity of affidavits filed on behalf of the company in relation to the process concerned. The affidavits concerned were not read in this proceeding. The content of those affidavits is not before me. It would be procedurally unfair to make findings as to falsity without hearing from the deponents concerned, even if the affidavits were read. The facts which are before me are those in the agreed statement. Those facts reveal a case serious enough in itself, for all of the reasons which I have mentioned already. The end result is that, on the evidence before me, it is not possible to identify precisely who undertook the process of manipulation. What is clear enough - pellucidly clear, sadly - is the overall directing mind and will at local company level in respect of the process. And that, as one might readily surmise from the admitted effect of statements made, is Mr Pawley, the General Manager at the time.
44 The company, as I have stated, was initially disposed to contest the contraventions. That is reflected in the undertaking of various steps for which provision was made by me by direction at the first directions hearing in September. It is necessary to recite that, because the company is the subject of an application by the Union for an award of costs. The company's initial disposition to contest was reflected in its deciding not to make particular admissions responsively to a notice to admit, but, rather, to file series of affidavits - affidavits which, as I have stated, were not, in the end, read.
45 That the company did that, that approach visited upon the Union a need to file affidavits in reply. In November, the company, as it was required by court order to do, provided discovery, under categories settled between the parties, of documents which were regarded as directly relevant to issues raised by the contraventions alleged. The company, as far as I can see, approached that task with a very keen eye to the responsibilities which it had to disclose documents which both assisted as well as were adverse to its case. At or about that same time, the company commenced a process which led to the acknowledgement of the contraventions concerned. That process seems to have started on or about 20 November 2013.
46 The inference which I draw - and, in that regard, I am drawing as well on the oral and affidavit evidence of Peabody Energy's chief of operations for Australia, Mr George Schuller - is that the company formed a view that it could not and should not responsibly continue to contest the case. That view appears to have been formed at the most senior Australian level, which is, in effect, Mr Schuller's level. That particular change in disposition has led to a considerable saving, both in expense for the Union as well as the public purse, for our courts are funded through the consolidated revenue.
47 I am convinced as well, having heard Mr Schuller, that at the most senior level in Australia, Peabody Energy is genuinely remorseful and that that is evidenced by the change of disposition which has seen the promotion jointly of declarations and agreement to particular facts. That also is a highly relevant factor to take into account in relation to penalty. More generally, in relation to penalty, factors which are pertinent were helpfully collected by Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14, at [14]. As is plain from his Honour's reasons for judgment in that case, those factors are neither exhaustive nor are they to be applied uncritically.
48 In this case, the company is, for reasons which I have given, well resourced in its ability to command both in-house expertise and external advice in relation to industrial relations. It should be noted that a senior human resources manager, Mr Kruger, was involved in the process that led to redundancy. It is not possible, on the facts to hand, to identify Mr Kruger as a person who was a party to what was Mr Pawley's plan, but he was a source of advice. The nature of any consultation with him is revealed only in email exchanges which are neutral as to whether he was involved knowingly in the manipulation to the end which Mr Pawley had so clearly in mind.
49 That the company has the resources to command high quality advice as to the content of our industrial relations laws and, nonetheless, has, in this instance, embarked on such reprehensible conduct, is a factor to take into account in relation to penalty.
50 It is always important, as well, to take into account, in relation to contraventions, the victims concerned. A job is a very important asset for a worker. It provides not just a means of financial award but for many men and women it is a source of personal pride, satisfaction and also society and friendship. For particular workers to have been dismissed on the basis of their engaging in either lawful trade union activity or the exercise of a workplace right therefore adds insult to an injury for which, on many an occasion, there can be only monetary compensation in the form of, in this instance, a redundancy payment.
51 There can often be tension as to the nature and extent of redundancies. As I have said already, it is neither necessary nor appropriate, given the existence of proceedings in the industrial commission, to explore that other than at that level of generality. What is relevant in relation to penalty is to deprecate and to visit appropriate penalty upon an employer who has used a redundancy process as a cloak for an assault on lawful trade unionism. It will often be the case that men and women who assume the role of being a spokesman for fellow workers through a position on a union will come to be identified with what is perceived as obstruction to managerial prerogatives when all they are truly doing is giving voice to a particular interest group in a workplace. To put matters in the vernacular, it is important that management play the ball and not the man when it comes to dealing with issues raised on behalf of workers by trade union members, office holders and officials. As I have said already, there is a converse to that which entails the responsible discharge of trade union functions, not abuse.
