Cruse v Multiplex Limited

(1) In respect of contraventions of section 187AA or 187AB, 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 who contravened or is contravening that section a penalty of not more than $10,000; (b) if the person contravened or is contravening section 187AB - an order requiring the person to pay to an employer compensation of such amount as the Court thinks appropriate; (c) injunctions (including interim injunctions), and any other orders, that the Court considers necessary to stop the contravention or remedy its effects; (d) any other consequential orders. (2) The Court must not make an order under paragraph (1)(b) requiring compensation to be paid to an employer who has contravened subsection 187AA(1) in connection with the contravention referred to in that paragraph. 4 The parties presently before the Court tendered a statement of agreed facts. On the basis of those facts, the fourth and fifth respondents admitted that they contravened s 187AA(2) by accepting payment from Multiplex in circumstances where Multiplex would contravene s 187AA(1) by making the payments. Further, on the basis of the agreed facts, the second, fourth and fifth respondents admitted that they contravened s 187AB(1)(a) by making a claim for payment to nine employees (including the fourth and fifth respondents) (the employees) in relation to a period on 5 and 6 August 2003 when the employees engaged in industrial action as defined, and they contravened s 187AB(1)(b) by organising or engaging in the industrial action against Multiplex with an intent to coerce Multiplex to make the payments. The action taken by the fourth and fifth respondents in making a claim for payment and engaging in industrial action constitutes action taken by the Union. 5 The remaining matters for the attention of the Court relate to the imposition of penalties and other relief arising from the admitted contraventions. 6 The following description of the circumstances relating to the proceeding is taken from the statement of agreed facts. 7 The contraventions arose out of industrial action taken on 5 and 6 August 2003. Just prior to these dates, on 1 August 2003, a construction worker was killed in Shepparton while performing irrigation channel works. That work was not connected with the work on the Concept Blue project. The death brought into operation the Onsite Fatalities Policy and Procedure which had been adopted by shop stewards of several divisions of the Union on 25 June 2002. The statement of agreed facts describes the policy as follows: 13 The Policy is in writing and states, amongst other things, that when the Victorian Construction Unions (VTHC BIG) have a confirmed death of a unionised construction worker arising out of an industrial accident on site, the following steps will be taken: 13.1 The immediate needs of the affected family will be the first priority. 13.2 The site where the death occurs will immediately stop work and other sites of the same principal contractor will also stop. 13.3 Mass meetings on site will be called in the industry on the following day to hear a report on the incident. Then the following will occur: 13.3.1 All productive work will stop and a full, thorough safety audit will be conducted by all available safety committee members from the basement to the roof and any OHS problems immediately rectified. Clean up works arising from the audit will be undertaken (as per VBIA) with areas progressively opened to production once listed items have been addressed. 13.3.2 In addition the site meetings will take up an agreed minimum amount per worker to be collected by the relevant Shop Stewards. This will be donated immediately to the deceased worker's family via the appropriate union office where a receipt will be issued and shall be displayed on site noticeboards. 13.3.3 Any other actions required can be voted on at the site mass meeting. 13.4 Industry-wide stopwork action may occur with the mutual agreement of BIG Secretaries, taking into account the nature and circumstances of the incident leading to the death of the worker. 8 The next working day after the construction worker died in Shepparton was 5 August 2003. The employees started work at 7.00 am. At 8.30 am they attended a meeting conducted by the fourth and fifth respondents, which was also attended by the employees of the sub-contractors on site. Following the meeting, a full safety audit of the site was undertaken by the 'safety committee', including the fifth respondent and members of Multiplex's management. The safety audit concluded at about 1.00 pm. At about 1.10 pm, Multiplex asked the fourth and fifth respondents to return to work and said that nobody would be paid for the lost time. Some of the employees and all of the employees of the sub-contractors did not perform productive work during the safety audit. Following the meeting the employees refused to work for the rest of the day, and also from the time they were rostered to start work on the following day. They attended a meeting at 7.30 am on the following day, 6 August 2003, which included employees of the sub-contractors and was conducted by the fourth and fifth respondents. The meeting resolved not to return to work until the dispute over payment was resolved. At 8.30 am an organiser from the Union met with representatives from Multiplex and told them that he would instruct the employees and the employees of the sub-contractors to return to work. The organiser then conducted a mass meeting of the employees and the employees of the sub-contractors, and at about 10.00 am, after this meeting, the employees and the employees of the sub-contractors returned to work. 9 It was agreed between the parties that the employees and the employees of the sub-contractors were acting in accordance with a decision made by, or a direction given by, or with the consent of the fourth and fifth respondents. It was further agreed that the conduct of the fourth and fifth respondents was the conduct of the Union. 