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[2010] FCA 1382
Federal Court of Australia
2010-12-10
Respondents Mr J, Flick J
Original judgment source is linked above.
Counsel for the Applicant: Mr I Neil SC with Mr E Young
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 436 of 2010
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH)
JUDGE: FLICK J DATE OF ORDER: 10 December 2010 WHERE MADE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 436 of 2010
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH)
JUDGE: FLICK J DATE: 10 december 2010 PLACE: SYDNEY
REASONS FOR JUDGMENT 1 The matter now before the Court is the making of appropriate orders to give effect to conclusions previously reached in Darlaston v Parker [2010] FCA 771. 2 The Applicant was there successful in establishing a number of contraventions of the Workplace Relations Act 1996 (Cth) ("Workplace Relations Act"). Other contraventions were found not to have been made out. In summary form, the conclusions reached were as follows: Messrs Parker, Hanlon and Kera contravened s 758(3) by failing to undergo the safety induction as requested on 3 December 2008; Mr Mitchell contravened s 758(3) by failing to come down from the scaffolding when requested on 3 December 2008; Mr Parker on 3 December 2008 contravened s 767(1) by both hindering and obstructing Lend Lease, Upgrade Carpentry Pty Ltd ("Upgrade"), Sydney Plasterers and Painters Pty Ltd ("SPP"), and each of the carpenters and renderers by making the statements he did to persons on site; Mr Parker on 4 December 2008 contravened s 758(3) by failing to move the vehicles when requested but he did not also contravene s 767(1) by reason of that conduct; Mr Mitchell on 4 December 2008, by driving at the gate behind which Mr Tsitsios was standing, contravened s 767(1) by acting "in an improper manner"; Messrs Parker, Hanlon, Kera and Mitchell did not seek entry for the improper purpose alleged and did not thereby contravene s 767(1); and both the Fifth and Sixth Respondents also assume liability for such contraventions as have been established as against the individual Respondents by operation of s 826(2) of the Workplace Relations Act. The facts and circumstances relevant to each of those conclusions need not now be presently repeated, except in very summary form. Those facts arose out of events that occurred on 3 and 4 December 2008 when the First, Second, Third and Fourth Respondents attended a building site in Manly, a suburb of Sydney. A building project was there being undertaken by way of a joint venture between Lend Lease Development Pty Limited ("Lend Lease") and the Roman Catholic Church for the Archdiocese of Sydney. 3 Brief reference should, however, now be made to some of the principles relevant to the grant of the relief sought by the Applicant.
Penalties 4 Section 769 of the Workplace Relations Act relevantly provides as follows: Penalties etc for contravention of civil remedy provisions (1) The Court, on application by an eligible person, may make one or more of the following orders in relation to a person (the defendant) who has contravened a civil remedy provision of this Part: (a) an order imposing a pecuniary penalty on the defendant; (b) … (c) any other order that the Court considers appropriate. (2) The maximum pecuniary penalty under paragraph (1)(a) is 300 penalty units if the defendant is a body corporate and otherwise 60 penalty units. The term "penalty unit" is given the same meaning and value in the Workplace Relations Act as it is under the Crimes Act 1914 (Cth) - which is $110. Converted to dollar terms, the maximum penalty that can be imposed upon an individual in the present proceeding for each contravention is $6,600 and the maximum penalty that may be imposed upon a body corporate is $33,000. 5 Section 769(1) clearly confers a discretionary power upon the Court - the "Court … may make one or more of the following orders …". The matters to be taken into account when exercising that discretion have been repeatedly canvassed - both in the context of the legislation relevant to this proceeding and other comparable legislative regimes. 6 When imposing a penalty for contraventions of Part XA of the Workplace Relations Act pursuant to s 298U in Construction, Forestry, Mining & Energy Union v Coal and Allied Operations Pty Ltd (No 2) [1999] FCA 1714, 94 IR 231 ("Coal and Allied"), Branson J made the following observations as to some of the considerations to be taken into account: [8] The following matters, which are not intended to comprise an exhaustive list, seem to me to be considerations to which the Court may appropriately have regard in determining whether particular conduct calls for the imposition of a penalty, and assuming that it does, the amount of the penalty: (a) The circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act). (b) Whether the respondent has previously been found to have engaged in conduct in contravention of Pt XA of the Act. (c) Where more than one contravention of Pt XA is involved, whether the various contraventions are properly seen as distinct or whether they arise out of the one course of conduct. (d) The consequences of the conduct found to be in contravention of Pt XA of the Act. (e) The need, in the circumstances, for the protection of industrial freedom of association. (f) The need, in the circumstances, for deterrence. These principles have since been applied when assessing penalties under other provisions of the Act: e.g., Standen v Feehan (No 2) [2008] FCA 1574 at [14], 177 IR 276 at 278 to 279 per Lander J. See also: Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union v Thornton Engineering Australia Pty Ltd [2009] FCA 1584 at [21], 191 IR 315 per North J. 7 In the context of considering penalties to be imposed under the Building and Construction Industry Improvement Act 2005 (Cth), Tracey J in Stuart-Mahoney v Construction, Forestry, Mining and Energy Union ("Stuart-Mahoney") [2008] FCA 1426, 177 IR 61 summarised some of the matters that may be taken into account as follows: [40] In my view, potentially relevant and applicable considerations for determining the appropriate penalty for a contravention of the BCII Act include: The nature and extent of the conduct which led to the breaches. The circumstances in which that relevant