52 As far as specific deterrence is concerned, it does seem to me very likely having regard to Mr Schuller's evidence, that there will not be a repetition of this behaviour on his watch as it were. That is not to say that the workers concerned have been given the satisfaction of an apology. Sometimes that does occur but it is not within the power of the Court to order that. For all that, I do not see that there is a need for specific deterrence having regard to the course which the case has come to take. Further, it is to be noted that the company has not in the past been proved to have engaged in the type of activity charged. It is therefore to be dealt with as a first offender.
53 Another factor to take into account is the importance, not just of the observing of, but of respect for, the terms of enterprise agreements. They are to be respected by all of those who are bound by them. It is also relevant to take into account that this particular agreement was the result of proceedings in the industrial commission. The Commission's role also is to be respected and where a transgression occurs so very deliberately here, it is to be the subject of appropriate penalisation.
54 The so-called concerns which I shall identify in the declarations made were not sought to be defended by evidence by the company in the context of what proved to be a penalty hearing. What I mean by that is that there was no affirmative evidence, much less any contest, in relation to the denials by the workers concerned that the so-called "concerns" had any foundation in fact. Their evidence is to the contrary. It is important that they be recognised in the future as persons who are not blemished in the way that the company sought to and did blemish them for the purposes of the redundancy rating process.
55 There is agreement between the parties that the workers concerned should be and can be reinstated. It was put on behalf of the company that that may have a sequel in terms of three other workers being made redundant. It is for the company to make its own value judgement according to law as to whether there is indeed such a sequel. In that regard, it is to be noted that the company has been on notice since the institution of these proceedings of the contingency that reinstatement may be ordered. If that means that there are particular workers who according to the exigencies of the day become surplus that will doubtless carry with it a compensatory outcome for the workers concerned. Once again, it is neither necessary nor desirable to embark upon an exploration of whether or not consequential terminations might occur. That is for another day, if indeed that day comes at all.
56 A consequence of ordering the reinstatement of the workers concerned is that their dismissal must necessarily stand at nought. In other words, the intent of the ordering of reinstatement is that for all purposes they be regarded as having continuity of employment. That will have the consequence that it is necessary for each of the workers to refund the amount of long service leave entitlements, which was paid to each as a consequence of termination.
57 In stating that, I have expressly taken into account the statements Mr Ludlow made himself and on behalf of the other two workers as to a desire, if it were possible, to retain long service payment and to start long service accrual again upon the date of reinstatement. Whilst I understand very much the attraction of the immediacy of receipt of that lump sum and the uses to which it was put, it does seem to me that one cannot, again to use the vernacular, have one's cake and eat it too. Reinstatement and the continuity that carries with it will have the consequence that long service leave payments will have to be repaid and instead each of the workers concerned will continue to accrue long service entitlements on and from their reinstatement and taking into account existing service which, as a consequence of the reinstatement orders, is to be regarded as unbroken.
58 The most difficult question in this case in my view, is how to characterise the conduct concerned in terms of whether it should or should not be regarded as a course of conduct. So far as the alleged admitted breaches of s 50 are concerned that requires consideration of s 557 of the Fair Work Act which provides by subsection (1):
For the purposes of this part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:
(a) the contraventions are committed by the same person; and
(b) the contraventions arose out of a course of conduct by the person.
59 The contravention of s 50 is by s 557(2)(c), one of the civil penalty provisions to which s 557(1) is directed. Subsection 557(3) is not relevant because as I have stated, there has been no earlier contravention by the company. In the Queensland Rail Case at [46]-[49], and having set out the terms of s 557, Keane CJ as his Honour then was, and Marshall J, in their joint judgement observed:
The appellants argue that while there were breaches of twenty (20) different agreements, there was a breach of only one civil remedy provision. In this case, so it is argued, all the breaches relied upon by the unions contravened the same civil remedy provision, viz, item 2 of Sch 16 of the Transitional Provisions Act.
It seems to us, as it seemed to the primary judge, that the difficulty with the appellants' argument is that item 2(2) provides: "A person must not contravene a term of an agreement based transitional instrument that applies to the person". The note to item 2(2) states that it is a civil remedy provision.
There may be one course of conduct in respect of each agreement associated with the relevant term of each of many agreements. There are, for the purposes of s 557(1), contraventions of multiple terms of multiple agreements. Accordingly, s 557(1) does not avail the appellants.