10 Multiplex paid the employees for 5 August 2003 on or about 8 August 2003, and for 6 August 2003 on or about 15 August 2003. The amount received by the nine employees for the period from 1.10 pm on 5 August 2003 to 10.00 am on 6 August 2003 amounts to $1057.35. 11 Each of the parties relied on further evidence. The applicant filed an affidavit in which he outlined the recent statutory controls on the building industry. He said that in the First Report of the Royal Commission into the Building and Construction Industry dated 5 August 2002, the Commissioner 'documented a culture of widespread unlawful activity including threatening and violent behaviour, illegal industrial action and paying, claiming and receiving strike pay.' The Commissioner recommended the establishment of an interim body to secure the rule of law in the industry as a precursor to the establishment of a national agency. The applicant said that the Final Report of the Royal Commission dated 24 February 2003, referred to the issue of strike pay as follows at p 131: A great deal of evidence was presented to the Commission of occasions when, following a period of unprotected industrial action: (a) employees demanded strike pay in respect of the period of industrial action; (b) unions, or officers, members or employees of unions, made claim for employers to pay strike pay to employees in respect of such a period; and (c) employers paid strike pay to employees in respect of such a period. Paying, receiving and demanding strike pay in these circumstances contravenes ss187AA and 187AB of the Workplace Relations Act 1996 (C'wth). Those provisions are widely disregarded in the building and construction industry. One senior union official told the Commission, in relation to strike pay, 'every time there's been a strike, I've asked for it'. Strike payments are sometimes concealed, disguised or misrepresented in invoices and records. Widespread disregard for the laws of the Commonwealth Parliament should not be tolerated. 12 The applicant then explained that the interim body, the Building Industry Taskforce (the Taskforce), which commenced operation on 1 October 2002, reported in March 2004 and September 2005 evidence of widespread disregard of the provisions of the Act such as the contravention of the freedom of association provisions and the widespread making of and receipt of inappropriate payments and unlawful strikes and threats of unlawful strikes. He then referred to statistics which suggested that the building and construction industry during periods between 2003 and 2005 accounted for a greater proportion of working days lost than the proportion of construction and building workers in the work force. He explained that the Australian Building and Construction Commission (ABCC) was established on 1 October 2005. He outlined the objects of the Building and Construction Industry Improvement Act 2005 (Cth) as follows: 9. The main object of the BCII Act is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole (subsection 3(1) of the BCII Act). The BCII Act aims to achieve its main object by the following means: 9.1 improving the bargaining framework so as to further encourage genuine bargaining at the workplace level; 9.2 promoting respect for the rule of law; 9.3 ensuring respect for the rights of building industry participants; 9.4 ensuring that building industry participants are accountable for their unlawful conduct; 9.5 providing effective means for investigation and enforcement of relevant laws; 9.6 improving occupational health and safety in building work; 9.7 encouraging the pursuit of high levels of employment in the building industry; 9.8 providing assistance and advice to building industry participants in connection with their rights and obligations under relevant industrial laws (subsection 3(2) of the BCII Act). 13 He then explained the actions of the ABCC in relation to the circumstances of this proceeding as follows: The ABCC is (and the Taskforce was) committed to taking legal proceedings, fearlessly and without favour or partiality, against those in the industry who contravened the law, irrespective of whether they were employers, employees or unions. On 1 August 2003 a fatality occurred on a farm in Shepparton, nearly 200 kilometres from the Melbourne CBD. As a consequence of this fatality the Taskforce investigated allegations that 33 major building sites in Melbourne were shut down for part or all of two days. To date, the Inspectors appointed to the Taskforce have commenced 18 proceedings against multiple Respondents, including Multiplex, the CFMEU, CEPU, 17 subcontractors, 6 shop stewards or delegates, 3 union organisers and a number of employees of Multiplex. Each of these proceedings concerns (amongst other allegations in some cases) the events which occurred on building sites in Melbourne on 5 and 6 August 2003 following the fatality in Shepparton. The proceedings were instituted in direct response to an apparent industry wide disregard for the rule of law concerning strike pay. The ABCC does not intend to flood the Courts with isolated prosecutions. But it recognises the need for appropriate cases to be prosecuted to achieve the goal of general deterrence from continued unlawful industrial action. There are no further cases pending that relate to these background facts. 