CONSIDERATION
12 As a result of the substantial agreement by the parties as to the facts and the legal consequences of the admitted conduct of Safety Glass, the task which I have to perform is a limited one. It is to fix an appropriate penalty for Safety Glass's contravention of s 502(1).
13 The parties are agreed and propose that any such penalty should not exceed $11,000.
14 As I observed in Hills v Sutton [2007] FCA 2033 at [7]:
"The Court is not bound to accept and impose … proposed penalties but will do so if persuaded that, in all the circumstances, they fall within the permissible range: Cf NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 290-1. In Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at 565 Jessup J expressed the view, with which I respectfully agree, that the phrase "permissible range" in this context "refers to a range which would be permitted by the court, that is, a range within which the penalty is neither manifestly inadequate nor manifestly excessive.""
15 In determining an appropriate penalty the Court will have regard to all the circumstances of a particular case. There is no immutable list of considerations which must be taken into account although the principle of deterrence, both specific and general, will require consideration in each case: see Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 at 374-7 [57]-[62] (per Branson and Lander JJ).
16 In addition to specific and general deterrence I consider that the following considerations have relevance in the circumstances of the present case:
· The nature and extent of the conduct which led to the contravention of the Act.
· The circumstances in which that conduct took place.
· Whether there had been similar previous conduct by Safety Glass.
· Whether or not the contravention was deliberate.
· Whether senior management was involved in the contravention.
· Whether Safety Glass has exhibited contrition.
· Whether Safety Glass has taken corrective action.
· Whether Safety Glass has co-operated with the CFMEU in its attempt to ensure compliance with the Act..
17 I have already outlined the nature of the contravening conduct and the circumstances in which it took place. The two union officials were attempting to exercise their undoubted right of entry to Safety Glass's premises with a view to interviewing workers. The CFMEU was entitled to represent the industrial interests of employees working for Safety Glass. Their attempt to enter the premises was impeded by a senior employee of Safety Glass. He clearly acted deliberately. His reasons for acting in the manner in which he did have not been explained. Whatever the reasons, Safety Glass admits that his actions hindered or obstructed the CFMEU organisers in the exercise of their statutory right of entry.
18 The Act provides a detailed scheme to regulate the exercise, by union officials, of their right to enter an employer's premises. Various restrictions are placed on the right of entry to minimise inconvenience to the employer or disruption to productive work. Provided, however, that the right of entry is exercised in accordance with the provisions of the Act, union officials are entitled to unimpeded access to business premises for prescribed purposes. This is an important right which enables unions to recruit members and protect the industrial interests of their members.
19 As already noted officials of the CFMEU had exercised rights of entry at Safety Glass's premises, without obstruction, in the weeks leading up to the incident on 11 August 2009. Mr Vendramini and Mr Ross returned to the premises on 19 August 2009 and exercised their rights of entry. They were, on that occasion, provided with a room in which to have discussions with employees. No obstacle was placed in their way.
20 This proceeding was commenced on 2 October 2009. Until that occurred Safety Glass was unaware that the CFMEU was contemplating taking action against it. Once the proceeding had been commenced Safety Glass entered into discussions with the CFMEU which led to its acknowledgment of liability and left only the question of determination of quantum of penalty for the Court. Its co-operative approach ensured that the CFMEU was not forced to incur the expense of a contested hearing.
21 Safety Glass has not been found to have contravened the Act or any of its predecessors, prior to the events on 11 August 2009.
22 I infer, from the fact that the two organisers were given unimpeded access to the premises on 19 August 2009, that Safety Glass quickly appreciated that Mr Vasiljevic had acted improperly on 11 August 2009 and had taken steps to ensure that his error was not repeated.
23 As a result I do not consider that specific deterrence is a weighty consideration in the present case. General deterrence is. It must be made clear to employers that they are not entitled to deny access to their premises to union officials who are exercising lawful rights of entry under the Act.
24 In all the circumstances I consider that the appropriate penalty for the contravention is $9,000. This sum is within what I regard to be the "permissible range" of penalties which are available for a contravention of this kind in these circumstances which I have explained.
25 The parties are agreed that any such penalty should be paid to the CFMEU as the initiating party. Such an order is provided for in the Act (s 546(3)(b)) and is consistent with the general rule which is applied in such cases: see Plancor at 371 [44] (per Gray J). I will so order.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.