conduct took place. The nature and extent of any loss or damage sustained as a result of the breaches. Whether there had been similar previous conduct by the respondent. Whether the breaches were properly distinct or arose out of the one course of conduct. The size of the business enterprise involved. Whether or not the breaches were deliberate. Whether senior management was involved in the breaches. Whether the party committing the breach had exhibited contrition. Whether the party committing the breach had taken corrective action. Whether the party committing the breach had cooperated with the enforcement authorities. The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements. The need for specific and general deterrence. See also: Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040 at [9], 189 IR 304 at 308 per Kenny J; Cozadinos v Construction, Forestry, Mining and Energy Union [2010] FCA 48 at [17] per Marshall J; Fair Work Ombudsman v Transport Workers' Union of Australia [2010] FCA 768 at [26] per Besanko J. 8 There is, not surprisingly, a degree of overlap in the exposition of those considerations relevant to the imposition of penalties imposed under like legislation. No exposition, however, remains an exhaustive list of considerations. And no statement should itself be mechanically applied in substitution for a proper exercise of the discretion conferred by reference to the facts and circumstances of each particular case and by reference to the objects and purposes of the particular statute being applied. The caution expressed as follows by Gyles J in A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union ("A & L Silvestri Pty Limited") [2008] FCA 466, 60 AILR 100-853 is well heeded, namely: [6] A number of authorities discuss the factors to be taken into account in fixing a penalty, many of them borrowing from related fields, including the criminal law. It is sufficient to refer to the recent case of Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 as an example. However, the discretion is at large. There are no mandatory statutory criteria and it is wrong to regard factors seen as relevant by one court as statutory criteria. Indeed, lists of factors can confuse an essentially straightforward task and lead to over-elaborate reasoning. A "checklist" of factors to be taken into account when exercising the discretion, it has been said, may be "useful, providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations": Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith ("Australian Ophthalmic Supplies") [2008] FCAFC 8 at [91], 165 FCR 560 at 580 per Buchanan J. See also: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652 at [34] per Logan J. 9 An interesting analysis of the quantum of pecuniary penalties (for example) imposed under the Corporations Act 2001 (Cth), it may be noted, has been prepared by Michelle Welsh, "Civil Penalty Orders: Assessing the Appropriate Length and Quantum of Disqualification and Pecuniary Penalty Orders" (2008) 31 Australian Bar Review 96 at 113 to 125. 10 In the present proceeding, a number of the factors relevant to the exercise of the discretionary power to impose a penalty received more detailed attention than others in the oral and written submissions of the parties, namely: whether the contraventions are but part of a single course of conduct; the "totality principle"; whether the quantum of such penalties as are imposed is "just and appropriate"; and the relevance of "previous conduct" or previous contraventions by one or other of the Respondents.
A Single Course of Conduct 11 The relevance of whether conduct constitutes a "single course of conduct" or whether particular contraventions amount to quite separate and discrete courses of conduct is that it is generally recognised that a person should not be punished more than once for the same act. 12 Thus, for example, in Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171, 191 IR 445, the Full Court allowed an appeal where the primary judge had initially concluded that there had been a number of offences contrary to s 43 of the Building and Construction Industry Improvement Act 2005 (Cth). Moore, Middleton and Gordon JJ concluded that the "trial judge did not take into account the fact that the two contraventions were properly seen as a single course of conduct". It was concluded that "[a]s a result the sentencing discretion miscarried and the sentences imposed at trial must be set aside": at [26]. In reaching this conclusion their Honours said: [25] The respondent chose to proceed against both Mr Mates and the Union on the basis that Mr Mates' conduct involved separate contraventions of s 43 and, on the evidence, was able to establish that it had. However, when assessing the criminality of Mr Mates [sic] coercive conduct for the purposes of imposing penalties it was, in truth, a continuum of acts intended to induce the builder to employ the labourer with duties relating to occupational health and safety. In our opinion, the primary judge erred in the way he approached the question of whether there was a single course of conduct. The conduct of Mr Mates in both inducing the stoppage and in making the threat was a course of criminal conduct which should be treated as one act of contravening conduct even though, strictly, it resulted in a finding that there had been two contraventions of s 43. A similar approach was followed by Cooper J in Hamberger v Construction, Forestry, Mining and Energy Union [2002] FCA 585 in relation to conduct on 2 days almost a month apart. Their Honours ultimately concluded as follows: [31] In the present case, it is appropriate to take the single course of conduct into account by imposing separate fines for the two offences which when aggregated would represent a single penalty appropriate to punish the single course of conduct concerned. Fixing an amount of fines that when taken together represent a single penalty appropriate to punish the one course of continuing conduct begins from the premise that the maximum penalty for all of the contravening conduct that comprises a single transaction, but constitutes two separate offences, is to be treated, in effect, as $110,000 for the Union and $22,000 for Mr Mates: compare Mornington at [18] per Gyles J and at [47]-[49] per Stone and Buchanan JJ.
