//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2015] FCA 1213
Federal Court of Australia
2015-11-11
Commission J, Tracey J
Original judgment source is linked above.
nn Pty Ltd v Jordan (2008) 168 FCR 383 - cited Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 - cited Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 - cited Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 - cited Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61 - cited Veen v The Queen (No 2) (1988) 164 CLR 465 - cited Wong v The Queen (2001) 207 CLR 584 -cited
Date of hearing: 20 and 22 April 2015
Counsel for the Applicant: Mr N Harrington and Mr M McKenney
Counsel for the Respondents: Mr J Gurr and Mr J Fetter
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 774 of 2012
BETWEEN: DIRECTOR OF FAIR WORK BUILDING INDUSTRY INSPECTORATE
AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
JUDGE: TRACEY J DATE OF ORDER: 11 November 2015 WHERE MADE: MELBOURNE
Second Respondent
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 774 of 2012
BETWEEN: DIRECTOR OF FAIR WORK BUILDING INDUSTRY INSPECTORATE
AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
JUDGE: TRACEY J DATE: 11 November 2015 PLACE: MELBOURNE
REASONS FOR JUDGMENT 1 Earlier this year I found that each of the respondents had committed multiple contraventions of general protections provisions contained in Part 3-1 of Chapter 3 of the Fair Work Act 2009 (Cth) ("the Act"): see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 ("the liability judgment"). These reasons should be read in conjunction with those in the liability judgment. The parties have since filed written submissions relating to pecuniary penalties, compensation and other relief sought by the applicant ("the Director") and costs. An oral hearing was conducted on 20 and 22 April 2015. 2 More specifically, the Director sought: Declarations which identified each contravention. The imposition of pecuniary penalties for such contraventions. Orders that the payment of such penalties be made to the Commonwealth of Australia. Orders for the payment of compensation to one of the sub-contractors engaged on the Myer Emporium site. An order that the first respondent ("the CFMEU") pay some of the Director's costs, incurred in prosecuting his application.
DECLARATIONS 3 The Director provided the Court with a draft of declarations which identified the various respondents' contravening conduct by reference to findings made in the liability judgment. 4 The respondents did not formally oppose the granting of declaratory relief. Nor did they submit that any of the proposed directions were inconsistent with findings made in the liability judgment. 5 The Court has power to grant declaratory relief pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth). 6 Any declaratory order made in the exercise of this power must be directed to quelling legal controversy between the parties. The applicant must have a real interest in obtaining the relief sought: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-2. These requirements are satisfied in the present proceeding. 7 It is not appropriate to grant declaratory relief for the purpose of providing an advisory opinion. It will, however, be appropriate to do so in some cases where there has been a contravention of statutory norms. Such declarations must, however, be precise, be based on facts as found and serve a practical purpose: see Australian Competition and Consumer Commission v Digital Products Group Pty Ltd [2006] FCA 1732 at [10]. Declarations may serve an educative purpose in explaining to the public and persons whose conduct is governed by particular legislation, how and why contraventions of that legislation have occurred: cf Director of the Fair Work Building Industry Inspectorate v Cartledge [2014] FCA 1047 at [101]; DP World Sydney Limited v Maritime Union of Australia (No 2) (2014) 318 ALR 22 at 24. 8 In the present proceeding the declarations proposed will have such an effect, particularly in respect of those contraventions by the CFMEU which have occurred but which do not attract pecuniary penalties because of the operation of s 552 of the Act. 9 The declarations sought should be made.
Quantum 10 The Court has power to impose pecuniary penalties if satisfied that a respondent has contravened a civil remedy provision: see s 546(1). Sections 346, 348 and 355 are all civil remedy provisions for the purposes of the Act. The maximum penalties prescribed for a contravention of each provision is 300 penalty units (for a body corporate) and 60 penalty units (for an individual): see ss 539(2) and 546(2) of the Act. The value of a penalty unit at relevant times was $110: see s 12 of the Act and Crimes Act 1914 (Cth), s 4AA(1). As a result the maximum pecuniary penalty available for each contravention by the CFMEU is $33,000 and by individual respondents, $6,600. The Court may order that any pecuniary penalty be paid to the Commonwealth: see s 546(3)(a).
Guiding principles 11 I have recently had occasion to review the principles which are applied by the Court when fixing pecuniary penalties: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 407 at [87]-[100]. What follows is a restatement of those principles together with some additional observations which have application in the circumstances of the present proceeding. I have had regard to these principles when fixing penalties. 12 The principles which guide the determination of appropriate pecuniary penalties in cases such as the present are now well settled: see Director of the Fair Work Building Industry Inspectorate v Cartledge [2014] FCA 1047 at [50] (Mansfield J). 13 The task of the Court is to ensure that any penalty which is imposed is proportionate to the gravity of the contravening conduct: Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (No 2) (2010) 199 IR 373 at 376 (Barker J). 14 The penalty is to be determined by a process of "instinctive synthesis": Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at 567-8 (Gray J), 572 (Graham J). This process involves the Court having regard to all relevant factors before fixing a penalty which brings them all into account. 15 In Kelly v Fitzpatrick (2007) 166 IR 14 at 18-19 I identified a number of potentially relevant and applicable considerations which may be taken into account when the Court is deciding appropriate penalties for contraventions of the Act. They include: "● The nature and extent of the conduct which led to the breaches. • The circumstances in which that 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 and • The need for specific and general deterrence." 16 Each of these considerations has the potential to have both an ameliorative and aggravating impact in the course of the instinctive synthesis process. Depending on the circumstances of a given case a particular factor may have no application or carry little or no weight. 17 As Buchanan J cautioned in McAlary-Smith at 580, lists of this kind are not to be applied rigidly or allowed to subvert the overarching purpose of the penalty fixation process. 18 The Director's contentions referred to many of these considerations and the respondents dealt with most of them in their submissions. 19 Where, as in the present proceeding, multiple contraventions arise from a series of related events which constitute a course of conduct principles of proportionality and consistency come into play in determining the appropriateness of the penalty: McAlary-Smith at 572. 