Even if s 557(2) does not apply to a case to oblige to treat as one contravention all the consequences of a particular piece of conduct, it is open to the Court, in an appropriate case, to take into account, as a matter of discretion, the circumstance that the same acts or omissions have resulted in multiple contraventions by multiple breaches of a term cast in similar language in each of multiple agreements, by imposing a lesser penalty or even no penalty in respect of breaches of some terms, while imposing a substantial penalty in respect of breaches of other terms (Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216 at 223; 42 IR 255 at 261; Kelly v Fitzpatrick (2007) 166 IR 14 at 17).
60 Also relevant in relation to whether there is a single course of conduct are observations made in Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461. In that case, at [35] and following, Middleton and Gordon JJ addressed the subject of whether a single course of conduct was to be found. In particular, they observed:
The appellants submitted that the sentencing discretion miscarried because her Honour failed to consider a relevant matter (whether the three contraventions ought properly be seen as arising out of the one course of conduct) or because her Honour misdirected herself in the application of the "one course of conduct" or the "one transaction" principle. These grounds of appeal should be dismissed.
Their Honours continued:
As the passages in Construction, Forestry, Mining and Energy Union v Williams (2009) 191 IR 445 explain, a "course of conduct" or the "one transaction principle" is not a concept peculiar to the industrial context. It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is "the same criminality" and that is necessarily a factually specific inquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.
61 In my judgment in Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011] FCA 1064, I drew attention to observations made in the High Court in a civil penalty case arising under the Customs Act 1901 (Cth) (Customs Act), L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157, another case which exemplifies the course of conduct or one transaction principle in relation to sentencing. In that case, a particular course of conduct constituted by an unlawful importation gave rise to what were in law a number of separate offences against the Customs Act, namely, the unlawful importation itself and evasion of duty and the making of a statement which was false. The case provides a useful example of a course of conduct giving rise to strictly separate offences, but which, if penalised without taking into account that they are but different parts of the one transaction, could lead to oppression or duplication in penalisation.
62 In this particular case, the contraventions of s 340 and s 346 fall outside s 557. That means nothing more than that the particular statutory provision in respect of a single penalty does not apply. It does not mean that more general principle in relation to taking into account a single course of conduct or what is, in effect, a single offending transaction is inapplicable.
63 Here, it seems to me that the means by which the company achieved the end of terminating unlawfully each of these workers included a breach of clause 38.5 of the Enterprise Agreement. Thus, in respect of what was in effect one transaction, namely, the termination of a particular worker, two contraventions occurred: the contravention of s 340 or, as the case may be, section 346, and a separate but not unrelated contravention of s 50. That s 50 contravention was a step along the way to an unlawful end. To that extent, I consider that the single course of conduct or one transaction principle has a role to play in this case in relation to sentencing.
64 That there was a common thread in the form of a motive on the part of Mr Pawley to, to use his words, "take out" local union representation, does not in my view mean, for the reasons given in CFMEU v Cahill, that there is, for the purposes of s 557, a single course of conduct so far as the s 50 contraventions are concerned. There looks to have been an overall plan, but that overall plan was nonetheless implemented by a cynical decision individually executed to "take out" particular workers who had particular roles, either union or otherwise, at the mine. For that reason, I do not regard s 557 as applicable to the s 50 contraventions such that there is but one penalty for what is to be treated as a single contravention. Rather, the approach which I take is that there are three transactions which were implemented which had in each instance the aggravating feature of a contravention of clause 38.5 of the Enterprise Agreement.
65 It is agreed between the parties that the maximum penalty in respect of each contravention is $51,000. That maximum is the product of taking into account the contemporary value of a penalty unit as provided for in s 4AA(1) of the Crimes Act 1914 (Cth) and then applying that to the penalties for contraventions of these provisions for which the Fair Work Act provides. It is always instructive to take into account the maximum penalty. In many ways that can be a starting point.
66 The effect of the view which I have reached in relation to the inapplicability of s 557 to the s 50 contraventions is that each would carry the maximum of $51,000. So too, would each of the contraventions of s 340 or, as the case may be, s 346. In aggregate, however, the maximums for those particular contraventions would yield an excessive penalty for the circumstances of this case.