The Totality Principle 13 A separate principle which also received specific attention in both the oral and written submissions of the parties was what was characterised as "the totality principle". The objective sought to be achieved by the principle is to ensure that an appropriate overall penalty is imposed and to ensure that the sum of individual penalties does not exceed what is proper having regard to the totality of the contravening conduct. 14 Where penalties are being imposed for a number of related contraventions, it is necessary to ensure that the penalties in aggregate are "just and appropriate" to the circumstances of each individual case: Cahill at [75] per Kenny J. 15 But, and as noted by Buchanan J in Australian Ophthalmic Supplies at [95] to [97], there has been some discussion - if not division - as to the manner in which this principle is to be applied. 16 As there noted by Buchanan J, one view is that which was expressed by Finkelstein J in Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 1364, 108 IR 228. Finkelstein J there referred to sentencing principles in criminal cases and continued to say: [7] … On the other hand, when the penalty is only pecuniary, the ability to manipulate individual sentences is not available. Thus it will be necessary to resolve upon the appropriate total penalty, dividing that penalty by the number of individual contraventions and record that amount as the penalty for each contravention, whether or not the sum produced might be regarded as an inappropriate individual penalty. A different approach, however, was expressed by Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 ("Australian Safeway Stores") at 53 where His Honour said: The totality principle is designed to ensure that overall an appropriate sentence or penalty is appropriate and that the sum of the penalties imposed for several contraventions does not result in the total of the penalties exceeding what is proper having regard to the totality of the contravening conduct involved: McDonald v R (1994) 48 FCR 555; 120 ALR 629. But that does not mean that a court should commence by determining an overall penalty and then dividing it among the various contraventions. Rather the totality principle involves a final overall consideration of the sum of the penalties determined. In Mill v R (1988) 166 CLR 59; 83 ALR 1 the High Court accepted the following statement as correctly describing the totality principle: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong"; "when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences". As Spender J pointed out in McDonald v R at FCR 556; ALR 631: Implicit in that statement is that the sentence for each offence should be "properly calculated in relation to the offence for which it is imposed". It is explicit in this statement that a sentencer or penalty fixer must, as an initial step, impose a penalty appropriate for each contravention and then as a check, at the end of the process, consider whether the aggregate is appropriate for the total contravening conduct involved: McDonald v R at FCR 563, per Burchett and Higgins JJ. 17 In Australian Ophthalmic Supplies, Gray J (at [23]) and Buchanan J (at [71]) applied the approach of Goldberg J. It is thus respectfully considered that that is the approach to be now applied. It is an approach which is manifestly correct.
A Single Course of Conduct and the Totality Principle 18 These two principles, though related, serve different ends and are quite separate in their application. 19 In Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70, 168 FCR 383, Stone and Buchanan JJ thus referred to the need to consider whether conduct is but a "continuing breach or a course of conduct", the need to consider the "totality principle", and the need to distinguish between the two principles as follows: [41] In some circumstances a statute may direct the way in which a continuing breach or a course of conduct is to be penalised. … [42] For the purpose of the present discussion, the general principle which appears to be relied upon by the appellant may be accepted, although it is important to distinguish it from the application of the totality principle which is a final check to be applied to ensure that a final, total or aggregate, penalty is not unjust or out of proportion to the circumstances of the case. Their Honours there went on to refer to Mill v R (1988) 166 CLR 59 at 62 to 63 and, in particular, the passage extracted by Goldberg J in Australian Safeway Stores. With reference to the facts before them, their Honours then said: [46] The distinction is an important one to make in the present case because of the possibility that confusion arose concerning whether the six separate offences admitted in relation to Ms Thompson should be treated as overlapping offences in the first instance or whether any consequence of the fact that they might be treated as separate contraventions should await the application of the totality principle at the end of the case.
Previous Contraventions 20 The last of the matters which received more detailed attention in the submissions of the parties to the present proceeding was the relevance of previous contraventions. As a general proposition, antecedent offences are relevant to an exercise of power to impose a penalty for a current offence or contravention. But prior offences should not be given such weight as to lead to the imposition of a penalty which is disproportionate to the current offence. To impose such a disproportionate penalty would be to impose a "fresh penalty" for prior conduct: cf. Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ. Antecedent criminal history, it was there said, was relevant to show whether the current offence under consideration was an "uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law". 21 The Respondents thus accepted that previous contraventions could be of relevance when assessing the penalties to be imposed in the present proceeding - but sought to confine the contraventions that could be taken into account to contraventions of the same character to those the subject of the present dispute. 