20 The ultimate penalty "must be proportionate to the offence and in accordance with the prevailing standards of punishment": Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at 559 (Lander J); McAlary-Smith at 572. 21 Consistency requires that "[l]ike cases should be treated in like manner": Wong v The Queen (2001) 207 CLR 584 at 591 (Gleeson CJ). The consistency principle does not require a detailed factual comparison between past cases and that presently under consideration with a view to fixing a higher or lower penalty depending on the outcome of the comparative analysis: Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 at 376 (Branson and Lander JJ). 22 It is also necessary to ensure that a respondent is not punished twice for the same conduct. The principle was explained by the Full Court in Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 at 12 as follows: "It [the 'course of conduct' principle] is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is 'the same criminality' and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions." (Original emphasis.) 23 This principle is to be applied separately from and anterior to the final check constituted by the application of the totality principle: Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at 396-7 (Stone and Buchanan JJ). It does not necessarily require the application of a single penalty for all of the contravening conduct: Cahill at 13. 24 A penalty for contraventions of Part 3-1 of the Act must be fixed at a level that is sufficiently high to deter repetition by a contravener and by others who might be tempted to follow suit: cf DP World Sydney Limited v Maritime Union of Australia (No 2) (2014) 318 ALR 22 at 27; Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at 559-560 (Lander J). In Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) (2014) 241 IR 288 at 357 Cavanough J observed that: "… few things could be more destructive to the authority of the Court and to the rule of law than the idea that fines or similar punishment are akin to a tax that, once budgeted for, enable the use of unlawful conduct to achieve industrial outcomes." Put another way (as has been done in the context of contraventions of consumer law) a penalty "must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business": see Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 at 265. The penalty must also reflect the need to maintain public confidence in the regime for which Part 3-1 provides (McAlary-Smith at 580) bearing in mind the maximum prescribed penalties for contraventions and the principle that these maxima are reserved for the worst type of conduct falling within particular proscriptions: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478. 25 The totality principle falls for consideration at the end of the process. It requires the Court to stand back and decide whether the aggregate of multiple penalties fixed by it is appropriate for the total contravening conduct involved: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53 (Goldberg J); Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331 at 350. The principle is designed to "ensure that the aggregate of penalties imputed is not such as to be oppressive or crushing": Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61 at 73 (Tracey J). A consequence of the application of the principle is that the aggregate penalty may be reduced if it is considered to be too great. 26 In fixing a pecuniary penalty the Court will not have regard to any agreed figures or range proposed by the parties: see Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331
Relevant days 27 In the liability judgment (at [19]-[29]), I held that pecuniary penalties could not be imposed on the CFMEU in respect of the conduct of its officials which occurred at the Myer Emporium Site on 28-31 August 2012 (inclusive) and at the McNab Site on 5 September 2012. This was because the CFMEU had been dealt with by the Supreme Court of Victoria for criminal contempt in respect of the conduct of its officials at these sites on these days. The Full Court had held, in Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate (2014) 225 FCR 210 at 220, that these convictions meant that the present proceeding against the CFMEU, to the extent that the Director sought pecuniary penalty orders in relation to conduct on those days, stood dismissed. 28 Argument in relation to pecuniary penalties proceeded on the basis that they could only be imposed on the CFMEU for the contravening conduct of its officials at the Myer Emporium Site on 22, 23 and 27 August and 4 and 6 September 2012 and at the McNab Site on 17 August 2012. 29 This limitation did not apply to the individual respondents who were not defendants in the Supreme Court proceedings. Penalties could be imposed on the individual officials, where appropriate, for their conduct at the two sites on the days on which the CFMEU was held liable for criminal contempt. 30 While judgment on penalties stood reserved the High Court handed down its decision in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 320 ALR 448. The Court held that a contempt proceeding brought under the same Victorian provisions which were relied on by Grocon to secure the criminal contempt convictions and which were relied on to confine the scope for the imposition of pecuniary penalties on the CFMEU in this case, were not criminal proceedings: at 456-7; 462. 31 As a result the parties were invited to file further written submissions as to whether and, if so, what impact the High Court's decision had on the capacity of the Court to impose pecuniary penalties on the CFMEU in the present proceeding. Both parties filed written submissions. 32 The respondents submitted that, while Boral may have affected the question of whether s 553 would have operated to stay the proceeding to the extent that the Director sought a pecuniary penalty against the CFMEU, s 552 presently applies "with the result that the [CFMEU] may not be punished twice for the conduct the subject of the criminal contempts of which it had been convicted" in the Victorian Supreme Court. 33 The Director formally submitted that the decision of the Full Court of this Court, which held that pecuniary penalties could not be imposed on the CFMEU in the present proceeding, was wrongly decided. He conceded, however, that as a single judge, I was bound to continue following the Full Court's decision subject to the outcome of another Full Court appeal, in which judgment stood reserved. That appeal (in proceeding VID 75 of 2015) related to pecuniary penalties and other relief sought against the CFMEU and some of its officials in the course of the same industrial dispute between the CFMEU and Boral which led to the High Court appeal. The Director foreshadowed making submissions to the Full Court, relying on the Boral decision which, if accepted, would call into question the authority of the Full Court's decision in this case. 34 In these circumstances I determined that I would withhold delivering judgment in this proceeding until the decision of the Full Court on the appeal was handed down. 35 In the event that appeal did not proceed to hearing. It was discontinued on 8 October 2015. I therefore proceed on the basis that s 552 precludes the imposition of pecuniary penalties on the CFMEU for contraventions arising from events which gave rise to its convictions in the Supreme Court for criminal contempt.