67 There is, as I have said, a need to impose a penalty which is sufficient not just to penalise the offender concerned, but also to recognise a need for general deterrence. Regarding, as I do, the contraventions of s 50 as an aggravating factor in three individual dismissal transactions, the view that I have reached is that each contravention of s 340 or, as the case may be, s 346 should attract a penalty of $30,000. Each contravention of s 50 should attract a penalty of $10,000. I have expressly taken into account in formulating each of those penalty amounts the necessary discounting which must occur in recognition of the company's cooperation and, as I have said, contrition. I have chosen separately to penalise the contraventions of s 50 so as to recognise that they have a separate aggravating quality. That I have chosen not to make them equivalent to the s 340 or s 346 contravention penalties is to recognise that they are but part of, and a step along the way to, an unlawful termination of each of the workers concerned.
68 I have measured that outcome, $30,000 in each instance in aggregate and $120,000 in total, by reference to the totality principle. In other words, what I have done is to ask myself both in respect of each individual transactionally-based aggregate penalty as well as in aggregate overall whether the total outcome is nonetheless to be regarded as excessive. The view that I have reached is that it is not. In total outcome my view is that the penalty is sufficient unto this day, having regard to the importance which I have mentioned of recalling the lawfulness of trade unions and the historic penalisation of those who take adverse action against persons on the basis of trade union membership or activity. I have also taken into account a contemporary recognition of the importance of workplace rights in the Fair Work Act.
69 There is a question as to whether or not that penalty ought to be allocated, as the Fair Work Act permits, to the Union. The provision under our law, in this case the Fair Work Act, for the allocation of civil penalties to persons who in law are known as "common informers" is, again, no new subject. The Union in this instance has served, for all of the reasons that I have mentioned, a particularly important public interest in drawing to the attention of the Court and through the Court the Australian community these particular transgressions and the lessons which they hold for all of us.
70 The awarding of the penalty to the Union was not quite properly opposed by the company. Rather, the company took the stance of neither consenting to nor opposing such an award, fully recognising in so doing the longstanding precedent for such awards to be made. This is a paradigm case, in my view, where the ordering of the payment of the penalty to the Union is appropriate.
71 There are two remaining issues for determination. One concerns costs, the other whether or not to release the Union from the implied undertaking to use solely for the purposes of these proceedings discovered documents and affidavits from the company which have been served upon it but not read in open court.
72 First, costs. The Court does not have an unfettered discretion in relation to the awarding of costs in a matter arising under the Fair Work Act. Rather, s 570 provides materially:
(1) A party to proceedings … in a court … in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) [...] .
73 Then, section 570(2) provides, materially:
The party may be ordered to pay the costs only if:
[…]
(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs.
[…]
74 In this particular case, the proceedings have, as is usual in the Court, been case-managed. There were particular directions made as to steps leading to trial. Overall, and this was a submission made on behalf of the company, those steps occurred in a compressed timeframe, compressed in the sense that a period of slightly less than three months was envisaged as between the first directions hearing and the commencement of trial. Those steps occurred against the background of provision in the Federal Court of Australia Act 1976 (Cth) for parties to approach litigation with a particular disposition not to contest issues which are truly not reasonably capable of contesting.
75 The company's initial response, as I have said, was that of contesting, but it appears that upon further and more detailed consideration of company documents and information as to relevant circumstances and responsible advice that disposition changed. The result, though, as I have indicated, was at the very least a visiting upon the Union of costs associated with the preparation of the affidavits in reply.
76 The company, self-evidently from the discovered documents, always had within its possession a set of documents which sent a very particular message upon analysis as to what had occurred. In the ordinary course of events, that analysis ought to have occurred within the time allowed for the filing of affidavits in response by the company. That it did not occur had the consequence which I have mentioned. In my view, it was not reasonable, having regard to the events which transpired in this case, for the Union to have been put to the expense of preparation of the affidavits in reply. The expenses before then and afterwards look to me to be ordinary incidents of litigation for which the position ordinarily in proceedings under the Fair Work Act should be no order as to costs.
77 As a result of a submission of the Union, there is another question to be answered, given that I am satisfied for the purposes of s 570(2)(b) that there was an unreasonable act, namely the failure to identify the particular discriminating conduct which had occurred in the course of the preparation of affidavits in chief for the company which visited which caused the Union to incur the costs of affidavits in reply. That question is: whether costs should be awarded on an indemnity basis? As to that, there is reason to be grateful to Shepherd J for his scholarship in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225. In that case, and in a non-exhaustive way, his Honour canvassed types of case in which courts had, in the past, been disposed to order indemnity costs.
78 It is certainly possible to envisage cases where an unreasonable act or omission such as would permit the awarding as a matter of discretion indemnity costs. It does not, in my view, axiomatically follow that because one is satisfied for the purposes of s 570(2)(b) that one must exercise the discretion given under s 570(1) always to order indemnity costs. Each case must be considered on its individual merits.