22 In doing so, reliance was placed upon Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317, 164 IR 375 and the endorsement in that decision of the earlier observations of Branson J in Coal and Allied. In Leighton Contractors, Le Miere J observed: [66] The Commissioner tendered a schedule of the "relevant prior records of the first and third defendants" and submitted that they are serious and substantial. [67] In relation to the first defendant, the schedule refers to eight proceedings against the first defendant between 2000 and 2006. The contraventions established in those proceedings are of a different nature than the contraventions now being considered and did not involve contraventions of the Act. In Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at 232 Branson J listed a number of matters that are relevant to penalty in relation to contraventions under Pt XA of the WR Act. One matter her Honour considered was whether the respondent had previously been found to have engaged in conduct in contravention of Pt XA of that Act. In my view, that is the correct approach. It is not appropriate to consider all contraventions of any industrial legislation by any Branch of the first defendant anywhere in Australia. The first defendant is a very large organisation that operates throughout Australia. Branches, Divisions, officers and representatives of the first defendant are involved in dealings with employers in relation to industrial matters every day. It is inappropriate to take account of conduct of the first defendant through various Branches, Divisions and officers or representatives that is of a different character than the contravening conduct in question and are contraventions of different legislation. In those circumstances and having regard to the difference in nature between the contraventions in this case and the matters giving rise to the proceedings referred to by the Commissioner, those other offences should not be given the weight given to them by the Commissioner. 23 This approach has, in turn, been applied by Tracey J in Stuart-Mahoney. His Honour there observed: Similar previous conduct [44] This consideration is derived from the decision of Branson J in Coal & Allied Operations. In the present case, the applicant invites the Court to have regard to previous contraventions by the CFMEU of the WR Act in determining the appropriate penalty for the CFMEU's contraventions of the BCII Act. Similar previous conduct demonstrates that the respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions. Conduct which is of a different character does not assist this assessment see: Leighton Contractors Pty Ltd v Constructions, Forestry, Mining and Energy Union (2006) 164 IR 375 at [67]. Similar conduct which has been found to contravene other legislative provisions will have potential relevance. In this case, any previous contraventions of the provisions of Pt 9 of the WR Act which relate to unlawful industrial action and coercion are relevant in determining the appropriate penalty. His Honour, it will be noted, there referred to the "potential relevance" of "similar conduct which has been found to contravene other legislative provisions". See also: Cahill at [39] to [40] per Kenny J. 24 In A & L Silvestri Pty Limited, Gyles J expressed perhaps a more expansive view as to the potential relevance of other unlawful conduct. Referring to a great many previous decisions, His Honour thus concluded: [13] A number of findings involving unlawful behaviour by officials related to the CFMEU have been made in recent years, in addition to the other case involving Lane (eg Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No 2) [1999] FCA 1714, (1999) 94 1R 231; Construction, Forestry, Mining & Energy Union v Hamberger (2003) 127 FCR 309; Alfred v Walter Construction Group Ltd [2005] FCA 497; Martino v Construction, Forestry, Mining and Energy Union, Magistrates Court of Victoria (Industrial Division), 10 May 2006; Alfred v Construction, Forestry, Mining and Energy Union, District Court of New South Wales, 3 March 2004; Hadgkiss v Blevin [2004] FCA 697; [2004] FCA 917; Hadgkiss v Construction, Forestry, Mining and Energy Union [2007] FCA 524; (2007) 162 IR 385; Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730; (2007) ATPR 42-140; Cruse v Multiplex Ltd [2007] FCA 2015; Cruse v Construction, Forestry, Mining and Energy Union [2007] FMCA 1873; and Alfred v Lanscar [2007] FCA 1001; (2007) 167 IR 320). Counsel for the CFMEU submits that only building industry cases are relevant, and then only those that involve the relevant divisional branch (the New South Wales Construction and General Divisional Branch), bearing in mind that the Union is an amalgamated federation (Re Election for Office in the Construction, Forestry, Mining and Energy Union; Ex parte Sutton [2002] FCA 971; (2002) 115 IR 345 at [23]). I agree that the classes of case identified are the most relevant, but I do not agree that the other cases are irrelevant. Ultimately, union officials will act in accordance with the policies of the union. An official of one geographic or industry branch will observe the manner in which policies are applied by the federal body in relation to other branches. These various cases illustrate that the federal body has not been effective in ensuring that officials act in accordance with the law. I note that there is no evidence of offending officials (including Lane) suffering any serious disciplinary penalties. Whether the ambit of the discretion conferred is to be so confined as submitted on behalf of the Respondents, in circumstances where there is no express or implied statutory constraint upon the discretion conferred by s 769(1), may well be doubted. 25 There is no reason in the present proceeding to cast the net of discretionary considerations more broadly than a consideration of prior contraventions of Part 15 of the Workplace Relations Act or other contraventions of a like "character". An assessment of the appropriate penalty, it is concluded, can be properly made even within the boundaries of those constraints.
Declarations 26 There was no dispute as to the power of the Court to grant declaratory relief. 27 But such declaratory relief as was granted, the Respondents correctly contended, should reflect with certainty and precision the final outcome of the proceeding: Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65, 185 FCR 308 at [89] per Besanko and Gordon JJ.
The First Respondent 28 The First Respondent, Mr Parker, held at all material times and still holds the position of Construction and General NSW Divisional Branch Assistant Secretary of the Fifth Respondent and Assistant Secretary of the Sixth Respondent. 29 It has been concluded that Mr Parker contravened: s 758(3) by failing to undergo a safety induction on 3 December 2008; s 767(1) by both hindering and obstructing Lend Lease, Upgrade, SPP and carpenters and renderers on site after having entered the site on 3 December 2008; and s 758(3) by failing to move motor vehicles when requested to do so on 4 December 2008. 30 It may presently be accepted that neither the fact that different statutory provisions were contravened nor the fact that the contraventions occurred on separate but consecutive days necessarily denies the conduct of Mr Parker as constituting a "single course of conduct". 