Courses of conduct? 36 The respondents submitted that the various contraventions arose out of a single course of conduct and that, as a result, the Court should impose no more than a single penalty on each respondent. 37 It may be accepted that the offending conduct which took place at the two sites on various days was directed to the same end: forcing Grocon to accept the Union's demands. It may also be accepted that, save in one instance, the respondents contravened the same two provisions of the Act on each occasion. It does not, however, necessarily follow that a single course of conduct was involved which should attract a single penalty for each respondent. 38 The contravening conduct varied in severity and nature from day to day and from site to site. The details appear in the liability judgment and are summarised below at [72]-[179]. 39 Similar issues arose when Cavanough J was determining appropriate penalties for the CFMEU's contempts of court. In Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) (2014) 241 IR 288 at 324-5 his Honour said that: "In my view, the contempts committed in relation to the [Myer] Emporium site were not unconnected, either as between themselves or in relation to the McNab Site contempt. Nevertheless, I do not accept that the connectedness of the Emporium site contempts and the McNab site contempt mean that I am obliged to fix, in the first place, a penalty that would be appropriate if the 28 August 2012 contempt stood alone, and then merely add nominal or minor penalties for the remaining breaches. … Although all of the contemptuous behaviour comprehended by the Emporium site and McNab site contempts was interrelated, each finding of contempt was framed by reference to a different day. And, as the CFMEU itself submitted, there were some differences between the events which happened on the different days. On the other hand, I do not think that the difference relied on (such as the variation in the number attending and the absence or presence of an attempt by the Grocon workers to gain access to the Emporium site) tended to reduce the objective seriousness of the contempts significantly. And, as the Grocon plaintiffs submit, the ongoing nature of the disobedience tended to worsen it. I would accept that the CFMEU should gain the benefit of the 'single course of conduct' principle and the totality principle, but … I consider that I should impose individual penalties for each of the five findings of contempt comprised within the first and second contempt applications …" 40 The "single course of conduct" principle to which his Honour referred was explained in the decision of this Court in Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1. In their joint judgment Middleton and Gordon JJ said that: "39 As the passages in Williams explain, a 'course of conduct' or the 'one transaction principle' is not a concept peculiar to the industrial context. It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is 'the same criminality' and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions. … 41 As noted above (see [15]), the principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, the court must ensure that the offender is not punished twice for the same conduct. In other words, where two offences arise as a result of the same or related conduct that is not a disentitling factor to the application of the single course of conduct principle but a reason why a court may have regard to that principle, as one of the applicable sentencing principles, to guide it in the exercise of the sentencing discretion: Johnson v R (2004) 205 ALR 346; [2004] HCA 15 at [3]-[4] and [34] and Attorney-General v Tichy (1982) 30 SASR 84 at 92-93 (Tichy). It is a tool of analysis (Tichy at 93) which a court is not compelled to utilise: Royer v Western Australia [2009] WASCA 139 at [21]-[34] and [153]-[156] (Royer). 42 A court is not compelled to utilise the principle because, as Owen JA said in Royer at [28], '[d]iscretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks'. The exercise of the sentencing discretion does not fall to be exercised in a vacuum. It is a matter of judgment to be exercised according to the facts of each case and having regard to conflicting sentencing objectives: see McHugh J in AB v R (1999) 198 CLR 111; 165 ALR 298; [1999] HCA 46 at [14]. For the same reasons, and contrary to the appellants' submissions, even if offences are properly characterised as arising from the one transaction or a single course of conduct, a judge is not obliged to apply concurrent terms if the resulting effective term fails to reflect the degree of criminality involved. Or, in the case of fines, a judge is not obliged to start from the premise that if there is a single course of conduct, the maximum fine is, in the present case, $110,000 for the CFMEU and $22,000 in the case of Mr Mates." (Original emphasis.) 41 When fixing pecuniary penalties the Court has a wide discretion. In exercising that discretion the Court is not bound to treat a series of discrete contraventions of the Act as a single contravention simply because the conduct which gave rise to the contraventions took place for the same or substantially the same purpose. What the Court must do, however, is to ensure that a respondent is not punished twice for the same misconduct. 42 While it may be possible to discern a single course of conduct on a particular day during the currency of a protracted industrial campaign, it does not follow that the conduct over the whole period should be treated as a single course and a single contravention to which a single penalty up to the statutory maximum applies: see Director, Fair Work Building Industry Inspectorate v Cradden [2015] FCA 614 at [16]-[18] (Logan J). 43 In determining appropriate penalties in this case it is necessary to have regard to the particular conduct of each respondent on particular days. That conduct, in each case, varied in its nature, gravity, location and effect from day to day. The blockade at the McNab Site, for example, prevented trucks bringing equipment on to the site and prevented some vehicles leaving. It did not, however, prevent managers and workers entering and leaving the site. The blockade at the Myer Emporium Site prevented workers entering the site on some but not all days. At the McNab Site no attempt was made by the police to facilitate access by the vehicles. At the Myer Emporium Site, on some days, the police attempted to assist workers to enter the site. On some days they were successful; on one they were not. At each site the blockades began and ended on single days and were resumed on a following or later day. This required a conscious decision on the part of those involved in the blockade to attend or not attend the sites on particular days. I consider that the relevant conduct should be assessed and a penalty fixed on a day by day basis. Once this process is complete it will be necessary, in each case, to stand back, apply the totality principle, and ensure that the sum of the penalties imposed are proportionate to the gravity of the particular respondent's offending when viewed as a whole.