14 The Union relied on an affidavit affirmed by its State Secretary, Martin Kingham. He has held that position since the mid 1990s and held an equivalent position in the predecessor organisation from 1992. Mr Kingham explained that in 2003, there had been a general practice in the construction industry that, following the death of a construction worker, there would be a safety audit on all commercial construction sites followed by rectification of any safety issues found during the safety audit. While the safety audit and safety rectification work was undertaken, no productive work took place. The practice was generally agreed to by employers. Accordingly, employees had been paid whilst the process was undertaken. 15 Mr Kingham then outlined the history which gave rise to this practice. In 1999 there were 15 deaths in the industry. In order to draw the attention of the Victorian government to the problem, a 24 hour stoppage would be called in response to a death in the industry. In due course, the government appointed more Worksafe inspectors to redress the problem. Whether as a result of these appointments or otherwise, the number of deaths in the construction industry decreased. This improvement gave rise to discussions in the industry and a change in the practice. Employers were concerned that a full day's production was being lost on the occasion of each fatality. The discussions took place in a forum called the Victorian Building Industry Agreement Consultative Committee which comprised representatives of all the construction unions and construction companies. The employer representatives suggested that the stoppages be limited to the time of the safety audit and completion of the rectification work. Employees were to be paid while these activities were undertaken. The unions accepted this suggestion and an agreement to this effect was made in 2002. It was ratified by all the construction unions through the Building Industry Group organised by the Victorian Trades Hall Council. The practice was followed by most employers thereafter. 16 Mr Kingham then explained that, in view of the proceedings such as the present brought by the ABCC, the deaths in the industry practice was changed two years ago on or about 25 August 2005. The amended policy provided that productive work would continue following a death in the industry whilst safety audits and rectification were undertaken. The change was effected through the Building Industry Group which includes unions covering electrical, plumbing and metal workers. The amendment was notified to the Building Industry Consultative Committee comprising construction unions, major builders, and employer associations. As a result of the amendment to the practice, Mr Kingham believes that there should not be any further proceedings arising out of the deaths in the industry practice. 17 The fourth respondent, who was employed by Multiplex as a carpenter, and the fifth respondent, who was employed as a member of the crane crew, both affirmed affidavits in which they said that they were aware of the deaths in the industry practice and that it involved holding a safety audit following a death on a construction site. Whilst the audit took place, no productive would be done, and the practice in 2003 was that employees would be paid for the unproductive time whilst the safety audit and rectification work were carried out. In relation to the events of 5 and 6 August 2003 the fifth respondent stated: While the safety audit was being conducted I had no reason to suspect that the process was being undertaken in anything other than with the agreement of Multiplex management. This understanding includes that those persons engaged on the Site who were not involved in the safety rectification work or the safety audit and who were sitting in the crib huts on the Site would be paid for the time that they were sitting in the crib huts not performing any productive work. I held this belief because nobody had said to me prior to commencing the safety audit that other employees have to go back to doing productive work otherwise they would not be paid. Secondly, the practice had been at Multiplex when there had been a death in the industry that they would pay for the period that employees weren't working productively while the safety audit and rectification work was taking place. I understood that this was an agreed process in the circumstances of a death in the construction industry. It was not until the completion of the safety audit that Multiplex informed the members of the safety committee and I that they were not going to pay employees for the time they were sitting in the shed while the safety audit was being undertaken. This directive came from Gary Young who was not on the Site at the time but had communicated this directive over the phone. There was a mass meeting held to inform workers on the Site of Multiplex's position. The members at the Site decided that they would not return to work until the issue about payment had been resolved. I did not speak against the position being adopted. 