31 But it is concluded that such contraventions as have been established against Mr Parker do not constitute a "single course of conduct". The nature and character of the contravention arising out of the failure to undergo a safety induction is different from the conduct involved in hindering or obstructing those on site. The failure to undergo the safety induction occurred at the very outset of the attempt to secure entry to the site and the safety induction was directed to bringing the particular issues of safety relevant to the day in question to the attention of those who sought entry. The mere fact that the subsequent conduct of Mr Parker in respect to the workers on site was ostensibly directed to raising with those workers questions as to safety on site, is not sufficient to make these two contraventions part of a "single course of conduct". Having secured entry, Mr Parker thereafter engaged in quite separate conduct in interfering with the work being undertaken by those on site. 32 It is further concluded that a penalty of $3,000 should be imposed in respect to each of the first two contraventions. It is of importance to ensure that the statutory rights of entry that have been conferred are exercised in accordance with law. A failure to comply with requests reasonably made of persons seeking to exercise such rights and failure to comply with steps directed to ensuring their safety once on site are not to be lightly disregarded. 33 The more senior position that Mr Parker occupied and continues to occupy, compared to the positions of Messrs Hanlon and Kera, is a reason why a slightly higher penalty should be imposed in respect to the safety induction contravention. 34 Hindering or obstructing workers on site is a serious matter. And, in imposing a penalty, an objective or purpose to be achieved is the need to fix a penalty which acts as a real deterrent: Standen v Feehan (No 2) at [16]. A contravention of s 285E(1) of the Workplace Relations Act was there made out. Section 285E provided that a person who was exercising powers under ss 285B or 285C "must not intentionally hinder or obstruct any employer or employee". In imposing a penalty of $1,300 Lander J observed in part as follows: [16] I do not think in the case of a contravention of s 285E rehabilitation plays any real part. I think punishment plays some part in the purpose for the imposition of a penalty, but I think it plays a lesser part than aspects of deterrence. In my opinion, the principal reason for the imposition of a penalty in relation to a contravention of s 285E of the Act is deterrence. The purpose of the civil penalty is to deter persons, who have been given a right to enter premises by virtue of ss 285B and 285C, from intentionally hindering or obstructing any other employer or employee. In speaking of deterrence, I am speaking of both general and personal deterrence. The purpose of the penalty is to deter the particular person from further contraventions of the section and to deter other like minded persons who might otherwise commit a contravention of s 285E. Any question as to imposing any lesser penalty than $3,000 in the present proceeding is dispelled when attention is given to the contemptuous manner in which Mr Parker treated the officers of Lend Lease. There was a serious departure on the part of Mr Parker from the standards of behaviour to be expected of those who are clothed with statutory power to enter premises. Even in an industry which has been described as "robust", the conduct of Mr Parker was blatantly unacceptable. There has been no acknowledgment on the part of Mr Parker, given the findings made against him, of the unacceptability of his conduct. The absence of any apology or acceptance of excess of power being exercised before or after findings were made, only reinforces the appropriateness of imposing a penalty of $3,000 which will act as a deterrent to Mr Parker in particular and, more generally, to those who may otherwise engage in like conduct. 35 A penalty of $2,000 should be imposed in respect to the contravention of s 758(3) that occurred on 4 December 2008. Although it was the case that two or three requests had to be made of Mr Parker to remove vehicles from the vicinity of a crane that was about to be dismantled and that it took about half an hour to remove the vehicles, the contravention is considered to be less serious than his other conduct. 36 A personal reference was provided by a director of Everwilling Cranes in respect to Mr Parker. That reference stated that Mr Parker was "a man of fine character with a strong community spirit". That reference has been taken into account when fixing each of the penalties.
The Second Respondent 37 The Second Respondent, Mr Hanlon, was engaged by the Fifth and Sixth Respondents as "an employed organiser" in 2002. Mr Hanlon maintains that position with the Fifth and Sixth Respondents. Prior to September 2002 he was a qualified welder and from 1997 he became qualified to perform a number of tasks in the construction industry by obtaining qualifications known as "tickets". 38 It has been concluded that Mr Hanlon contravened: s 758(3) by failing to undergo a safety induction as requested on 3 December 2008. 39 It is concluded that a penalty in the sum of $2,500 should be imposed in respect to the contravention of s 758(3) for the same reasons as have been expressed in respect to the same conduct of Mr Parker. 40 The events surrounding this particular contravention have been previously set forth: [2010] FCA 771 at [102] to [126]. For present purposes it is sufficient to recount that Messrs Parker, Hanlon and Kera all attended on site at about 8:30 am on 3 December 2008. And it has been concluded that each failed to comply with a request to undergo a safety induction at that time. Although there was a factual dispute as to whether each of these Respondents heard the request being made and the nature of the responses each made to the request, each of these Respondents was found to have contravened s 758(3). There is no reason why a penalty should not be imposed in respect to each Respondent, notwithstanding what may be regarded as the united front they presented to Lend Lease on that morning. And there is no reason in the present proceeding why the aggregate of the penalties imposed should be reduced by reason of that united front. 41 In fixing this penalty in respect to Mr Hanlon, consideration has also been given to two personal references which have been provided on his behalf - one from the Mayor of the City of Blacktown; the other from the State Member for Blacktown, the Hon. Paul Gibson. The Mayor referred to Mr Hanlon's "skills, commitment and professionalism in his capacity as a trade union official". The State Member had been informed as to the contravention of the Workplace Relations Act and was provided with paragraphs [1] to [4] and paragraph [265] of the reasons for decision. He stated that he regarded Mr Hanlon as "a hard working, good natured and honest man with a strong work and family ethic". Notwithstanding the limited material made available for the purpose of preparing personal references, both references have provided some assistance in quantifying the penalty to be imposed. And the quantum of the penalty imposed may have been higher but for the references provided.