THE CONTRAVENING CONDUCT 44 The conduct which gave rise to the various contraventions on the part of the CFMEU and the individual respondents at the two sites has been recorded in the liability judgment. It was undertaken in an effort to force Grocon to agree to demands made by the Union. Foremost amongst these demands was a requirement that Grocon employ persons nominated by the CFMEU so that these nominees could act as site representatives for the CFMEU. The CFMEU also wanted Grocon to agree to the display of CFMEU logos on clothing and equipment. 45 When Grocon resisted these demands the CFMEU embarked on a protracted campaign of unlawful industrial action, the purpose of which was wholly to prevent or curtail productive work on Grocon building sites. The campaign continued for over two weeks. It involved the blockading of entry points to the sites and adjacent carriageways using items such as barbeques and wheelie bins, and the deployment of officials and members. For part of this period the conduct occurred in contumelious disregard of injunctive orders made by the Supreme Court of Victoria. 46 The blockades, particularly at the Myer Emporium Site, involved a good deal of careful planning and organisation. Contact was made with large numbers of members who were encouraged to attend the sites at nominated times and remain there for varying periods. A constant presence was maintained at all the entrances to the Myer Emporium Site during working hours. There was a more sporadic attendance at the McNab Site. Considerable numbers of senior CFMEU officials, including the President and Secretary of the Victoria - Tasmania Divisional Branch of the CFMEU's construction and General Division ("the Branch") attended the sites and co-ordinated arrangements. 47 When Grocon sought assistance from the police to facilitate entry of its workforce to the Myer Emporium Site, attempts by police to force a safe passage were vigorously and successfully resisted by CFMEU officials and members. When police adopted more sophisticated tactics which frustrated the CFMEU's attempts to blockade the site, the Grocon employees who attended for work were verbally threatened and abused by those participating in the blockade. 48 The CFMEU officials directed threats and abuse to Grocon employees at the McNab Site while seeking to prevent access to and egress from the site. 49 It is notable that the Grocon employees, in whose interest the CFMEU was purporting to act, wanted to work, took no part in the blockade and were prepared to run the gauntlet of threats and abuse when approaching their worksite under police protection once the blockade had been partially broken. 50 There were also occasional incidents involving actual and threatened violence at both sites. 51 The Director submitted that the CFMEU and some of the individual respondents had "a record of non-compliance with these kinds of laws that demonstrates a continuing attitude of disobedience of the law, warranting severe punishment." This contention was supported by tables, appended to the Director's submissions. The tables contained a list of some 19 cases, involving contraventions of industrial legislation by the CFMEU, since 2004. In most of these cases the CFMEU was found to have sought, by means of threats, coercion or unlawful industrial action, to achieve industrial outcomes. Most of the cases involved multiple contraventions. 52 Many of the individual respondents were serial contraveners of relevant industrial legislation. 53 A penalty of $3,000 was imposed on Mr Setka for a contravention of s 767 of the former Workplace Relations Act 1996 (Cth) for conduct which occurred in 2008 and an aggregate penalty of $7,000 was imposed for two contraventions of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) ("the BCII Act") in 2008 and 2009. 54 In 2008 Mr Reardon contravened ss 38 and 43 of the BCII Act and a penalty of $5,000 was imposed on him. In 2008 and 2009 he contravened s 43 of the BCII Act on four occasions and an aggregate penalty of $17,000 was imposed on him. A further penalty of $5,000 was imposed for a contravention by him of s 38 of the BCII Act. In 2009 he committed a further contravention of s 38 of that Act and a penalty of $2,500 was imposed on him. 55 In 2008 Mr Christopher contravened s 38 of the BCII Act and an aggregate penalty of $4,500 was imposed. In 2008-9 he contravened s 43 of the BCII Act on three occasions and an aggregate penalty of $12,000 was imposed. In the course of the same dispute he also contravened s 38 of that Act and a penalty of $5,000 was imposed. 56 In 2008 Mr Spernovasilis contravened s 38 of the BCII Act and an aggregate penalty of $5,000 was imposed. In 2008 and 2009 he contravened s 43 of the BCII Act on four occasions and a total penalty of $17,000 was imposed. 57 In 2005 Mr Oliver contravened s 43 of the BCII Act, s 45 of that Act and s 298P of the Workplace Relations Act. An aggregate penalty of $10,000 was imposed which was suspended as to half this amount. 58 In 2008 Mr Edwards contravened ss 38 and 43 of the BCII Act and a penalty of $13,000 was imposed on him. 59 In 2008 Mr Stephenson contravened s 38 of the BCII Act and a penalty of $5,000 was imposed. In the course of another dispute in the same year he contravened ss 38 and 43 of the BCII Act and a penalty of $5,000 was imposed. In 2009 Mr Stephenson committed multiple contraventions of ss 43 and 44 of the BCII Act and also contravened s 38 of that Act. Penalties totalling $71,000 were imposed on him for these contraventions. In 2010 Mr Stephenson was found to have contravened s 43 on three occasions. An aggregate penalty of $29,000 was imposed on him for these contraventions. 60 In 2007 Mr Johnston contravened s 38 of the BCII Act and a penalty of $4,600 was imposed on him. 61 The Director also provided a collection of judicial observations derived from some of these cases in which members of this Court had noted the CFMEU's propensity to deliberately flout industrial legislation which proscribe coercive conduct. 62 The circumstances of these cases were not identical to those in the present case. They, nonetheless, bespeak a deplorable attitude, on the part of the CFMEU, to its legal obligations and the statutory processes which govern relations between unions and employers in this country. This ongoing willingness to engage in contravening conduct must weigh heavily when the need for both specific and general deterrence is brought to account. 63 Neither the CFMEU nor any individual respondent is to be punished again for earlier misconduct. They are, however, to be punished more severely than they would have been had they had no adverse record or been responsible for only a few isolated incidents over a period of many years. Their continued willingness to engage in contravening conduct supports the view that earlier penalties, some of them severe, had not had a deterrent effect: cf Veen v R (No 2) (1988) 164 CLR 465 at 477-8. The longer such recidivism continues the more likely it is that this consideration will carry greater weight than the principle that the maximum available penalty must be reserved for the worst possible offending. 64 None of the respondents expressed any contrition for the misconduct in which he or it engaged. Nor did any respondent proffer any assurances that there would be no repetition of the impugned conduct. 65 The respondents emphasised that the gravity of their offending differed. They submitted, for example, that Messrs Stephenson and Johnston's liability arose from no more than their participation in the crowd blockading the Myer Emporium Site on some days. 66 They directed attention to the public utterances of Messrs Edwards and Oliver when talking to those participating in the blockades and to reporters. They accepted that findings had been made that these statements encouraged and incited others to participate in the blockades. They also noted passages in which the two men had counselled against violence and disorderly conduct. The respondents further submitted that none of the contraventions fell into what could be described as the "worst" category of offending. 67 They also pointed to the limited evidence relating to the economic and other consequences of the various contraventions. 68 I accept these submissions.
CONSIDERATION 69 Having regard to the applicable principles and to the general considerations to which I have just referred, I turn now to the specific contraventions of the Act by the CFMEU and the individual respondents with a view to fixing appropriate pecuniary penalties. In doing so I will not repeat all of what has already been said about the contravening conduct and its effects in the liability judgment. 70 Save for one instance I have found that each of the impugned acts of each respondent contravened both ss 348 and 355 of the Act. Given that the contraventions occurred because of the same misconduct, it is appropriate that, in each of these instances, a single penalty should be imposed for the contravention of both provisions. 71 I will deal with each of the individual respondents in order and, in each case, its or his contravening conduct in chronological order. As the CFMEU's liability is vicarious, I will deal with it last.