18 The fifth respondent continued: I am aware that the Policy has been amended in August 2005. I am aware that the effect of the change is that after a death in the industry while a safety audit is being undertaken normal productive work will continue. I am aware that the normal practice of holding a site meeting to discuss the circumstances of the death and a collection for the deceased worker's family would continue. I believe that this change in the policy would mean that the circumstances which resulted in this proceeding would not happen again. 19 The evidence of the fourth respondent was to the same effect. 20 None of the deponents - the applicant, Mr Kingham, and the fourth and fifth respondents - was cross-examined. Their evidence stands unchallenged. 21 Mr Maidment SC, who appeared with Mr O'Grady for the applicant, indicated that no penalty was sought against the fourth and fifth respondents but the applicant did seek declarations that each of them had contravened the Act. Penalties and declarations were sought against the Union. When asked by the Court, Mr Maidment said that a total penalty of $5000 against the Union would be appropriate. 22 Mr Maddison, who appeared on behalf of the Union and the fourth and fifth respondents submitted that in the circumstances of the case it was appropriate that the Court impose no penalties on those respondents. 23 The applicant submitted that the contraventions in this case by the Union were serious contraventions of the Act. He drew attention to the policy or purpose of Pt VIIA of the Act, as described by Lander J in Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65 (Caelli (FC))at [83] as follows: The policy of the Act is to discourage industrial action as it is defined in s 4 of the Act. The purpose of Part VIIIA of the Act, in which these provisions are contained, is to prevent an employer making a payment to the employer's employee in relation to any period during which the employee engages in industrial action. It is the intention of the Act to discourage employers and employees agreeing to the employer paying employees for that period of industrial action engaged in by the employee. To that end, s 187AA makes it a contravention for an employer to make a payment to an employee who has in relation to a period during which the employee engaged or engages in industrial action and at the same time makes it a contravention for the employee to accept a payment from an employer if by doing so the employer will contravene subsection (1) by making that payment. The policy of the Act is that if an employee engages in industrial action then it must be at the employee's own expense. The purpose of s 187AB is to discourage unions and their officers from making claims for a payment or engaging in or threatening to engage in or organising industrial action for the purpose of coercing the employer to make a payment to an employee during a period of industrial action. That section has as its added purpose a protection to the employer in the event that a union or its members engage in that further industrial action. 24 In fixing the appropriate penalty, it is necessary for the Court to consider the circumstances in which the conduct occurred: CFMEU v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at [7] to [8]. 25 One circumstance is that the industrial action took place against the background of a fatality in the construction industry. As I said in Ponzio v B & P Caelli Construction Pty Ltd (2006) 157 IR 80; [2006] FCA 1221 (Caelli) when considering where the events involving the admitted contravention fell on the scale of seriousness at [22]: The concern of workers in the industry in ensuring safe workplaces can be readily understood. It is easy to accept that a fatality on a site in the industry, even if not on the site on which a particular worker is engaged, raises immediate feelings of insecurity and threat. … 26 On appeal Lander J said in relation to s 187AB at [114]: The primary judge took into account that industrial action arose out of a fatality in the industry and that fatalities raise immediate feelings of insecurity and threat. The reason for the industrial action is relevant but only for the purpose of understanding the circumstances which gave rise to the actual contravention. The industrial action was not the contravention. The contraventions were the demand for payment and the coercive behaviour. 27 In Caelli (FC),Jessup J considered that it was relevant that the definition of industrial action excluded action based on a reasonable concern about an imminent risk to the health or safety of the worker. His Honour held that by establishing those limitations the legislature must be taken to have turned its mind 'to the question of where the line should be drawn between permissible, and impermissible, health and safety related stoppages': at [142]. Whilst so much may be accepted for the purpose of determining whether a stoppage was industrial action constituting a contravention, this reasoning does not suggest that the Court should not have regard to concerns about health and safety falling short of imminent risk, as part of the background to the contraventions for the purpose of determining what penalty should be imposed. 28 Another consideration to be taken into account on the question of penalty is whether the contraventions were deliberate. The conduct of the fourth and fifth respondents was deliberate in the sense that they intended to make the claims for payment and participated in the stoppages in order to force Multiplex to pay the moneys sought. In this case, the only conduct relied upon was conduct by the fourth and fifth respondents and there is no statement in the agreed facts that they knew that their conduct was in contravention of the law. They were not cross-examined on their affirmations. 