The Third Respondent 42 Since 1987, the Third Respondent, Mr Kera, has usually been employed as a builder's labourer. In July 2003 he was engaged by the Fifth and Sixth Respondents as "an employed organiser". Mr Kera has over the years obtained certificates of competencies in aspects of the construction industry and has also completed a number of training sessions and studies in aspects of occupational health and safety. 43 It has been concluded that Mr Kera contravened: s 758(3) by failing to undergo a safety induction as requested on 3 December 2008. 44 It is concluded that a penalty in the sum of $2,500 should be imposed in respect to the contravention of s 758(3) for the same reasons as have been expressed in respect to Mr Parker and Mr Hanlon. 45 In fixing this penalty, consideration has been given to three personal references which have been provided on his behalf - one from a medical practitioner; one from Mr Kera's parish priest; and the other from a director of Rediform Constructions (NSW) Pty Limited. The medical practitioner maintained that Mr Kera was of "good character" and "an asset to the community". The parish priest maintained that Mr Kera was "an admirable person whom I greatly respect". The director maintained that he had "never found his actions either on site or in meetings/conversations to be improper or untoward in any way". Both the parish priest and the director were aware of the fact that Mr Kera had been found to have contravened the Workplace Relations Act but had again only been provided with paragraphs [1] to [4] and paragraph [265] of the previous reasons for decision. The references, however, have again provided some assistance in quantifying the penalty to be imposed. Again, the quantum of the penalty may have been higher but for the references provided.
The Fourth Respondent 46 Since 1973, the Fourth Respondent, Mr Mitchell, has usually been employed in the construction industry as a builder's labourer. It was in 1998 that he was engaged by the Fifth and Sixth Respondents as "an employed organiser". 47 It has been concluded that Mr Mitchell contravened: s 758(3) by failing to come down from scaffolding when requested to do so on 3 December 2008; and s 767(1) by driving his vehicle at the gate behind which Mr Tsitsios was standing and thereby acting "in an improper manner". 48 It is not considered that those two contraventions can be properly characterised as a "single course of conduct". 49 It is concluded that a penalty of $3,000 should be imposed in respect to the contravention of s 758(3). The contravention raised a question as to safety, especially in circumstances where Mr Mitchell had been told that the scaffolding was "in the process of being altered". The quantum of the penalty also takes into account the repeated requests made of Mr Mitchell to come down from the scaffolding and the conclusion already reached that he had no real intention to come down from the scaffolding or to comply with any request that was made of him until he decided he was willing to do so. 50 It is further concluded that a penalty of $4,500 should be imposed in respect to the contravention of s 767(1). That contravention, it is considered, warrants the imposition of such a penalty because of the potential seriousness of the conduct involved. Deliberately driving a vehicle into a gate with "some force" when a person was clearly visible behind it exposes at the very least a lack of any sense of responsibility on Mr Mitchell's part. No apology for the lack of judgment was proffered at the time; nor has there been any subsequent apology or acceptance of responsibility for his conduct. In quantifying this penalty in the sum of $4,500, greater weight has been placed on the aspect of punishment than deterrence. It is to be hoped that there would be few other instances where people behave in such a reckless manner. 51 In fixing the quantum of these penalties, consideration has been given to two personal references provided on Mr Mitchell's behalf - one from a director of The FRP Group Pty Ltd, the other from a director of New Century Renovations Pty Ltd. Both directors, however, were provided with but scant material relevant to the contraventions found to have been made out against Mr Mitchell. They were provided with paragraphs [1] to [4] and paragraph [265] of the previous reasons for decision, being the same paragraphs as were provided to the referees for the other individual Respondents. What they would have said had they been provided with those parts of the judgment which made more detailed adverse findings remains unknown. Given the nature of the conduct engaged in by Mr Mitchell, the views expressed by those who provided the references may have been of greater assistance had they been provided with the more detailed adverse findings. But both personal references have provided some assistance in fixing the penalties.
The Fifth and Sixth Respondents 52 By the operation of s 826(2) of the Workplace Relations Act, the conduct of the First, Second, Third and Fourth Respondents which has been found to contravene the Act is taken for the purposes of the Act to have been engaged in also by the Fifth and Sixth Respondents. 53 There is much to be said for the views expressed by Gyles J in A & L Silvestri Pty Limited at [13] that "union officials will act in accordance with the policies of the union". His Honour's observation is a reminder of the responsibilities that must be assumed by unions for the conduct of their officers. 54 But for a consideration of the "totality principle", it would have been concluded that a penalty of $30,000 should be imposed in respect to both the Fifth and Sixth Respondents. 55 It has previously been concluded that: Messrs Parker, Hanlon, Kera and Mitchell when seeking entry to the Manly site did not seek to draw any distinction between whether it was the State right of entry or the Federal right of entry which was sought to be exercised: [2010] FCA 771 at [235]; and both the Fifth and Sixth Respondents assumed liability for the conduct of Messrs Parker, Hanlon, Kera and Mitchell: [2010] FCA 771 at [237] and [265]. 56 But a penalty of $30,000 imposed in respect to both the Fifth and Sixth Respondents, it is considered, would not be "just and appropriate". A total penalty of $60,000 would have been excessive, as too would a penalty of either $40,000 or $50,000. In such circumstances it is considered that a penalty of $15,000 should be imposed on each of these Respondents. That is a quantum which justly serves both the objectives of punishment and deterrence and which justly attributes to each of these corporate Respondents the responsibility that each must bear for the conduct of Messrs Parker, Hanlon, Kera and Mitchell. 57 It is also a penalty which has taken into account the steps taken within the organisations to conduct internal training sessions which address what was described as "rights under the Act". Although there was little detail as to the content of such training sessions or the manner in which they were actually conducted, a manual had been prepared from at least 2006 which was titled "Right of Entry Training for Officials". That manual contained a summary of some relevant statutory provisions and set a series of sample tasks to be undertaken by those attending the training sessions. A powerpoint had also been prepared on the topic of "Right of Entry". 58 Consideration has also been given to the need for unions to take responsibility for those who exercise statutory power within the scope of their employment and the need to fix an amount which brings home the importance of ensuring that those who exercise such power do so in accordance with law.