Mr Setka 72 At all relevant times Mr Setka was an Assistant Secretary of the Branch. He played a prominent role in the blockading of both the McNab and Myer Emporium sites. I readily infer that he played a leading role in the organisation and implementation of the blockades imposed on both sites. 73 Mr Setka has a long and deplorable history of contravening industrial laws. In 2010, Mr Setka was found to have engaged in a serious contravention of s 767 of the Workplace Relations Act by his conduct, which included "a serious episode involving Mr Setka screaming at [two managers], employing foul language and threatening them in the clearest possible way": see Gregor v Setka [2010] FMCA 690 and Setka v Gregor (No 2) [2011] FCAFC 90. As set out above, Mr Setka was also found to have contravened the BCII Act in 2008 and 2009 by preventing the delivery of materials to a construction site with intent to coerce the builder to allocate particular responsibilities to an employee. 74 On 17 August 2012 Mr Setka was present at the McNab Site for a considerable period. Whilst there he was one of a number of CFMEU officials and members who stood in the roadway and blocked the passage of a mini bus being driven by Mr Andrew Brinzi. When the vehicle came to a stop Mr Setka punched the windscreen and was one of a number of people who directed foul and abusive language to Mr Brinzi. As Mr Brinzi backed up the vehicle to move away from the men in the roadway he was approached by Mr Setka who told him that he hoped that Mr Brinzi would "die of your cancer" and told him that he would "come after [him]". Mr Setka was both physically and verbally violent. His comment to Mr Brinzi was particularly callous given that Mr Brinzi, apparently to Mr Setka's knowledge, was being treated for cancer at the time. The threat that Mr Setka would "come after" Mr Brinzi was particularly ominous. Mr Setka's misconduct left Mr Brinzi shaken and concerned. Mr Brinzi was targeted because he was a loyal Grocon manager and he became a human victim of the CFMEU's coercive campaign against the company. 75 A penalty of $4,000 should be imposed. 76 Mr Setka spent a large part of the day on 22 August 2012 in the vicinity of the Myer Emporium Site. At about 2:00 pm in the afternoon he was one of a group which approached Mr Graham Smith, a supervisor employed by a security company which was contracted by Grocon to provide security at its site. The group forced Mr Smith up an alleyway. Mr Setka swore at him repeatedly. When Mr Smith protested, Mr Setka told him to shut up and that if he didn't he [Mr Setka] would shut Mr Smith up permanently. Members of the group, including Mr Setka, then tried to push Mr Smith into a side wall. Mr Smith was deeply shaken by the incident and remained strongly affected by it when he gave his evidence to the Court some two years later. I readily infer that Mr Smith was mistreated because he was known to Mr Setka as a security staff supervisor on the Myer Emporium Site which was under blockade at the time. 77 One penalty of $5,000 should be imposed. 78 On the following day Mr Setka was also at the Myer Emporium Site for some time. Part of this time was spent in the company of other CFMEU officials and members in the Little Bourke Street loading bay. No misconduct beyond his presence as one of those impeding access to the site was alleged. 79 One penalty of $500 should be imposed. 80 On 28 August 2012 an attempt was made by Grocon employees to enter the Myer Emporium Site with police assistance. Initially, a small group of Grocon employees approached a group of CFMEU officials including Mr Setka. A police officer was also present. The Grocon employees intimated that they wished peacefully to enter the site. Mr Setka stood by as Mr Reardon said that the Grocon employees would not be allowed to pass through the large crowd of CFMEU members who were blocking entrances to the site. When, a short time later, the police attempted to open a passage through the throng so that the Grocon employees could attend their workplace Mr Setka was one of the CFMEU officials who urged members of the crowd to resist the police. In this they were successful. 81 One penalty of $2,500 should be imposed. 82 Not long after the police had been unable to facilitate the employees' entry to the site Mr Setka approached the employees who had assembled at the nearby entrance to a building in which Grocon had offices. Mr Setka told the employees that they should be taking part in the blockade and when one of the employees responded that they just wanted to go to work Mr Setka called them "fucking dogs", "rats" and other pejorative terms. These utterances were menacing and caused a senior police officer to recommend that the employees retreat inside the building in order to defuse a tense standoff. 83 In so acting Mr Setka contravened s 346 of the Act. A penalty of $3,500 should be imposed for this contravention. 84 On 29 August 2012 Mr Setka was again present as part of a large group of CFMEU members who were blockading the Myer Emporium Site. He was present for some time. No misconduct beyond his presence as one of those impeding access to the site was alleged. 85 One penalty of $500 should be imposed. 86 On 30 August 2012 Mr Setka was again present at the Myer Emporium Site. At times he stood with groups in the loading bay and, at other times, he was present in front of gate 1. 87 Again no allegation of misconduct beyond his presence at the site was alleged. 88 One penalty of $500 should be imposed. 89 On 31 August 2012 Mr Setka was again present at the Myer Emporium Site in company with officials of the Branch. Again, he formed part of the group who were blocking entrances to the Myer Emporium Site. 90 One penalty of $500 should be imposed. 91 On 4 September 2012 Mr Setka was, yet again, present outside the Myer Emporium Site. In addition to blocking access to the site, Mr Setka was one of a group, standing in Lonsdale Street, which yelled verbal abuse at Grocon workers who had entered the site with police assistance. 92 One penalty of $750 should be imposed. 93 On 5 September 2012 Mr Setka was at the McNab Site. He was one of a group of CFMEU members who congregated on the road at the entrance to the site and prevented or interfered with the free passage of vehicles on to the site. At about 6:40 am a truck arrived. Members of the group stood on the roadway and prevented the truck proceeding. Mr Setka, together with Mr Reardon, moved in front of the truck and spoke to the driver. Not long afterwards the truck departed without having delivered its load. During this period Mr Jamie Rigg, Grocon's Project Manager at the site, was present. Mr Setka said to him "[y]ou eat dog food". 94 Mr Setka's misconduct was serious. He took part in the blocking of a public road and thereby prevented the delivery of necessary equipment to the site. In the process he directed gratuitous abuse at a Grocon manager. 95 A penalty of $2,000 should be imposed.