29 It is also relevant to consider the scope of the contraventions. The number of payments and the amount of the payments in this case is relatively small. The nine employees were paid a total of $1,057.35. 30 A related issue concerns the number of contraventions involved. In Caelli (FC), Jessup and Lander JJ took different approaches to determining the number of contraventions of the sections under consideration. Jessup J held that a single claim for payment to a number of employees amounted to one contravention of s 187AB(1)(a) and each instance of coercion amounted to one contravention of s 187AB(1)(b) even though it sought to force payment to more than one employee. This approach looks to the facts of each case to determine whether one claim is made for payment to a number of employees or whether a number of claims for payment are made. On the view held by Jessup J there was one contravention of s 187AB(1)(a), namely, making the claim for payment for 50 employees working on one day and 51 employees on the next day. Lander J regarded each claim for payment to each employee as constituting a separate contravention and each instance of coercion directed at forcing each payment as constituting a separate contravention. However, he held that in considering whether to impose a penalty and, if so, the amount of it, the Court should not be confined to a consideration of the number of contraventions but should take into account the number of acts involved. On this view there were 101 claims for payment and hence 101 contraventions of s 187AB(1)(a)(i). In the result, Lander and Jessup JJ agreed on the amount of the penalty. In the present case the statement of agreed facts does not disclose whether one claim was, or more than one claim were, made. However, the admitted contravention seems limited to a single contravention of each of ss 187AB(1)(a) and (b) but, in any event, the circumstances should be so viewed. 31 The applicant submitted that the fact that the claim for payment was directed to Multiplex added a particular dimension of seriousness to the conduct because Multiplex was the head contractor. Whilst it only employed nine people, there were 150 to 200 employees of sub-contractors on site. Forcing compliance by the head contractor, so it was argued, was likely to have a "knock on" effect and thereby influence the response of the sub-contractors. 32 The "knock on" argument is speculative. There is no evidence that the coercion of Multiplex was likely to have had any effect on sub-contractors, and there is no sufficient basis on the facts of this case upon which I would draw that inference. 33 The applicant also urged the Court to impose a penalty at a level which reflected a denunciation of the culture of unlawful conduct in the construction industry. The affidavit of the applicant set out the opinions of the Royal Commissioner, the Task Force, and the ABCC as to the existence of a culture of lack of respect for the law. As I said in Caelli at [20], this material is of limited assistance because the opinions were not expressed in relation to payments made against the background of fatalities in the industry. Despite those comments, the applicant did not point to any part of the Royal Commission report which demonstrated that the opinions related to payments made arising out of industrial action in response to deaths in the industry. Any denunciation by the Court of a culture of unlawful conduct must address the conduct in issue. Thus, if the Court were concerned to denounce a culture of speeding on public highways by groups of larrikins, it would not assist in that purpose to impose a penalty on a young man caught speeding while driving his pregnant wife to hospital for the imminent birth of their child. So it is in this case. Absent evidence that the culture of unlawful conduct described in the Royal Commission reports was connected with payments made for periods of industrial action arising out of deaths in the industry, the Court should not reflect a denunciation of general unlawful conduct in the construction industry when it considers the specific unlawful conduct admitted in this case. 34 The applicant argued that the seriousness of the contravention lay in the coercive nature of the conduct. This element may serve to distinguish the seriousness of a contravention of s 187AB(1)(b) from a contravention of s 187AB(1)(a) although it is noteworthy that in Caelli (FC),Lander J at [116] imposed the same penalty on the Union for contravention of sub-s (a) as for the contravention of sub-s (b), namely, $2,500, and Jessup J at [163] regarded the contraventions of each sub-s (a) and sub-s (b) as of equal seriousness. The issue remains that the penalty provided for coercive conduct in breach of s 187AB(1)(b) ranges from nothing to $10,000, as does the range in penalty for a contravention of s 187AB(1)(a). That there is no minimum penalty indicates that coercive conduct is not regarded as inherently more serious than other conduct in contravention of the Act. Further, the agreed facts do not explain the nature of the coercive conduct. It is to be inferred that the stoppages on 5 and 6 August constituted the coercion. At the higher level of seriousness, s 187AB(1)(b) covers behaviour involving physical threats and harm, damage to property, and work stoppages or interruptions which result in significant losses to owners and builders. There is no evidence of physical threat, damage to property, or loss and damage to others in this case, and consequently the coercive conduct is at the lower end of seriousness. 