Conclusions 59 The penalties mentioned have been assessed by reference to those considerations which have been repeatedly cited in decisions such as Coal and Allied and Stuart-Mahoney. 60 One general consideration taken into account when assessing these penalties was the fact that the facts and circumstances surrounding each allegation were fiercely contested. In making that observation, it may be accepted that a respondent need not accept all or any of the allegations which may be advanced against him; there is a right to have liability judicially determined. It may also be accepted, however, that a factor relevant to the exercise of discretion in the calculation of penalties (being a factor that may well operate to reduce a penalty that may otherwise have been imposed) is the extent to which a respondent cooperates with those who seek to enforce the law. 61 It is thus concluded that penalties should be imposed as against: the First Respondent, totalling $8,000; the Second Respondent in the sum of $2,500; the Third Respondent in the sum of $2,500; the Fourth Respondent, totalling $7,500; the Fifth Respondent in the sum of $15,000; and the Sixth Respondent in the sum of $15,000. Pursuant to s 841(a), those penalties are to be paid to the Commonwealth. 62 For the purposes of the present hearing as to the relief to be granted to the Applicant there was prepared a table of contraventions and penalties imposed in other cases. The penalties to be imposed in the present hearing have been reviewed in light of the table. It is concluded that the penalties to be imposed are amounts which effect an appropriate balance of all the considerations to be taken into account, including punishment and deterrence. 63 Although consideration has also been given to the litany of cases set forth in that table as examples of other proceedings involving branches and divisions of the Construction, Forestry, Mining and Energy Union, the contraventions there involved were substantively different to the present contraventions. Those other cases have provided but limited assistance as to the quantum of penalties to be now imposed. The penalties imposed in the present case have been assessed by reference to the facts and circumstances of the current contraventions. 64 It is further concluded that the Applicant is entitled to declaratory relief.
ORDERS 65 The Court declares that: 1. The First, Second, Third, Fifth and Sixth Respondents contravened s 758(3) of the Workplace Relations Act 1996 (the Act) in that on 3 December 2008: (a) Lend Lease Development Pty Ltd (Lend Lease) was the occupier of at least so much of the premises at St Patricks Estate, Manly, New South Wales (the Premises) as relates to the facts of the present proceeding, within the meaning of s 758(3) of the Act. (b) The First Respondent was an officer and employee of the Fifth and Sixth Respondents within the meaning of s 826 of the Act. (c) The Second Respondent was an employee of the Fifth and Sixth Respondents within the meaning of s 826 of the Act. (d) The Third Respondent was an employee of the Fifth Respondent within the meaning of s 826 of the Act and a "member" of the Sixth Respondent. (e) The First, Second and Third Respondents were permit holders for the purposes of s 758(3) of the Act. (f) The First, Second and Third Respondents entered, and remained on, the Premises under an OHS law within the meaning of s 758(3) of the Act. (g) Before the First, Second and Third Respondents entered, and remained on, the Premises (as aforesaid) an employee of Lend Lease requested the First, Second and Third Respondents to comply with a requirement to undertake a site induction (the Induction Request). (h) The Induction Request was an occupational health and safety requirement that applied to the Premises within the meaning of s 758(3)(a) of the Act. (i) The Induction Request was a reasonable request within the meaning of s 758(3)(b) of the Act. (j) The First, Second and Third Respondents failed to comply with the Induction Request within the meaning of s 758(3)(c) of the Act. (k) The conduct of the First, Second and Third Respondents set out in (f) and (j) was conduct engaged in on behalf of the Fifth and Sixth Respondents within the scope of the First, Second and Third Respondents' apparent authority. (l) By the operation of s 826(2) of the Act the said conduct of the First, Second and Third Respondents is taken for the purposes of the Act to have been engaged in also by the Fifth and Sixth Respondents. 2. The Fourth, Fifth and Sixth Respondents contravened s 758(3) of the Act in that on 3 December 2008: (a) Lend Lease was the occupier of at least so much of the Premises as relates to the facts of the present proceeding, within the meaning of s 758(3) of the Act. (b) The Fourth Respondent was an employee of the Fifth and Sixth Respondents within the meaning of s 826 of the Act. (c) The Fourth Respondent was a permit holder for the purposes of s 758(3) of the Act. (d) The Fourth Respondent entered the Premises under an OHS law within the meaning of s 758(3) of the Act. (e) While the Fourth Respondent was on the Premises (as aforesaid) an employee of Lend Lease requested the Fourth Respondent to comply with a requirement to stop climbing or walking on, or otherwise using, scaffolding on the exterior of House 12 on the Premises (the Scaffolding Requests). (f) The Scaffolding Requests were requests to comply with an occupational health and safety requirement that applied to the Premises within the meaning of s 758(3)(a) of the Act. (g) The Scaffolding Requests were reasonable requests within the meaning of s 758(3)(b) of the Act. (h) The Fourth Respondent failed to comply with the Scaffolding Requests within the meaning of s 758(3)(c) of the Act. (i) The conduct of the Fourth Respondent set out in (d) and (h) was conduct engaged in on behalf of the Fifth and Sixth Respondents within the scope of the Fourth Respondent's apparent authority. (j) By the operation of s 826(2) of the Act the said conduct of the Fourth Respondent is taken for the purposes of the Act to have been engaged in also by the Fifth and Sixth Respondents. 