Mr Reardon 96 Mr Reardon was an active participant in relevant events in his capacity as Vice President of the Branch. 97 From early in the morning until about 3:30 pm in the afternoon of 17 August 2012 Mr Reardon was present in the roadway outside the McNab Site. Initially he was alone. When, at about 6:00 am, a semi-trailer arrived carrying a tower crane he placed himself in the middle of the public roadway thereby forcing the truck driver to stop. He then made a telephone call to someone who he directed should arrange "for the boys to come". The "boys" did come and joined Mr Reardon in blocking the roadway. They included other senior officials of the Branch including Messrs Setka and Spernovasilis. While awaiting reinforcements Mr Reardon was asked on a number of occasions by a security guard and a Grocon manager to move out of the way so that the truck could proceed on to the site. On both occasions he refused. On one of them he told the security guard that "[y]ou have done your job. Call the police. It is for the police to now deal with it." The police were called and did attend but were ineffectual. At various times during the day Mr Reardon photographed Grocon employees at and near the site. 98 The semi-trailer was moving down a public roadway to deliver sections of a tower crane which were to be erected on the site. Mr Reardon arrogated to himself the authority to prevent the vehicle from passing along a public road. He did so in order to impede work on the Grocon site in order to put pressure on the company to accede to the CFMEU's demands. It was Mr Reardon who was responsible for summoning a score or so of other CFMEU members and officials to join him in preventing the vehicle from entering the site. His taking of photographs of Grocon employees was plainly intimidatory. 99 Towards the middle of the day Mr Reardon was one of a number of CFMEU members and officials who blocked the roadway to prevent a mini bus, being driven by Mr Andrew Brinzi, from driving down McNab Avenue. The group yelled abuse at Mr Brinzi and his passenger and pressed up against the bus. On police advice Mr Brinzi reversed the bus away from the blockade. As he did so, the vehicle was followed by Messrs Setka and Reardon. Mr Reardon and Mr Setka approached the vehicle and Mr Reardon stood by while Mr Setka threatened Mr Brinzi and made the disgraceful statement that he hoped that Mr Brinzi would "die from your cancer". 100 One penalty of $5,500 should be imposed. 101 On 22 August 2012 a CFMEU organised blockade took place at the Myer Emporium Site. The workers who would normally have had unimpeded access to the site that morning had gathered about a block away outside the State Library. Mr Reardon approached the group and urged them to attend a barbeque which the CFMEU officials had organised in the Little Bourke Street loading bay and then to go home. 102 At about the same time, Mr Reardon was seen at the western gantry gate on Lonsdale Street filming a security guard, holding his mobile phone inches from the guard's face. As he did so he said "come on are you going to hit me?" This was plainly a provocative act. Mr Reardon remained at or near entrances to the site for most if not all of that morning. 103 One penalty of $1,250 should be imposed. 104 On the following day the blockade of the Myer Emporium Site continued. Mr Reardon was present at or near entrance points to the site as a participant in the blockade. 105 One penalty of $500 should be imposed for these contraventions. 106 On 27 August 2012 Mr Reardon was one of a number of branch officials who occupied the Little Bourke Street loading bay in the course of the morning. 107 One penalty of $500 should be imposed. 108 The first attempt by police to facilitate the entry of Grocon workers to the Myer Emporium Site took place on the morning of 28 August 2012. Mr Reardon was actively involved in resisting the police. In an attempt to avoid confrontation some Grocon managers approached Mr Reardon and other CFMEU officials, in the presence of a police officer, and asked that the workers should be permitted to pass through the blockading crowd and enter the site. It was Mr Reardon who responded by saying no. When the police sought to open a path for the workers Mr Reardon joined the crowd that was pushing back against the police line. 109 One penalty of $1,500 should be imposed. 110 On 29 August 2012 Mr Reardon was present outside the Myer Emporium Site in company with other officials and members of the CFMEU who were blockading the site. 111 One penalty of $500 should be imposed. 112 On 30 August 2012 Mr Reardon was again present as part of the crowd which, throughout the morning, blocked access to Gate 1 and other entrances at various times. 113 A penalty of $500 should be imposed. 114 31 August 2012 was the first day on which the police succeeded in facilitating access by Grocon workers to the Myer Emporium Site. As the workers passed a barricade which the police had erected Mr Reardon was seen to be filming workers on his mobile phone. Whether he was doing so or not his actions were plainly intimidatory and intended to be so. 115 These contraventions should attract a single penalty of $1,000. 116 On 4 September 2012 Grocon workers were again able to enter the site with police assistance. As they disembarked from buses in the Bourke Street Mall Mr Reardon was present and appeared to again use his mobile phone to film workers. As a Grocon manager walked past him Mr Reardon threatened him saying "[y]ou fucked up Brinzi, you're going to cop it." Mr Reardon remained at and around the site in the company of other officials in the course of the day. 117 One penalty of $1,500 should be imposed. 118 On 5 September 2012 Mr Reardon returned to the McNab Site. He was in company with Mr Setka and other members and officials of the CFMEU. He was again involved in preventing a truck which was to deliver equipment to the site from proceeding down McNab Avenue. The circumstances have been outlined above at [93]. 119 One penalty of $1,750 should be imposed on Mr Reardon for these contraventions.
Mr Christopher 120 On 22 August 2012 Mr Christopher accompanied Mr Reardon when Mr Reardon addressed the Grocon workers at the State Library: see above at [101]. About an hour later he and two other Branch officials stood in front of the western gantry gate entrance to the Myer Emporium Site and prevented two Grocon managers from entering the site. Mr Christopher remained at the site for some time during that day. 121 One penalty of $500 should be imposed. 122 In the course of the successful blockade of the Myer Emporium Site on 28 August 2012, after the police had withdrawn, Mr Christopher addressed the crowd using a megaphone. He urged them not to go away but to "stick around and hold the line". The blockade continued. Mr Christopher was instrumental in ensuring that it did. 123 A single penalty of $1,500 should be imposed for these contraventions. 124 On 30 August 2012 Mr Christopher again addressed the crowd gathered outside the site using a loud hailer. He encouraged them to "keep turning up". They did so. No confrontation with the police occurred on this day. 125 A single penalty of $1,000 should be imposed for these contraventions.