35 The applicant relied on the judgments in Caelli (FC) to support the contention that the Court should impose a penalty of $5,000 on the Union in this case. The argument had two strands. First, the circumstances in Caelli (FC) were comparable so that the penalty in the present case should reflect parity with the penalty in that case. Second, as the contraventions in Caelli (FC) were regarded by the Court as serious, the same characterisation should be applied in the present case. 36 B & P Caelli Constructions Pty Ltd (Caelli)was a major sub-contractor on the Concept Blue site. Its employees also stopped work together with the Multiplex employees on 5 and 6 August 2003 for the same period as the stoppages in the present case. Caellirefused to pay its employees for the lost time. However, on 25 and 26 August 2003 the Union applied bans on another Caellisite in order to pressure Caellito reverse its decision. In the end Caellimade payments totalling $7,601.23 to 50 employees in relation to the stoppage on 5 August 2003 and payments totalling $3,187.80 to 51 (mostly the same) employees in relation to the stoppage on 6 August 2003. Further, although not the subject of the application, Caelliadmitted making payments totalling $30,954.86 to about 350 employees on other sites for stoppages at the same time. 37 Penalties were sought against Caellifor contravention of s 187AA and against the Union and two officers of the Union for contraventions of ss 187AB(1)(a) and (b). At first instance, the Court declined to impose any penalty on the respondents. On appeal Lander and Jessup JJ imposed a penalty of $6,000 on Caellisubject to the condition that, if Caelliwas not found to have breached any provisions of the Act for the following 12 months, the penalty would not have to be paid, and a penalty of $5,000 on the Union. Their Honours made declarations against all the respondents other than Caelli. At [106] of his reasons, Lander J would have made a declaration relating to Caelli's contravention but ultimately agreed with the orders proposed by Jessup J. Marshall J would have made a declaration in relation to the contravention by Caelliand the officials but not in relation to the Union, and would have imposed the penalty of $2,500 on the Union. 38 There are a number of distinctions between this case and Caelli which call for a more lenient approach to the Union in this application. 39 In the present case, the dispute on 5 and 6 August 2003 was handled by the shop stewards on site. The employees returned to work on 6 August after a visit by the organiser, Mr Setka. He was originally named as the third respondent in this proceeding. The applicant sought and was given leave to discontinue the application against him. The agreed facts do not indicate that the fourth and fifth respondents knew that their actions contravened the Act. 40 In the present case, the conduct was limited to 5 and 6 August 2003. In Caelli, the employees of Caellistopped work at the same times on 5 and 6 August and attended the same meetings which were conducted by the fourth and fifth respondents. Caellihad a practice of not paying for lost time. The contraventions of s 187AB arose from later industrial action on 25 and 26 August 2003 when an organiser imposed bans on another building site in order to force Caellito reverse its decision to refuse payment. The Court found that the Union imposed the bans knowing that to force payment by this means was contrary to law. 41 There was a significantly higher degree of culpability in Caelli than in the present case. Here, the Union acted through shop stewards who were employees of Multiplex on site and who were not aware that their action was unlawful. In Caelli, the Union acted through an employed organiser who knew that his conduct was unlawful. In the present case the conduct was limited to the time immediately following the refusal by Multiplex to follow its usual practice of paying for lost time. The evidence of the fourth and fifth respondents is that they assumed that the employees would be paid for the period of the safety audit because that had been the practice of Multiplex in the past and that they had no reason to suspect that the safety audit was conducted without Multiplex's agreement. The dispute arose because Multiplex departed from its previous practice. The conduct was spontaneous and reactive. In Caelli, the conduct was taken a few weeks later at a different site and the conduct thereby had a degree of calculation, planning and deliberation that is absent in this case. It was taken against a known practice of Caelliof refusing to pay for lost time. 42 Further, there is some, albeit limited, significance in the fact that the Union has already been penalised in relation to the Caelli case. There is some overlap in the circumstances of the two cases. Although technically the Union was penalised for the industrial action taken on 25 and 26 August 2003 in the Caelli case, the circumstances which gave rise to that industrial action were the same circumstances as gave rise to the contraventions in the present case. To the extent that the penalty in Caelli took account of the background events of 5 and 6 August 2003 and those background events were common to the present case, the conduct on those days has been addressed to some degree. 