3. The First, Fifth and Sixth Respondents contravened s 767(1) of the Act in that on 3 December 2008: (a) The First Respondent was an officer and employee of the Fifth and Sixth Respondents within the meaning of s 826 of the Act. (b) The First Respondent was a permit holder for the purposes of s 767(1) of the Act. (c) While seeking to exercise rights under an OHS law in accordance with s 756 of the Act the First Respondent intentionally hindered and obstructed Lend Lease, Upgrade Carpentry Pty Ltd (Upgrade), Sydney Plasterers and Painters Pty Ltd (SPP), and certain of the carpenters and renderers employed or engaged by Upgrade and SPP by inducing the carpenters and renderers on site to stop work and leave the Premises. (d) The conduct of the First Respondent set out in (c) was conduct engaged in on behalf of the Fifth and Sixth Respondents within the scope of the First Respondent's apparent authority. (e) By the operation of s 826(2) of the Act the said conduct of the First Respondent is taken for the purposes of the Act to have been engaged in also by the Fifth and Sixth Respondents. 4. The First, Fifth and Sixth Respondents contravened s 758(3) of the Act in that on 4 December 2008: (a) Lend Lease was the occupier of at least so much of the Premises as relates to the facts of the present proceeding, within the meaning of s 758(3) of the Act. (b) The First Respondent was an officer and employee of the Fifth and Sixth Respondents within the meaning of s 826 of the Act. (c) The First Respondent was a permit holder for the purposes of s 758(3) of the Act. (d) The First Respondent entered the Premises under an OHS law within the meaning of s 758(3) of the Act. (e) While the First Respondent was on the Premises (as aforesaid) an employee of Lend Lease requested the First Respondent to comply with a requirement to move two vehicles that were parked in the vicinity of a crane that was being or being prepared to be dismantled (the Crane Request). (f) The Crane Request was an occupational health and safety requirement that applied to the Premises within the meaning of s 758(3)(a) of the Act. (g) The Crane Request was a reasonable request within the meaning of s 758(3)(b) of the Act. (h) The First Respondent failed to comply with the Crane Request within the meaning of s 758(3)(c) of the Act for a period of approximately 30 minutes. (i) The conduct of the First Respondent set out in (d) and (h) was conduct engaged in on behalf of the Fifth and Sixth Respondents within the scope of the First Respondent's apparent authority. (j) By the operation of s 826(2) of the Act the said conduct of the First Respondent is taken for the purposes of the Act to have been engaged in also by the Fifth and Sixth Respondents. 5. The Fourth, Fifth and Sixth Respondents contravened s 767(1) of the Act in that on 4 December 2008: (a) The Fourth Respondent was an employee of the Fifth and Sixth Respondents within the meaning of s 826 of the Act. (b) The Fourth Respondent was a permit holder for the purposes of s 767(1) of the Act. (c) While seeking to exercise rights under an OHS law in accordance with s 756 of the Act, the Fourth Respondent intentionally acted in an improper manner by driving a vehicle into a gate behind which stood an employee of Bovis Lend Lease Pty Ltd who was seconded to Lend Lease to work at the Premises. (d) The conduct of the Fourth Respondent set out in (c) was conduct engaged in on behalf of the Fifth and Sixth Respondents within the scope of the Fourth Respondent's apparent authority. (e) By the operation of s 826(2) of the Act the said conduct of the Fourth Respondent is taken for the purposes of the Act to have been engaged in also by the Fifth and Sixth Respondents 66 And the Court further orders that: 6. A penalty of $3,000 is imposed on the First Respondent for the contravention of s 758(3) of the Workplace Relations Act 1996 (Cth) that occurred on 3 December 2008. 7. A penalty of $3,000 is imposed on the First Respondent for the contravention of s 767(1) of the Workplace Relations Act 1996 (Cth) that occurred on 3 December 2008. 8. A penalty of $2,000 is imposed on the First Respondent for the contravention of s 758(3) of the Workplace Relations Act 1996 (Cth) that occurred on 4 December 2008. 9. A penalty of $2,500 is imposed on the Second Respondent for the contravention of s 758(3) of the Workplace Relations Act 1996 (Cth) that occurred on 3 December 2008. 10. A penalty of $2,500 is imposed on the Third Respondent for the contravention of s 758(3) of the Workplace Relations Act 1996 (Cth) that occurred on 3 December 2008. 11. A penalty of $3,000 is imposed on the Fourth Respondent for the contravention of s 758(3) of the Workplace Relations Act 1996 (Cth) that occurred on 3 December 2008. 12. A penalty of $4,500 is imposed on the Fourth Respondent for the contravention of s 767(1) of the Workplace Relations Act 1996 (Cth) that occurred on 4 December 2008. 13. A penalty of $15,000 is imposed on the Fifth Respondent. 14. A penalty of $15,000 is imposed on the Sixth Respondent. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.
Darlaston
Parker
[2009] FCA 1584
[2010] FMCA 462
[2006] WASC 317
[2007] FMCA 1873
(1997) 145 ALR 36
(1988) 166 CLR 59
(1988) 164 CLR 465
(2007) 166 IR 14
(1994) 48 FCR 555
(1999) 94 IR 231
(2006) 164 IR 375
(2003) 127 FCR 309
(2007) 162 IR 385
(2007) 158 FCR 543
(2007) 167 IR 320
(2002) 115 IR 345