79 In this particular case, the company ought to have acted more quickly but I do not detect, in the initial absence of confronting, any element of malice as opposed to a lack of reasonable attention on the part of the company (and I say nothing as to its advisors) to the obligations of a party in a case managed court such as this. For that reason, I regard the case as one appropriate for an award of costs but not costs on an indemnity basis. The order for costs that I propose to make is that the company pay the Union's costs of and incidental to the preparation and filing of affidavits in reply.
80 There remains a question as to what use, if any, ought to be permitted to be made of either discovered documents or, for that matter, affidavits of the respondent filed and served, but not, in the end, read in the proceedings? A starting point in answering that question is an understanding of the proceedings which are presently unresolved in the industrial commission. Those proceedings entail a general challenge to the redundancies which occurred at the mine and to the nature and extent of those redundancies.
81 The commission, as I was reminded in submissions, has a power itself to order a process which resembles discovery in a court. That was said to warrant not releasing the company from its implied undertaking but rather consigning the question of the extent to which discovery should be ordered, to a value judgment made by the commission. In terms of principle, there was agreement between the parties that the discussion by Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Limited (1992) 38 FCR 217 was of assistance. I respectfully agree. The summary offered by the head note is an accurate recitation of factors which, for all of the reasons set out by Wilcox J in that case, are relevant to an exercise of discretion as to whether to release a party from the implied undertaking: the nature of the document, the circumstances which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document, in particular whether it contains personal data or commercially sensitive information, the circumstances in which the document came into the hands of the applicant and perhaps most importantly of all, the likely contribution of the document to achieving justice in the proceedings.
82 Here, there are two categories of documents concerned. What one might term the "rump" or remnant of those documents discovered and which have not found their way into annexures into the agreed statement and affidavits of the respondent filed and served but not read. Those categories are necessarily considered separately.
83 It was submitted on behalf of the company that there was a level of generality in the Union's submission in relation to discovered documents. That level of generality is more apparent than real, given that the Union's submissions were cast against the background of a deliberately settled agreed list of categories of document considered directly to be relevant to the issues in the proceedings. The specifics of the documents concerned are then to be found in those categories. Further, for reasons which strike me as sound, the company chose not to mask out from the various manifestations of the assessment process in documents references to employees other than the three workers the subject of these proceedings. The reason why that strikes me as sound is that to measure the discrimination which occurred in relation to these particular workers, it was at least possible, if not probable, that it would be necessary to compare and contrast their fate with that of others in the assessment exercise undertaken. The documents concerned chart, therefore, a process relevant not just to Messrs Ludlow, Elliot and Woods but also to a wider class of employees. They were not documents created expressly for these proceedings but they were expressly created for a redundancy program which has in part been exposed in these proceedings and which same program is the subject of proceedings in the commission.
84 The Union and the company are the parties both to this proceeding and that in the commission. It would, in my view, be subversive of, rather than assist, in the achieving of industrial justice in the commission, were the Union to be subject to the implied undertaking as to the discovered documents. It has necessarily been exposed, for the purposes of these proceedings, to the whole of the documentation considered directly relevant in relation to a case which raised a consideration of the redundancy process as applied to three workers in particular. For that reason, I propose in relation to so much of the discovered documents as are not the subject of annexure to the agreed statement, to order that the Union be released from the implied undertaking. There is no need for such an order, nor was such an order sought, in relation to annexures to the agreed statement. For the avoidance of doubt in that regard, I propose to order that the documents which are annexed to the agreed statement may be inspected by any person upon payment of such fee, if any, as is applicable.
85 As to the affidavits, these, as I have said, whilst prepared and filed and served were not read. Rather, they were overtaken as a result, inferentially, of further investigation which led to the company's agreement to a statement of facts. In the ordinary course of events, these affidavits, not having been read, they would be unavailable for general searching by the public in the absence of a particular application and court order. The view which I have reached in relation to those documents is that having regard to the agreed statement, they could give an incorrect impression as to a position which the company regards as accurate in terms of what occurred and which is reflected in the agreed statement. That is not to foreclose a possibility that there may be, if occasion arises, in the course of the commission proceeding, a particular utility upon application in the selective granting of permission. I deliberately do not foreclose that possibility. All that I do propose to do is not presently accede to so much of the application for release as relates to affidavits of the company filed and served but not read but expressly to reserve liberty to apply in that regard on a future occasion if the Union is so advised.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.