43 Next, it is necessary to consider the need for both individual and general deterrence in fixing a penalty. The need is limited in this case. The Union has amended its policy relating to deaths in the industry so that the productive work will continue whilst a safety audit is undertaken. Consequently, the circumstances which gave rise to the contraventions by the Union in this case are not likely to arise again. 44 The same reasoning applies in relation to general deterrence because the change in union policy was made on an industry wide basis. Mr Kingham described the position as follows: The Deaths in the Industry policy was changed through the Building Industry Group of Unions ('BIG') which is a Trades Hall forum which comprises the Victorian construction unions includes the Electrical Trades Union, the Plumbers Union and the Metal Workers' Union. The issue concerning the ABCC prosecutions was raised at that forum. It was agreed between the unions that the policy would be amended. The amendment was subsequently provided to the Building Industry Consultative Committee ('BICC'). This forum comprises both the construction unions and the major builders and employer associations. The chairman of the BICC is Bob Merriman, a former Commissioner of the Australian Industrial Relations Commission ('AIRC'). Given their adoption of the amended policy, it is unlikely that other unions will contravene s 187AB where there is a death in the construction industry. The need for a penalty to ensure general deterrence is therefore also limited in the present circumstances. 45 It was accepted by the applicant that at the time of the contraventions the Union had not been found to have contravened s 187AB of the Act, although it had been found to have contravened other sections of the Act. 46 All of the considerations discussed in these reasons lead me to the view that the Court should decline to impose a monetary penalty on the Union in the circumstances of this case. Without seeking to limit the importance of any of those considerations it is useful to summarise some of them which highlight the justification for this course as follows: · there was one contravention of s 187AB(1)(a) and one contravention of s 187AB(1)(b) by the Union; · the contraventions relate to a relatively small number of employees, namely nine; · the contraventions relate to a relatively small payment namely, $1,057.35; · the contraventions were by shop stewards employed by Multiplex, who did not know they were acting in contravention of the law; · the contraventions were spontaneous acts taken against a change in the practice of Multiplex which had previously paid for lost time after a death in the industry; · the shop stewards were acting in accordance with the Union policy, which responded to concern in the construction industry for the safety of construction workers. · there was no injury or damage to any parties as a result of the contraventions; · the Union is unlikely to contravene again because the policy has been changed; · other unions are unlikely to contravene because they were party to the change in the policy; · the Union has not contravened the section before; · the Union has been punished for contraventions which at least had a common background with the present contraventions. 47 The applicant urged the Court to make declarations in relation to the contraventions by the Union and the fourth and fifth respondents. Whilst declarations have been made in some of this type of case, only one of those cases, namely, Carr v Higgins Coating Pty Ltd (2005) 148 IR 201; [2005] FCA 1809, examined the basis for making declarations where the proceeding is determined on admissions and agreed facts rather than on findings made by the Court after a contested hearing. In Carr, Gray J refused to make a declaration and said at [21]: It is also important to note that a declaration settles a controversy; it does not simply give effect to an agreement. 48 There is a public interest in recording in a formal way the fact that the law has been contravened. This purpose is achieved by reasons for judgment referring to the agreed facts and the admissions made. A declaration however clothes the outcome with an authority which it does not have. It gives the outcome the appearance of a remedy granted by the Court after a deliberation on the facts and the law. A declaration which reflected the true agreed position would commence "Declaration that on the basis of facts agreed between the parties and the admission by the respondent that it contravened s 187AB(1)(a) by …..". Such a declaration adds nothing to a reference in the reasons for judgment that the contraventions are admitted on the basis of agreed facts which are set out in those reasons. 49 There is a further reason in respect of the fourth and fifth respondents not to make declarations. They are individuals who have not contravened the section before. This is a strong mitigating factor quite apart from the circumstances of the contraventions previously outlined. It is enough, in my view, that their admissions are recorded in the reasons. 50 Before leaving this case it is appropriate to address the conduct of the applicant in bringing this proceeding and 17 other proceedings which were instituted arising out of payments for stoppages on or related to the events of 5 and 6 August 2003 on the Concept Blue site.