Mr Spernovasilis 126 On 17 August 2012 Mr Spernovasilis was one of the Branch officials who joined Mr Reardon outside the McNab Site: see above at [97]. He was one of those who prevented vehicle access to the site. 127 A single penalty of $500 should be imposed for this contravention. 128 On the morning of 22 August 2012 Mr Spernovasilis was present outside the Myer Emporium Site. He was part of a group gathered at the western entry to the gantry on Lonsdale Street. A short time later he was one of a group who prevented two Grocon managers from obtaining access to the site from the western gantry entry. Mr Spernovasilis remained at the site for some time during that day. 129 These contraventions should attract a single penalty of $1,000. 130 On 23 August 2012 Mr Spernovasilis was outside the site. He was at Gate 1 at various times throughout the morning. 131 A single penalty of $500 should be imposed for these contraventions. 132 On 27 August 2012 Mr Spernovasilis was one of a group of Branch officials and members who occupied the loading bay off Little Bourke Street during the morning. 133 One penalty of $500 should be imposed for these contraventions. 134 On 28 August 2012 Mr Spernovasilis was present when Mr Reardon told Grocon officials that workers would not be permitted to enter the site: see above at [108]. After the police attempt to breach the blockade had failed Mr Spernovasilis was one of a number of Branch officials who stood with Mr Oliver when he sought to justify the CFMEU's conduct to the press. 135 One penalty of $750 should be imposed for these contraventions. 136 Mr Spernovasilis was one of those who blockaded the site on 29 August 2012. 137 A penalty of $500 should be imposed for these contraventions. 138 On 30 August 2012 Mr Spernovasilis actively assisted in the provision of amenities to those blockading the site. He provided food and other produce for their consumption. 139 One penalty of $750 should be imposed for these contraventions. 140 On 31 August 2012 Mr Spernovasilis also provided sustenance by way of food to those involved in the blockade. When, during the afternoon, the police barricades were removed it was Mr Spernovasilis who urged members of the crowd who had been gathered outside the fencing to resume positions outside Gate 1. The crowd did as they had been bidden. 141 A penalty of $1,000 should be imposed for these contraventions. 142 On 4 September 2012 Mr Spernovasilis was again outside the Myer Emporium Site. After Grocon workers had entered the site they were subject to verbal abuse from a crowd standing in Lonsdale Street. Mr Spernovasilis was one of a number of officials of the Branch who were members of that crowd. In the course of the morning he also walked along Lonsdale Street giving instructions to the crowd using a loud hailer. 143 A single penalty of $1,500 should be imposed for these contraventions.
Mr Oliver 144 At relevant times Mr Oliver was the Secretary of the Branch. 145 On 28 August 2012 Mr Oliver was one of those blockading the Myer Emporium Site. After the police had failed to secure entry for Grocon employees Mr Oliver was the spokesman for the CFMEU in seeking to justify what had occurred. 146 One penalty of $1,000 should be imposed for these contraventions. 147 On 29 August 2012 Mr Oliver was again part of the group blockading the Myer Emporium Site and again he sought to justify the CFMEU's conduct in interviews with the press. 148 A penalty of $1,000 should be imposed for these contraventions. 149 On 31 August 2012 Mr Oliver was one of those blockading the site and the Branch's spokesman in dealing with the media. 150 A penalty of $1,000 should be imposed for these contraventions. 151 On 4 September 2012 Mr Oliver was yet again present as a member of the blockading group outside the site. 152 A penalty of $500 should be imposed for these contraventions.
Mr Edwards 153 Mr Edwards was, at relevant times, the President of the Branch. He played a particularly active role in organising and conducting the blockade of the Myer Emporium Site. 154 On 28 August 2012 Mr Edwards was outside the site when the police were preparing to clear a path for the Grocon workers. Using a megaphone he told the crowd that if anyone recognised any Grocon employees "get personal, up close and personal with them right." He also directed the crowd to form up closely to present a solid phalanx to the police. He also encouraged those present to ring others with a view to increasing the number of blockaders present. As the police line advanced it was Mr Edwards who shouted at the crowd, through a megaphone, urging them to hold their ground. After the police withdrew Mr Edwards congratulated the "boys" saying "we've done a top job." 155 A penalty of $2,500 should be imposed. 156 On 29 August 2012 Mr Edwards, was in company with other Branch officials, as part of the blockading group outside the site. 157 A penalty of $500 should be imposed. 158 On 31 August 2012, after Grocon employees had been able to enter the site with police assistance, Mr Edwards harangued the crowd saying things such as: "We are here to show that we are here to stay" and "[t]here ain't bloody gonna be no bloody work done on that job today." 159 A penalty of $750 should be imposed. 160 On 4 September 2012, after workers had again entered the site with police assistance, Mr Edwards told the crowd, which was in the process of dispersing, that they should be "[b]ack here bright and early [tomorrow]." 161 A penalty of $750 should be imposed. 162 On 6 September 2012 Mr Edwards again was actively involved in organising the blockade and addressing the crowd. 163 A penalty of $750 should be imposed.
Mr Stephenson 164 Mr Stephenson was, at relevant times, an employed organiser attached to the Branch. 165 On 28 August 2012 Mr Stephenson was one of those who formed part of the crowd which resisted police attempts to facilitate the entry of Grocon employees to the Myer Emporium Site. 166 A penalty of $500 should be imposed. 167 On 4 September 2012 Mr Stephenson was one of a number of officials of the CFMEU who were part of the group blockading the site. 168 A penalty of $500 should be imposed.
Mr Johnston 169 Mr Johnston was a member of the Branch's Branch Council. 170 On 27 August 2012 Mr Johnston was one of a group of people wearing CFMEU branded clothing who occupied the loading bay at the Myer Emporium Site. 171 A penalty of $500 should be imposed. 172 Mr Johnston was part of the crowd which resisted police attempts to forge a pathway along which Grocon employees might enter the site on 28 August 2012. 173 A penalty of $500 should be imposed. 174 On 31 August 2012 Mr Johnston was again part of the group blockading the site. 175 A penalty of $500 should be imposed. 176 On 4 September 2012 Mr Johnston was again one of those blockading the site. 177 A penalty of $500 should be imposed.
The CFMEU 178 As already noted the CFMEU bears vicarious liability for the acts of its officials. 179 The following penalties should be imposed on it in respect of the conduct of those officials on particular sites and particular days as follows: 17 August 2012 - McNab Site - $25,000. 22 August 2012 - Myer Emporium Site - $15,000. 23 August 2012 - Myer Emporium Site - $12,500. 27 August 2012 - Myer Emporium Site - $12,500. 4 September 2012 - Myer Emporium Site - $20,000. 6 September 2012 - Myer Emporium Site - $10,000.
Totality principle 180 In each case where multiple penalties have been imposed I have had regard to the totality principle when fixing the appropriate penalty.