Was the decision to prosecute or continue the prosecution warranted 51 In relation to four of these cases which I have heard, the question was raised at the early stages of the proceedings whether there was sufficient public interest in the circumstances to justify the continuation of the proceedings. In response the parties collaborated and, in each case, agreed on a statement of facts to be presented to the Court. Whilst this was a constructive response, and partly addressed the questions of cost and time taken by the litigation, the question remains whether the proceedings should have been brought at all, or whether they should have been continued to the end. 52 In the second of the 18 cases to be heard, Finkelstein J said on 29 April 2005, in Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500 (Seelite) at [3]: In Australia prosecuting authorities have prosecutorial guidelines which deal with, among other things, the matters to be taken into account when deciding whether to initiate a prosecution. Two major factors are considered: the sufficiency of the evidence and whether the public interest requires that a prosecution be pursed. The guidelines list a number of factors that should be taken into account when evaluating the public interest. They include: the seriousness or triviality of the alleged offence; whether the prosecution would be perceived as counter-productive, for example by bringing the law into disrepute; the degree that the offence is of public concern; the likely sentencing result; the necessity of maintaining public confidence in the courts; and the offender's degree of culpability. There is no reason why these factors should be confined to the institution of criminal prosecutions; they have equal applicability to contraventions of quasi-criminal statutes such as the Workplace Relations Act 1996 (Cth). 53 In response to the concern of the Court concerning the justification for pursuing these cases, the applicant in this case explained in his affidavit that the purpose for taking action was to combat the culture of unlawful conduct in the construction industry identified by the Royal Commission. 54 The Royal Commission painted a picture of widespread violence, intimidation and disregard for the law in the construction industry. Despite the reference by the Royal Commission to a great deal of evidence of paying, receiving and demanding strike pay, there was no evidence before the Court that the payment of strike pay in respect of industrial action taken where a fellow worker had been killed on a construction site was the type of unlawful conduct which concerned the Royal Commission. Instead, the 18 prosecutions, all dealing with the events of 5 and 6 August 2003 and a related incident, targeted behaviour which, even though unlawful, flowed from a concern with safety in the workplace in a dangerous industry, which arose from a departure from what had been an accepted industry practice for years, and which caused no damage to others. Against the background of the culture of violence and intimidation reported by the Royal Commission, it may be that proceeding against persons for conduct which did not have those elements could, in the words of Finkelstein J in Seelite at [3], "be perceived as counter-productive … by bringing the law into disrepute". 55 The union policy was changed in August 2005. Prior to that time six out of the 18 cases had been determined, including Seelite, in which Finkelstein J had indicated that the guidelines for prosecution should be applied in these cases. The change in policy meant that the circumstances to which the applications were directed would probably not arise again. At that point the public interest in enforcing lawful behaviour had been achieved. It is difficult to see what purpose was served by continuing the applications thereafter. 56 Further, the six cases decided prior to the policy change provided modest outcomes to the applicant. In three of the six cases decided before the policy change no monetary penalty was imposed, and in the other three cases the monetary penalty was insignificant. The sentencing outcomes referred to in Seelite, should have persuaded the applicant to bring the litigation to an end. 57 Despite these factors, 11 further applications were pressed. In the result in five of them no monetary penalty was imposed. In two others, the penalty imposed (one by agreement) was $1000 or below. These limited outcomes suggest that the time and expense involved in continuing the proceedings was not justified. The public purse funded the legal expenses of the applicants. Each of the 18 cases, including this case, required a day of Court time and probably, on average, an equal amount of time for the preparation of judgments, thereby requiring in total nearly 2 months of Court time. It is unlikely that the public would regard such cost to the community as well incurred. 58 These remarks relating to the conduct of the applicant play no part in the determination of the application before the Court. They are made with a considerable degree of caution. The decision whether to bring such proceedings is not a matter for the Court but for the prosecuting authority: Seelite at [3]. However, there are some circumstances in which the Court becomes aware of the conduct of parties to litigation which, although not directly relevant to the determination of the proceedings, should be the subject of some observation because of the particular vantage point which the Court has as a result of hearing the proceedings. The circumstances of this case fall within that category. 59 A serious impediment to the Court forming an informed view about such circumstances is that the conduct of the prosecuting authority is not the subject of evidence and the usual requirements of natural justice which would apply in the determination of an issue before the Court. With this handicap in mind, the applicant was invited at the end of this proceeding to respond to the criticisms which now have been set out in the previous paragraphs. Mr Maidment took instructions and responded by submitting, in effect, that the Court had no role in addressing the issue beyond the circumstances of the present case. Whilst the occasions when it will be appropriate for the Court to make such observations will be rare, the circumstances of these 18 proceedings call for some comment in the public interest.

Conclusion 60 The application will be dismissed. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Counsel for the Applicant: Mr R Maidment SC with Mr P O'Grady

Solicitor for the Applicant: Australian Government Solicitor

Appearing for the Respondent: Mr J Maddison on behalf of Construction, Forestry, Mining and Energy Union