COMPENSATION FOR SUB-CONTRACTOR 181 The Director, in his second further amended statement of claim, alleged that one of the sub-contractors at the Myer Emporium Site, Vetka Pty Ltd ("Vetka"), had suffered loss and damage by reason of the CFMEU's contraventions of ss 348 and 355 of the Act. The Director sought an order for the payment of compensation to Vetka pursuant to s 545 of the Act. The Director initially particularised the loss claimed on behalf of Vetka as approximately $7,236. 182 Vetka was engaged to provide surveying services at the site. 183 The losses, as originally claimed, were made up of $4,345 in respect of wages paid to employees who were scheduled to perform work at the site, who were prevented, by the blockade, from doing so and who could not usefully be redeployed; $651 in respect of what were referred to as off-site overhead costs; and $2,240 in respect of idle plant and equipment. As will be seen these figures were adjusted following the evidence given at the trial. 184 The principal evidence relating to Vetka's losses was given by Mr Andrew Strachan who was a director of the company at relevant times. He gave evidence that Vetka had been engaged by Grocon to provide surveying services at the Myer Emporium Site. Two professional employees of Vetka, Mr Garrett and Mr Camo had been assigned to perform this work. They had been scheduled to attend the site to perform work on 22, 23, 24, 27, 28, 29, 30 and 31 August 2012 and in the week commencing 4 September 2012. They were able to return to the site on 5 September 2012. On each day they were to be at the site for eight hours. Mr Garrett's hourly rate was $42.29 ($338.32 per eight hour working day) and Mr Camo's rate was $25.625 ($205 per eight hour working day). 185 On each of the days Messrs Garrett and Camo were on stand-by to attend at the site. Whether they did so or not was determined each morning by Grocon staff. On each of the nine mornings (save one on which Mr Garrett took leave) they were told by Grocon staff that they were not required. They returned to Vetka's offices and performed administrative work and undertook some recalibration of instruments. 186 On each of the days Vetka had employees involved at work on some 60 to 70 other sites. Messrs Garrett and Camo could not readily be deployed on most of those sites because a period of induction was required for contractors who had not previously worked on the sites. Mr Strachan was not aware of any occasion on which either Mr Garrett or Mr Camo had been sent to other sites whilst on stand-by to return to the Myer Emporium Site. 187 On 30 August 2012 there was alternative work available for two surveyors. This work was done and was charged out by Vetka at $748. 188 The Director, in final submissions, contended that $3,803.56 should be allowed for wages. This sum was calculated as follows: Mr Garrett - eight days at $338.32 - $2,706.56. Mr Camo - nine days at $205 - $1,845.00 Sub-total $4,551.56 Less invoiced work - 30 August 2012 - $ 748.00 Total $3,803.56 189 These calculations do not bring into account the administrative and other work undertaken by Messrs Garrett and Camo on the relevant days. Whilst this work was of a different character from that which they would have been performing at the Myer Emporium Site, it was, nonetheless, work of value to Vetka. An allowance should be made for it. I would make a further reduction and allow $3,000 for wages under this head. 190 The claim for "off-site overheads" was said to be the sum representing 15 per cent of the costs of employing the two surveyors. These expenses included professional indemnity insurance and payroll administration costs. 191 These overheads were payable in respect of the two employees whether they were working or not. They do not constitute a loss suffered by Vetka because of the respondents' contraventions of the Act. 192 No allowance should be made under this head. 193 The other element of the compensation claim related to the hire of surveying equipment. Messrs Garrett and Camo had taken various items on to the site to assist them in the performance of their work. The equipment was left onsite when they last attended before 22 August 2012 and they were unable to obtain access to it until they returned to the site on 5 September 2012. 194 Vetka hired similar equipment on 24 August 2012 for a four week period. It did so in order that Messrs Garrett and Camo could perform alternative work should it become available while they were unable to attend the Myer Emporium Site. 195 The Director's original claim was for the full $2,240 which was the cost to Vetka of hiring this equipment for the full hiring period. 196 In closing submissions the Director accepted that the claim could only be justified to the extent that Messrs Garrett and Camo were unable to obtain access to the equipment left at the Myer Emporium Site. This was a period of 12 days. On a pro-rata basis this reduced the claim to $926.90. 197 There was some doubt as to whether the hired equipment had ever been used. Mr Strachan had not been responsible for the hiring and he was unable to say whether or not the equipment had been used by any Vetka employees during the four week period. 198 Vetka was deprived of access to its equipment at the site because of the contraventions of the Act. If there was to be any chance of mitigating the losses to Vetka by deploying Messrs Garrett and Camo to other surveying duties, it was a prudent precaution to replace the equipment on a temporary basis. I consider that this claim is warranted to the extent contended for by the Director. 199 Compensation in the sum of $3,926.90 should be paid to Vetka.
COSTS 200 The Director sought an order that the CFMEU pay his costs incurred in establishing the contraventions which occurred at the Myer Emporium Site on 28, 29, 30 and 31 August 2012 and at the McNab Site on 5 September 2012. This was because, so it was contended, the CFMEU had required him to lead evidence relating to events on these days at the two sites despite the fact that this conduct was substantially the same as that which had been established in the Supreme Court contempt proceedings: see Grocon Constructors (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 234 IR 59. 201 The Director did not seek costs orders against individual respondents. 202 The Director acknowledged the constraint imposed by s 570(1) of the Act on the granting of costs orders in proceedings such as the present. He submitted, however, that the exception, provided for in s 570(2)(b) of the Act, applied. That exception empowers the Court to make a costs order if satisfied that a party's "unreasonable act" has caused the other party to incur the relevant costs. 203 The position adopted by the respondents, in their pleadings and at trial, was one of reliance on the penalty privilege and the privilege against self-incrimination. They were entitled to do so. It was not unreasonable for the respondents to adopt this course. It was for the Director to prove his case in the absence of any relevant admissions. 204 No relevant exception to the proscription in s 570(1) of the Act has been established. 205 The Director's application for costs must be refused. I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.
Director of Fair Work Building Industry Inspectorate
Construction, Forestry, Mining and Energy Union
[2009] WASCA 139
[2010] FMCA 690
(1992) 175 CLR 564
(2010) 199 IR 373
(1997) 145 ALR 36
(2008) 165 FCR 560
(2015) 320 ALR 448
(2010) 269 ALR 1
(2014) 225 FCR 210
(2015) 229 FCR 331
(2014) 318 ALR 22
(2014) 241 IR 288
(2013) 234 IR 59
(2007) 166 IR 14
(2008) 168 FCR 383
(2008) 171 FCR 357
(2007) 158 FCR 543
(2012) 287 ALR 249
(2008) 177 IR 61
(1988) 164 CLR 465
(2001) 207 CLR 584
(2004) 205 ALR 346
(1982) 30 SASR 84
(1999) 198 CLR 111